PN1

THE COMMISSIONER: Right, Ms Cruden and Ms O'Brien.

PN2

MS L CRUDEN: Hello, Commissioner.

PN3

THE COMMISSIONER: In Melbourne we have got Ms Biddlestone and Mr Galbraith and Ms Coleman. Can everyone hear me okay?

PN4

MR M GALBRAITH: Yes.

PN5

MS CRUDEN: Certainly.

PN6

THE COMMISSIONER: I know you can. Can you hear me in Melbourne?

PN7

MS CRUDEN: Just confirming, Commissioner, I am Ai Group - Workplace Lawyers represents Ai Group - just checking there's no objection to us being at the conference today.

PN8

THE COMMISSIONER: You have been granted permission to appear previously in this case?

PN9

MS CRUDEN: Yes.

PN10

THE COMMISSIONER: Yes, so that's fine.

PN11

MS CRUDEN: Thank you.

PN12

THE COMMISSIONER: Here we are. We were to be having a hearing today, but we're not, we are in a conference. There are three things, I think, that need to be discussed.

PN13

The first is the proposed - proposed by AiG and supported by SDA - alteration to the part-time provision and consequential changes to rostering and the overtime provisions. The second thing is - what are we calling it - the facilitative provision to vary the early start, and then there's just programming generally from here. I think that's the agenda for today. Does anyone have anything else that anyone wants to discuss?

PN14

MS CRUDEN: No, Commissioner, that's fine.

PN15

THE COMMISSIONER: Let's start with the part-time provision. The AiG have attached a draft determination. There was just a couple of things I wanted to discuss about that and these might be things that the parties consider at some other time. The first is at 12.7. Yes, (d):

PN16

The agreement to work additional hours may be withdrawn by a part-time employee with 14 days' written notice.

PN17

I don't think that provision is in other awards, is it, in terms of an analogous provision?

PN18

MS CRUDEN: It's not in the Restaurants/Hospitality.

PN19

THE COMMISSIONER: What was the thinking behind that provision?

PN20

MS BIDDLESTONE: Because our understanding is, at the time of engagement, an employee and employer will agree to the guaranteed minimum number of hours and to working additional hours within a certain availability, so there needs to be a mechanism whereby the employee, during the course of their employment - - -

PN21

THE COMMISSIONER: Can you move the microphone across?

PN22

MS BIDDLESTONE: Sorry. There needs to be a mechanism throughout the duration of someone's employment for them to have the ability to withdraw their agreement to work additional hours under this type of arrangement.

PN23

THE COMMISSIONER: Yes, but there's no mechanism in the other clauses; is that right?

PN24

MS BIDDLESTONE: I don't think there is. We think that this is suitable for the industry that this award is for.

PN25

THE COMMISSIONER: Yes, I see that.

PN26

MS BIDDLESTONE: If you don't have a mechanism for an employee to withdraw agreement to do additional hours, then what happens if an employee only wants to work the guaranteed minimum number of hours?

PN27

THE COMMISSIONER: Yes.

PN28

MS BIDDLESTONE: Our view is that there has to be some kind of mechanism within the clause for this to happen.

PN29

THE COMMISSIONER: Yes, I understand that, which is leading to the second question, which is why would it be 14 days, not seven days, to the extent that that's - I'm just wondering what the difference between that is and roster alteration which is eventually landed on seven days. Does that make sense?

PN30

MS CRUDEN: I think the thinking in that was certain employees have a longer roster period, so it may be that they are released 14 days in advance, so that's why 14 days was chosen in this instance. There are also in this industry management rosters by managers who are covered by the award, but they might be prepared for a month on period.

PN31

THE COMMISSIONER: Yes.

PN32

MS CRUDEN: So in the event that those longer rosters are issued earlier, we needed greater flexibility for when an employee couldn't work the additional.

PN33

THE COMMISSIONER: Okay.

PN34

MS CRUDEN: So it was the roster cycle happening.

PN35

THE COMMISSIONER: All right. The next issue is the Hospitality Award and, not surprisingly, we have been looking at it in comparison with the - I note in your submissions you have drawn some distinctions, but the other one that I'm not sure if you do mention is the requirement for two days off, which is in Hospitality, I think. Is there something similar in Fast Food or does it not matter? Have you thought about it?

PN36

MS BIDDLESTONE: Commissioner, apologies, we don't have the Fast Food Award in front of us, but we think that it's captured in 12.7(a) where you have to be rostered in accordance with the hours of work clause. I think that clause may talk about consecutive days and how many, but if Ms Cruden and Ms O'Brien could - if they have a copy to confirm that, that would be good.

PN37

MS CRUDEN: I am just checking that now, if I can have a moment?

PN38

THE COMMISSIONER: Yes.

PN39

MS CRUDEN: Commissioner, clause 26.2(ii) states:

PN40

A full time or part time employee shall be paid overtime for all work as follows -

PN41

and then, (a), in excess of:

PN42

(ii) five days per week or six days in one weekend if, in the following week, ordinary hours worked are not more than four days.

PN43

THE COMMISSIONER: Yes. How does that deal with the two days off?

PN44

MS CRUDEN: In the sense that ordinary time is on five days - can be on five days per week, so - - -

PN45

THE COMMISSIONER: It follows from that? But that doesn't deal with the two clear days off, though, does it?

PN46

MS BIDDLESTONE: Apologies again, I don't have the Hospitality Award in front of me, but the two consecutive days off that's called out in the part-time clause in the Hospitality Award may have been done to reflect the rostering and ordinary hours provisions within that award.

PN47

THE COMMISSIONER: Yes.

PN48

MS BIDDLESTONE: Whereas what we have sought to do is capture the rostering and overtime provisions that were contained in the Fast Food Award. So that's why it might not match up completely.

PN49

THE COMMISSIONER: Sure. That's fine if it is the case. I just raised it - if it's not there to be questioned, the Bench might reasonably ask why and how do you get that surety. When we get to the hearing stage, we might say some more about that.

PN50

The last bit I had on the proposed clause - and I know this came out of the conference where there was a discussion about this provision and, in a sense, the way this came about was all focused on part-time employees, but the roster provision, which doesn't currently exist in the Fast Food Award but, as part of this, is being put in, only deals with part-time employees.

PN51

It's based on the Hospitality clause, which, of course, deals with rosters for full-time and part-time employees, and so the logical question arose in my mind, well, now we are sitting back and looking at the award as a whole, why would we only have this applying - why would we only have a roster clause for part-time employees and not full-time employees, which is a simple proposition, and it seemed intuitively obvious that that might have something going back. Ms Biddlestone was saying there might be some unintended consequences of that, but I'm not sure.

PN52

MS BIDDLESTONE: Sorry, I missed that last bit.

PN53

THE COMMISSIONER: The last bit was it might be, given what you have raised about the differences in the way Fast Food deals with hours' provisions, there might be some intended consequences of that, but I'm not sure that there would be because it's really just saying there's a roster that would be made available and it doesn't seem logical that it would only be available - now you're creating a right to a roster, why would you just have that right for part-time employees and how would that be consistent with the objective?

PN54

MS CRUDEN: Commissioner, in terms of considering the issues, I am just mindful that in the last conference where the proposed term was discussed - it was obviously an unrecorded and without prejudice discussion - I am curious whether or not it may be possible to continue the discussion and what the SDA - - -

PN55

MS BIDDLESTONE: Sorry, we are having trouble hearing.

PN56

MS CRUDEN: Ms Biddlestone, I just indicated that the last occasion on which the proposed terms of the flexible part-time clause were discussed between the two parties, SDA and Ai Group, was on a without prejudice and non-recorded basis, and I just indicated to the Commissioner our preference would be to proceed in terms of discussing any changes or potential changes on a without prejudice and unrecorded basis, particularly given the presence of another party that wasn't in those original discussions today.

PN57

THE COMMISSIONER: For the purposes of today, we are having a broad discussion and everyone is here. If there is anything you want to say about it today, you should say it. If you don't want to say anything about it today and you guys want to have other discussions, well you can do that any time, and if you want to come to the ultimate hearing that will at some stage occur - and we will get to that in a minute - and say - so really I'm not looking for agreement from anybody today for these provisions.

PN58

We have travelled some distance and we are really just at that sort of tertiary stage where we look to be frank and, when we get to the hearing stage, the Bench will be sort of saying, "What does everyone think about this?" and these are some of the things that come to my mind, and so I am just putting them on the table so you should be forewarned and come and talk about it.

PN59

You might come along and say, "Yes, we've had a think about that and we think it should say a roster for part-time and full-time employees", or you might come along and say, "For these reasons, we don't think it should", or one party has got a view that it should and another party's got a view that it shouldn't - whatever.

PN60

MS CRUDEN: Understood, thank you, Commissioner.

PN61

THE COMMISSIONER: Okay?

PN62

MS CRUDEN: Perhaps if we can take that on notice for our part then and consider that issue?

PN63

THE COMMISSIONER: Yes.

PN64

MS CRUDEN: Thank you.

PN65

THE COMMISSIONER: The other issue I was going to raise was the seven days' notice, but I see that got changed in the final version. I have got that right, haven't I? That was in the second part of the rosters clause; is that right?

PN66

MS BIDDLESTONE: Yes, Commissioner.

PN67

THE COMMISSIONER: Which is a sensible change. All right, anyone else want to say anything about that? Okay.

PN68

Now the facilitative provision, the Bench has made the decision, reasons to follow, the jurisdictional objection was dismissed, so we are batting on with that. This might be a short conversation, but is there any scope that you might have further discussions about this and reach some sort of agreed position, or is it really we have got to a point where, unless the employee representatives agree with AiG's position, then there's no point wasting your breath? I am probably looking at you to start off, Ms Biddlestone, on that one.

PN69

MS BIDDLESTONE: Yes, we have considered the clause that Ai Group is seeking and we don't believe at this point that there's any scope to have discussion around that and written submissions have already been filed on that matter, so we are happy for it to proceed.

PN70

We do have one question and that was in relation to the jurisdictional objection. We understand that a statement was issued on 1 March and the statement said a decision and reasons for the decisions would follow. That hasn't been forthcoming at this point and we don't believe that the statement sufficiently addressed the question that we had about, if the jurisdictional objection was rejected, which Full Bench would actually hear the matter because part of our submission went to that if the Commission deemed that it could proceed, that it should be referred back to the Penalty Rates Full Bench for consideration and, without a decision and reasons for the decision, it is difficult for us to know where we stand in relation to that point.

PN71

THE COMMISSIONER: I think you should probably proceed on the view that, in the absence of there being any direction that the Penalty Rates Full Bench is going to reconvene to hear that matter, and I am not aware of any such direction - because I am on that Bench as well - I think the view would be that it's this Bench that is going to hear it, so you should probably proceed on that basis, but if you are wanting some clarity about that, to the extent that reasons will be issued, they will address that point.

PN72

MS BIDDLESTONE: Before the hearing?

PN73

THE COMMISSIONER: I can't tell you when they will be issued and they may be issued as part of the substantive decision, perhaps, I'm not sure.

PN74

MS BIDDLESTONE: I think that creates some difficulties in terms of procedural fairness because if a decision isn't issued on the jurisdictional objection, where does that leave the union in relation to if we wanted to appeal a decision or take that issue further if that's tied up in the decision of the Full Bench on the substantive matter?

PN75

THE COMMISSIONER: You will still have a right to appeal any decision made within the statutory period. I'm just not sure it's any different to any matter here where sometimes jurisdictional matters are determined on a threshold basis and other times are determined wrapped up with the merits and both parts of that decision are appealable.

PN76

The only procedural fairness aspect that arises, isn't it, is that, well, you'll be required to advance your case in respect of the substantive change, and that might be, you know, where we are in a position where we were dealing with - I don't want to belittle the change, but, you know, an enormous change, perhaps, in the penalty rates case - but this is on a discrete point. I understand what you are saying; I am not sure the extent to which the procedural fairness point arises.

PN77

MS BIDDLESTONE: All right, that's fine.

PN78

THE COMMISSIONER: But I understand your view and I will raise it with my colleagues. I think for the purposes of today, where we are moving into programming, one would assume that this Full Bench will hear this matter and will issue reasons on the jurisdictional point most likely as part of the entire decision, including the merits. Okay?

PN79

So where were we? Is there any more material to be filed?

PN80

MS CRUDEN: Commissioner, Ai Group may seek leave to file a short statement or affidavit in reply from one of our witnesses, Ms Anderson, responding to some of the aspects of the submissions that have been put on regarding the facilitative provision claim.

PN81

THE COMMISSIONER: Right.

PN82

MS BIDDLESTONE: Sorry, we missed that last bit - on which claim?

PN83

MS CRUDEN: The 5 am facilitative provision claim.

PN84

MS BIDDLESTONE: Okay.

PN85

THE COMMISSIONER: Okay. Other programming issues? How many witnesses do we have? How many days do we think this is going to go? Weeks?

PN86

MS CRUDEN: Ai Group has filed 10 witness statements; the SDA and RAFFWU haven't filed any statements, so we will just need to determine which witnesses are required for cross-examination.

PN87

THE COMMISSIONER: Sure.

PN88

MS CRUDEN: Just as a starting point, are we able to confirm that the hearing will remain in Sydney?

PN89

THE COMMISSIONER: I believe so, yes.

PN90

MS CRUDEN: All right.

PN91

THE COMMISSIONER: Is that where most of the witnesses are?

PN92

MS CRUDEN: Yes.

PN93

THE COMMISSIONER: Well, that's where it will be then. So that's right, no SDA witnesses?

PN94

MS BIDDLESTONE: That's correct.

PN95

THE COMMISSIONER: And no witnesses from you, Mr Cullinan?

PN96

MR CULLINAN: That's correct.

PN97

THE COMMISSIONER: Have we got a view about requirements for cross-examination, ideally, you know, length? That might be a big ask at this stage.

PN98

MS BIDDLESTONE: At this stage, Commissioner, the SDA will be requiring three witnesses for cross-examination: Anderson, Agostino and Hossain.

PN99

THE COMMISSIONER: Who is the third one, sorry?

PN100

MS BIDDLESTONE: Hossain - H-o-s-s-a-i-n.

PN101

THE COMMISSIONER: Hossain, all right. You don't require the other seven?

PN102

MS BIDDLESTONE: No, Commissioner.

PN103

THE COMMISSIONER: Mr Cullinan?

PN104

MR CULLINAN: We haven't finalised a view on that, Commissioner Lee. The only other two that we potentially wanted to ask questions of were Flemington and - I'm sorry, I need to check which of the witnesses it was that was Hungry Jack's - sorry, Montebello - - -

PN105

THE COMMISSIONER: Montebello. So the other - so it's Flemington - you want those three, Anderson, Agostino and Hossain, and you also want Flemington and the other - that's the name of the person, is it?

PN106

MS CRUDEN: Yes.

PN107

MR CULLINAN: We don't want Agostino.

PN108

THE COMMISSIONER: Yes, okay.

PN109

MS CRUDEN: Commissioner, perhaps if I can indicate, Ai Group will foreshadow an objection to the participation of the Retail and Fast Food Workers Union in relation to the matter.

PN110

THE COMMISSIONER: Yes.

PN111

MS CRUDEN: I am happy to outline briefly the basis for that now; I will otherwise just leave it at this point in time that we anticipate an objection.

PN112

THE COMMISSIONER: Yes, let's come back to that, we will come back to that. Any idea on your part, Ms Biddlestone, of the time required for the three?

PN113

MS BIDDLESTONE: I think probably one day would be sufficient, Commissioner.

PN114

THE COMMISSIONER: All right, that's okay, that's helpful. And for you, Mr Cullinan, if you get to come and appear?

PN115

MR CULLINAN: It will be very limited.

PN116

THE COMMISSIONER: Okay.

PN117

MR CULLINAN: As in less than half an hour each.

PN118

THE COMMISSIONER: Right.

PN119

MR CULLINAN: Somewhat dependant on what the SDA goes to, but assuming that they are slightly different because our focus is entirely on the part-time provisions and not on the 5 am issue, we still expect it would be very limited for those four.

PN120

THE COMMISSIONER: All right, thanks, that's helpful. So we might well be able to get through it in a day?

PN121

MS CRUDEN: Yes, Commissioner, that's our assessment as well.

PN122

THE COMMISSIONER: Yes, all right, excellent. Now the question is when. Is there any particular times in the next couple of months that people are not - you know, you're going to say you can't possibly have it then because of X, Y, Z for some particular reason?

PN123

MS O'BRIEN: Commissioner, we will have both junior and senior counsel appearing for Ai Group. I have their availability up to the end of June and those witnesses who are being called have overseas travel commitments and availability issues, but I have their availability till the end of June, if it would be easier to provide those to Chambers.

PN124

THE COMMISSIONER: Yes, that would be good if you could do that, yes, and that's really the driver from your end.

PN125

Ms Biddlestone, any blocks for you? You haven't got any trips to the Caribbean planned?

PN126

MS BIDDLESTONE: Unfortunately, no, but if anyone were to offer to send me, I'm happy to go. No, we do have some availability issues with counsel who will be appearing for the SDA and, like Ai Group, I am happy to email those dates of unavailability through to Chambers, if that's helpful.

PN127

THE COMMISSIONER: Yes, that would be great. Mr Cullinan?

PN128

MR CULLINAN: Other than a couple of hearing dates already scheduled for the next three or four weeks, we can email as well to Chambers.

PN129

THE COMMISSIONER: All right, that would be useful, thanks very much. Well, if you could provide all of that information in the next 48 hours in terms of availability, that would be fantastic.

PN130

Let's go back to - I think it's the only other issue - the foreshadowed objections. Do you want to talk about that, Ms Cruden?

PN131

MS CRUDEN: Yes, Commissioner, thank you. We note that RAFFWU has filed a submission in this matter on 9 March. The Retail and Fast Food Workers Union is not a registered organisation under the Fair Work (Registered Organisations) Act 2009. In our assessment, its submission filed on 9 March does not disclose, you know, an interest or a basis for them to participate in the proceedings, and we note that submission is also not supported by any evidence.

PN132

With respect to the objection to their involvement in the proceedings, we would seek to rely on the decision in Vickers, the 2017 decision of the Full Bench, number 3131, and in particular paragraphs 28 and 30 of that decision, on the basis that the Commission has the general control over who may participate in proceedings before it. We would say, on the basis of the grounds I have just indicated, that there is not, I guess, a role or a legitimate basis on which for the Retail and Fast Food Workers Union to participate.

PN133

THE COMMISSIONER: Okay. Well, it's a matter of how we deal with that. It would be sensible for you to file some written submissions on that point by - how long for those do you need? A week, two?

PN134

MS CRUDEN: Noting next week is Easter, if we could have two weeks?

PN135

THE COMMISSIONER: Two weeks, yes.

PN136

MS CRUDEN: Thank you, Commissioner.

PN137

THE COMMISSIONER: Is it Easter next week? Where's this year going? And obviously an opportunity for you to reply to that, Mr Cullinan, and the SDA, and anybody else who wants to express a view out there in the big wide world. A couple of weeks for you? Yes?

PN138

MR CULLINAN: Yes, Commissioner.

PN139

THE COMMISSIONER: To reply in writing, and then - again I will have to discuss it with my colleagues - but it might be that we are able to - we will wait and see what comes in. There's a number of courses that are available. One is we look at what's said and we might form a view that, well, we can deal with this on the papers and, obviously, if we are going to do that, we will let you know and ask you if you are okay with that. If we are not going to do that, we might deal with it just on the day of the hearing, although I note the inconvenience for you, Mr Cullinan, if you were to turn up and not be given a ticket, but I will talk to my colleagues about that and we will see how that goes for the moment. The hearing is not going to be within the next four weeks, so if all the material is in in on that part-time period, that will be plenty of time.

PN140

Are there any other matters that anyone wants to raise?

PN141

MS CRUDEN: None from us, thank you, Commissioner.

PN142

THE COMMISSIONER: No? All right.

PN143

MS BIDDLESTONE: No, Commissioner.

PN144

THE COMMISSIONER: Thank you very much for being here and I will see you at some time in the future. The conference is concluded.

ADJOURNED INDEFINITELY [10.07 AM]