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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
COMMISSIONER CAMBRIDGE

 

 

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/86)

Supported Employment Services Award 2010

 

Sydney

 

10.07 AM, FRIDAY, 22 DECEMBER 2017


PN1          

VICE PRESIDENT HATCHER:  Yes, can I take the appearances starting in Sydney please?

PN2          

MR BULL:  If the Commission pleases, my name is Bull.  I appear for United Voice.

PN3          

VICE PRESIDENT HATCHER:  Yes.  Thank you.

PN4          

Mr Christodoulou?

PN5          

MS CHRISTODOULOU:  Yes, Mr Christodoulou.  I appear on behalf of Greenacres Disability Services, your Honour.

PN6          

VICE PRESIDENT HATCHER:  Yes.  Thank you.  Not the Freemasons this time?

PN7          

MS CHRISTODOULOU:  That's right.

PN8          

VICE PRESIDENT HATCHER:  Ms Langford, you appear for National Disability Services?

PN9          

MS LANGFORD:  Yes I do, your Honour.

PN10        

VICE PRESIDENT HATCHER:  Right.

PN11        

Mr Zevari, you appear for ABI and the New South Wales Business Chamber?

PN12        

MR ZEVARI:  I do, your Honour.

PN13        

VICE PRESIDENT HATCHER:  Yes and Ms Zadel, you appear for Civic Disability Services?

PN14        

MS ZADEL:  That's correct, your Honour.

PN15        

VICE PRESIDENT HATCHER:  Yes, right.

PN16        

So we'll next go to Melbourne.  Ms Wilson, you appear for the AED Legal Centre?

PN17        

MS WILSON:  No, your Honour.

PN18        

MR M HARDING:  No, your Honour.  I do.  My name is Malcolm Harding and I seek - - -

PN19        

VICE PRESIDENT HATCHER:  I'm sorry.  Yes, thank you.  Yes, thank you.

PN20        

MR HARDING:  - - - permission to appear and to address you seated, your Honour.

PN21        

VICE PRESIDENT HATCHER:  Yes, that's fine.

PN22        

Ms Svendsen, you appear for the HSU?

PN23        

MS SVENDSEN:  Yes, your Honour, and with me is Rachel Liebhaber.

PN24        

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN25        

All right, next we'll go to Brisbane.  So Ms Brattey, you appear for the Endeavour Foundation with Mr Stroppiana?

PN26        

MS BRATTEY:  I do, your Honour.  Thank you.

PN27        

VICE PRESIDENT HATCHER:  In Hobart Mr Dilger and Mr Fraser you appear for Blue Line Laundry?

PN28        

MR FRASER:  Yes we do, your Honour, and Mr Dilger and I seek permission to appear.

PN29        

VICE PRESIDENT HATCHER:  Yes, all right.  Thank you.

PN30        

And then finally in Canberra we have Ms Wright together with Mr Grinzel-Jones and Ms Wilsmore for the Department of Social Security, is that right?

PN31        

MS WRIGHT:  That's right, the Department of Social Services, your Honour.

PN32        

VICE PRESIDENT HATCHER:  Social Services, sorry.  Yes, thank you.

PN33        

DEPUTY PRESIDENT BOOTH:  I used to make that mistake all the time.

PN34        

VICE PRESIDENT HATCHER:  I'll write that down.  Social Services, and on the telephone Ms Walsh, you appear for Our Voice Australia?

PN35        

MS WALSH:  I do, your Honour.

PN36        

VICE PRESIDENT HATCHER:  All right, well the main purpose of today is to deal with programming issues.  Firstly  can I indicate that the provisional view of the Bench, and I note for that purpose that Commissioner Cambridge is not with us today but he'll read the transcript - the provisional view of the Bench is that leaving aside the questions of inspections, which I'll come back to, that we will sit in Sydney and Melbourne.  So that obviously we'll hear witnesses located in those two States, in Sydney and Melbourne, and that any other witnesses from other States either can attend by video link, by telephone, or can travel to Sydney or Melbourne.  Does any party take a different view to that approach?  No?  All right, well I'll take silence as assent.

PN37        

DEPUTY PRESIDENT BOOTH:  As assent.

PN38        

VICE PRESIDENT HATCHER:  The next issue is that of inspections.  So we've had some requests for inspections and we've had some email correspondence objecting to the inspections.  Again we'll hear the parties in a minute, but our provisional view is that within reason if an inspection is requested we should undertake it.  I just want to address briefly those parties requesting extensions - sorry, inspections.  So firstly Ms Brattey in relation to the Endeavour Foundation, you want an inspection at one of the three sites you've nominated.  Is that correct?

PN39        

MS BRATTEY:  Your Honour, we proposed these sites on the basis to give the Bench the opportunity to choose which sites might be most convenient to the Bench.  Also that the ABI has proposed these sites in New South Wales and indeed Wollongong as well.  If the Bench is of a mind that those sites fit with its timetabling then Endeavour are happy to agree to those sites being inspected.  But we stress that we also have our three sites as well should that not be convenient to the Bench, and our sites are prepared.

PN40        

VICE PRESIDENT HATCHER:  All right, well can you - and it might be easier if you stay seated so you can stay close to the microphone, and just get that microphone as close to you as you can.  Can you tell us a bit about what is at the three sites you've nominated that is Keon Park, Penrith and Wacol?  That is, what would we see at those sites?

PN41        

MS BRATTEY:  Sure.  Yes, if you just bear with me, your Honour.  At the Brisbane site in Wacol, your Honour, the services that are undertaken by the supported employees there are food packaging and decanting and (indistinct) and there's also processes relating to shrink wrapping.

PN42        

VICE PRESIDENT HATCHER:  Right.

PN43        

MS BRATTEY:  And pet food processing as well.

PN44        

VICE PRESIDENT HATCHER:  All right, and if we undertook that inspection can you give - obviously it's a very rough estimate - as to how long it would take?

PN45        

MS BRATTEY:  Between one hour and two hours.

PN46        

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN47        

DEPUTY PRESIDENT BOOTH:  Ms Brattey, could you indicate how many people with disability are employed at that site?

PN48        

MS BRATTEY:  I'm sorry, I can't hear that question?

PN49        

DEPUTY PRESIDENT BOOTH:  Sorry.  Could you indicate how many people with disability are employed at that site?

PN50        

MS BRATTEY:  We have 232 supported employees at that site and 12 non-supported employees.

PN51        

DEPUTY PRESIDENT BOOTH:  Thank you.  Thank you.

PN52        

VICE PRESIDENT HATCHER:  All right, so that's Wacol.  What about Penrith?

PN53        

MS BRATTEY:  At the Mt Druitt site, that again provides services of food packaging, powder blending and decanting and (indistinct), pet food packaging and also shrink wrapping.

PN54        

VICE PRESIDENT HATCHER:  So I'm a bit confused.  The document we were sent says Mt Druitt but it has got an address in Penrith.  Which one is it?

PN55        

MS BRATTEY:  It's called the Mt Druitt site and it's based in Penrith.

PN56        

VICE PRESIDENT HATCHER:  Based in Penrith.  In High Street, Penrith.  Are you sure about that?

PN57        

MS BRATTEY:  Yes, your Honour.

PN58        

VICE PRESIDENT HATCHER:  And how many supported employees would be at that site?

PN59        

MS BRATTEY:  We have 258 supported employees and 31 non‑supported employees.

PN60        

VICE PRESIDENT HATCHER:  I don't think that's on High Street somehow.  All right, and Keon Parade?

PN61        

MS BRATTEY:  It's a smaller site, your Honour.  At that site we do food packaging and at that site we have 131 supported employees and 17 non-supported employees.

PN62        

VICE PRESIDENT HATCHER:  All right.  I think in those circumstances it seems to me the most convenient one is to see the one in Sydney, Ms Brattey.  Is that right?  All right, and would that take the same as your estimate for the Wacol one, that is one to two hours?

PN63        

MS BRATTEY:  Yes it would.  Thank you.

PN64        

VICE PRESIDENT HATCHER:  All right.

PN65        

Now Mr Zevari, you're the one seeking the other inspections, is that right?

PN66        

MR ZEVARI:  That's correct, your Honour.

PN67        

VICE PRESIDENT HATCHER:  So we have Greenacres in North Wollongong.  How long might that take?

PN68        

MR ZEVARI:  I think one to two is correct.  Mr Christodoulou can speak to both the Greenacres site and also Flagstaff.

PN69        

VICE PRESIDENT HATCHER:  All right Mr Christodoulou?

PN70        

MS CHRISTODOULOU:  Yes, in terms of Greenacres, your Honour, one to two hours unless your Honour was minded to visit a small café that we have in Crown Street.

PN71        

DEPUTY PRESIDENT BOOTH:  I think that would be - I was going to ask that and I think that would be of assistance.

PN72        

MS CHRISTODOULOU:  Yes, because that's a very, very different environment again to what we have at North Wollongong, and Flagstaff again one to two hours.  They're in fairly close proximity and both disability enterprises do very, very different things in terms of their operations.  I could run through those things if you'd like, your Honour?

PN73        

VICE PRESIDENT HATCHER:  No, that's all right.  We just wanted to - this is really just for programming purposes at this stage.

PN74        

MS CHRISTODOULOU:  Yes.

PN75        

VICE PRESIDENT HATCHER:  Now I just notice that we have one witness from Unanderra, Mr Burgess.  So does he work with Flagstaff, does he?

PN76        

MS CHRISTODOULOU:  Yes, your Honour.

PN77        

VICE PRESIDENT HATCHER:  Is there some facility that we could take his evidence while we're at Unanderra and then sort of as it were make a day of it out in Wollongong?

PN78        

MS CHRISTODOULOU:  Yes, I'm sure Mr Burgess - well, we certainly would have a room available at Greenacres where Mr Burgess could come.

PN79        

VICE PRESIDENT HATCHER:  Yes.

PN80        

MS CHRISTODOULOU:  But I'm sure that Flagstaff would also have rooms available at their facilities.

PN81        

VICE PRESIDENT HATCHER:  All right, we can record it but just having something large enough that we can fit the Full Bench and the parties and - - -

PN82        

MS CHRISTODOULOU:  Yes, we certainly could do it at our new training centre, yes, at North Wollongong and Mr Burgess could come along.

PN83        

VICE PRESIDENT HATCHER:  All right.

PN84        

MS LANGFORD:  I would just have to organise to ensure that there were no activities taking place in that training centre on the day.

PN85        

VICE PRESIDENT HATCHER:  All right, so if we heard Mr Burgess and did those two inspections that would, as it were, fill out a day in Wollongong.  Is that a reasonable estimate?

PN86        

MS CHRISTODOULOU:  Yes.

PN87        

VICE PRESIDENT HATCHER:  Yes, all right.

PN88        

And finally Disability Services Australia at Mascot, what is the estimate of time for that?

PN89        

MR ZEVARI:  I would say the same, your Honour.  One to two hours.

PN90        

VICE PRESIDENT HATCHER:  One to two hours.

PN91        

MR ZEVARI:  Yes.

PN92        

VICE PRESIDENT HATCHER:  All right, so we can fit that in with hearing witnesses in Sydney.

PN93        

Now those parties opposing inspections, do you want to make any submissions now as to why you say we should not undertake those inspections?

PN94        

MR HARDING:  Perhaps I might start, your Honour.  There are really two grounds.  The first is that the conciliation process had a demonstration project and another project that examined 20 sites.  The work that's being the subject of this application is of course work that is to be assessed, whether or not under a tool of the SWS or another tool, and in those circumstances our submission is that the Bench will not be assisted by watching work that requires assessment and that the material that has been collected extensively for the purpose of the conciliation project examined that in much more detail, and the Commission will then have the benefit of that material in the course of argument, and evidence - - -

PN95        

VICE PRESIDENT HATCHER:  We'll certainly have that material but why wouldn't the inspections provide additional assistance to that?

PN96        

MR HARDING:  Because, your Honour, all that you will see is people working rather than how work is assessed, and to that extent what you might gain is an impression of the location and the nature - and those who are working at that location and also some of the work that's being done by those employees.  But not the nature of the tasks and how they are assessed, which is the core of the AED's application and certainly some other parties.  That's the first thing.

PN97        

VICE PRESIDENT HATCHER:  Yes.

PN98        

MR HARDING:  The second is that it potentially provides a misleading impression if only because there ought to be some assessment or some viewing I suppose of how work is assessed under an SWS model and perhaps even in open employment, in order for the Bench to gain a balanced view of whether or not the work is different or somehow assessed in a different manner than might be at the ADE's that you're being asked to go to, and so in those circumstances it's - - -

PN99        

VICE PRESIDENT HATCHER:  Mr Harding, I mean it's open to your client to nominate any other inspection we could undertake which from your perspective might balance the picture.

PN100      

MR HARDING:  Indeed, your Honour, and we would propose tat but we haven't got specific locations at the moment.  Obviously the AED is a legal centre and not a provider.  If the Bench was minded to go down the inspection path then we would endeavour to propose some locations.  I suppose that comes into the equation then in terms of the timetable.

PN101      

VICE PRESIDENT HATCHER:  Yes well - - -

PN102      

MR HARDING:  But we would certainly say to the Bench that it ought not do inspections unless the other side of the picture can be represented in that process, and if it can't be there ought not be inspections.

PN103      

VICE PRESIDENT HATCHER:  All right, well I hear that.

PN104      

Does any other party wish to speak against the proposition that we should conduct inspections?

PN105      

MS SVENDSEN:  Yes, your Honour, HSU does.  We're not opposed to inspections per se or the concept of it, but I would echo what Mr Harding has just said in relation to the inspections not being representative, I think, and when we did the trial of the modifications which was a very broadly conducted trial it took a lot of work to come up with the 20 sites to give something approximating a representative sample of the sort of work that's undertaken in ADE's across Australia, and that was a fairly - that was an extensive and intensive trial and attempted to get the - to show what sort of work ADEs actually participated in.

PN106      

And the NDS actually assisted in finding providers that were prepared to undertake the trial or participate in the trial, and it wasn't that easy but it also was difficult getting any representative - across the board representative.  So you know regional centres, centres who do outside work and inside work and packing and laundry and whatever else happens to be done across - and whether they're on a line or whether they're working individually, all of those sorts of things.  And that was aimed at testing whether or not the tool, which is actually the real things that we're talking about, were able to be used in all of those endeavours.

PN107      

And I'm not sure that anything is really going to be gained unless we do something similar, and I don't think we can do something similar, and even if we do do something similar, as Mr Harding says we're going to see people working.  We're actually not going to see the tool or the assessment process in action, and that's actually really what is the subject of most of the proceedings that we're talking about for this award.

PN108      

VICE PRESIDENT HATCHER:  Well, to be clear, Ms Svendsen and Mr Harding, what is proposed are inspections in the traditional sense which means they're not evidence as such.  They merely serve as an aide so that the Full Bench can have a better understanding of matters that are referred to by witnesses when they give their evidence.  In any event.

PN109      

MS SVENDSEN:  And yes, and we - sorry, your Honour.

PN110      

VICE PRESIDENT HATCHER:  Yes, go on.

PN111      

MS SVENDSEN:  Yes, and we have had some discussions about if you're minded to do it that we think there should be at the very least in addition to those sites proposed a site that is using the supported wages tool and has done so for some considerable period of time; and maybe one of the sites that's just transitioned in the last couple of years since the business services wage assessment tool was removed, because there are some sites who have done that as well; and somebody or a site with somebody working in open employment who is also assessed under the supported wage tool.

PN112      

VICE PRESIDENT HATCHER:  All right, is there any other submissions anybody wishes to make opposing inspections?  All right, well I can indicate that having heard those submissions the Full Bench's view is that we will undertake the inspections that parties have requested to date, and with respect to the Endeavour Foundation that will be the inspection at the site in Western Sydney.

PN113      

Mr Harding and Ms Svendsen, to the extent that you might want us to see other sites, how long might it take you to be able to identify those sites?  And I say that because obviously sooner rather than later we wish to put together a program for the hearing.

PN114      

MS SVENDSEN:  Yes.  Yes.

PN115      

MR HARDING:  Your Honour, in terms of a list I'm instructed that the centres are closed or that the ADEs that might be available are closing for about two weeks over the Christmas period and so enquiries would need to be made.  I would have anticipated perhaps in the second week of January we might be able to provide some indication of what ADEs might be available for inspection.

PN116      

VICE PRESIDENT HATCHER:  Ms Svendsen?

PN117      

MS SVENDSEN:  I can't add anything to what Mr Harding has just said.

PN118      

VICE PRESIDENT HATCHER:  All right, we'll leave it on the basis that any further applications for inspections will need to be made as soon as practicable.  Having regard to locations, the sites will need to be in Sydney or Melbourne and obviously there needs to be some reasonable limit upon the number, having regard to the program we're developing for a two week hearing.  All right, well that's about as far as we can take that then.

PN119      

MR ZEVARI:  Your Honour, if I may?

PN120      

VICE PRESIDENT HATCHER:  Yes?

PN121      

MR ZEVARI:  Would it be an appropriate time also to discuss a protocol in relation to when the inspections are held in terms of group sizes and what have you?  We're just mindful of ensuring that the working environment is not unduly disturbed.

PN122      

VICE PRESIDENT HATCHER:  I'm not sure there's much point in discussing that now.  I think the appropriate course is that those parties to date who have proposed inspections should file and serve a document indicating the practical matters attending the conduct of those inspections, as soon as possible, and if that includes anything about the number of persons who can attend and those sort of  things, that should be included in that document.

PN123      

MR ZEVARI:  May it please.

PN124      

VICE PRESIDENT HATCHER:  Does that deal with that?

PN125      

MR ZEVARI:  Thank you.

PN126      

VICE PRESIDENT HATCHER:  All right, now there was a proposal that there be time made available at the commencement of the hearing for opening submissions.  Is that right?

PN127      

MR ZEVARI:  Yes, your Honour.

PN128      

VICE PRESIDENT HATCHER:  So have all the parties seen that document?

PN129      

MS SVENDSEN:  Yes, your Honour.

PN130      

MR ZEVARI:  May it please.  Thank you.

PN131      

VICE PRESIDENT HATCHER:  Does that deal with that?  All right, now there was a proposal that there be time made available at the commencement of the hearing for opening submissions, is that right?

PN132      

MR ZEVARI:  Yes, your Honour.

PN133      

So have all the parties seen that document?

PN134      

MS SVENDSEN:  Yes, your Honour.

PN135      

MS BRATTEY:  Yes, your Honour.

PN136      

VICE PRESIDENT HATCHER:  Does any party oppose that proposal for openings submissions?  No?  All right, you can assume that that will be adopted into the timetable.  Do the parties have an estimate as to how long it would take to hear all those opening submissions?  As we'll take the - - -

PN137      

MR ZEVARI:  Your Honour, the tentative proposed timetable that we provided was that on the Monday the 5th there be those openings.

PN138      

VICE PRESIDENT HATCHER:  Yes.  So that would consume the entire day?

PN139      

MR ZEVARI:  I believe so, your Honour, in the order that we propose, which would be essentially each party put together an opening in relation to both its positive and negative cases, if you like, commencing with AED and its supports in relation to removal of the wage assessment tools and its opposition to the work value classification structure, followed by ABI and the Chamber and its supporting parties countervailing those two propositions.  And Ms Langford will be addressing the Commission about the definition issue shortly and then I'll let the document speak for itself in terms of the subsequent order, but yes, the day was the estimate, your Honour.

PN140      

VICE PRESIDENT HATCHER:  All right.  Now with respect to the order of witnesses that will obviously have to be subject to location, so we can accommodate the proposed order of witnesses in terms of what this document says but generally speaking I think we'd be hearing the Sydney witnesses first, the Melbourne witnesses in the second block and then for other states parties can try and fit those in as convenient.  Are the parties able to identify whether there's any particular dates upon which particular witnesses would not be available?

PN141      

MR HARDING:  Yes, I can, your Honour.  Mr Kane(?) will not be available on 8 February.

PN142      

VICE PRESIDENT HATCHER:  All right.  I'll just turn to the subject of cross-examination.  And I think this is mainly directed to you, Mr Harding, since you appear to be taking on the main burden in that respect.  Obviously it's only very rough estimates at this stage but how long do you think you need to cross-examine the witnesses that you've identified in total?

PN143      

MR HARDING:  That is very difficult to estimate at this stage, your Honour, suffice to say there are some witnesses I'll take longer with than others.  I would have thought one to two hours for the main witnesses and perhaps less than that – well, definitely less than that for the others.  At this stage really I can't do better in terms of an estimate than that, and that's very rough.

PN144      

VICE PRESIDENT HATCHER:  All right, if we broadly program four to five witnesses a day, does that fit in with your very rough estimate?  Obviously some witnesses may have to carry over if necessary but is that broadly consistent with that proposition?

PN145      

MR HARDING:  I would have – I thought five is probably stretching it, your Honour.  Maybe four.

PN146      

VICE PRESIDENT HATCHER:  Four a day, all right.  And the other thing is, Mr Harding, your client has in response to the request to identify witnesses required for cross-examination, identified two persons, Mr Brantingham(?) and Mr Daley(?), of whom as I understand it there is no witness statement.  Can you explain that?

PN147      

MR HARDING:  Your Honour, my recollection is that a statement has been filed in the form of a witness statement and that as a statement, and to the extent that that is to be pressed by the party then I think we ought to be able to speak to them.  There is some overlap between what might be regarded as submissions on the one hand and evidence on the other, and there's evidentiary material contained in Mr Daley's statement.

PN148      

VICE PRESIDENT HATCHER:  So you say those documents which I took to be submissions have factual material in them which you're entitled to cross-examine upon?

PN149      

MR HARDING:  Yes.  Yes.

PN150      

VICE PRESIDENT HATCHER:  The difficulty is, Mr Harding, that those person and parties may not attend the hearing, in which case you may need to seek an order for their attendance if you want to cross-examine them.

PN151      

MR HARDING:  Indeed.  Or alternatively I'll make submissions about whether you should have regard to their submission but I hear what you say about that, your Honour, and I'll give some consideration to it.

PN152      

VICE PRESIDENT HATCHER:  All right, thank you.  And on the basis that it appears, at least to me, that the whole matter can be accommodated and the date set aside, is there any reason why we shouldn't receive closing submissions orally at the end of the days set aside for the hearing?

PN153      

MR HARDING:  None whatsoever from our point of view, your Honour.  It would be preferable if indeed that could be done.  That would be a neater way of dealing with it.  On the timetable that's being proposed there's a day allocated to that.  Hopefully we can get greater efficiency and be able to accommodate perhaps two days for submissions but I'd think it preferable if we could do oral submissions.

PN154      

VICE PRESIDENT HATCHER:  Does any other party wish to express a different view?  All right, we can assume that the program will have oral submissions incorporated into it.  Are there any other issues concerning the programing of the hearing which any party wishes to raise?

PN155      

MS LANGFORD:  Not from me, your Honour.

PN156      

MS WRIGHT:  Yes, your Honour.

PN157      

MS LANGFORD:  This is - - -

PN158      

MS WRIGHT:  Sorry.  (Indistinct)

PN159      

VICE PRESIDENT HATCHER:  Yes, I'll hear from Ms Langford first.  So Ms Langford.

PN160      

MS WRIGHT:  Yes, that makes - - -

PN161      

MS LANGFORD:  Your Honour, at the moment, National Disability Services is actually – in the interests of efficiency we're investigating to see whether we need to continue to pursue our line around the definitions.

PN162      

VICE PRESIDENT HATCHER:  Yes.

PN163      

MS LANGFORD:  So at this point of time we are looking at the interaction between social security legislation, the Disability Services Act and the NDIS to see whether there are going to be any dilemmas going forward after we have full transition into the NDIS, and so we would like to come back early in the New Year with some clarification around whether we need to continue to pursue that.

PN164      

VICE PRESIDENT HATCHER:  All right, Ms Langford, we'll leave it on the basis that if you want to file an amended claim or amended submissions, or you wish to withdraw your claim you can do so as soon as you're ready to deal with that.

PN165      

MS LANGFORD:  Thank you, your Honour.

PN166      

VICE PRESIDENT HATCHER:  Any other timetabling issues we can deal with now?

PN167      

MS WRIGHT:  Yes, thank you, your Honour.  This is a submission put on behalf of the Department of Social Services.  The department doesn't presently propose to make any submissions in respect of the contested hearings, however it may be in a position to assist the Commission depending on what the decision of the Commission is, as to the outcome of the contested matters, as to the transition period that may apply.  And there would be other parties, no doubt, that would have evidence and submissions about their parts in that process, but certainly the department's part in terms of wage assessments that may or may not need to be conducted depending on the decision of the Commission, there is information that the department could provide to assist.  So one possibility that we suggest is that there be another opportunity once the Commission has made its decision, to come back and provide any evidence or submissions about the transition process.  Obviously it is a matter for the Commission whether it wishes to deal with that at the contested hearings, but the transition process might be quite different depending on what the commission's decision ultimately is.

PN168      

VICE PRESIDENT HATCHER:  I think, Ms Wright, that approach is broadly consistent with the way we've dealt with most other matters in the four year review.  That is, I think we would proceed on the basis that we would hear the contested issues during the ten days we've set aside and then if there are determinations that need to be made to implement a particular outcome we would issue those first in draft form and then give parties a further opportunity to be heard as to the implementation of our decision.  So does that suit your position, Ms Wright, broadly speaking?

PN169      

MS WRIGHT:  Yes, your Honour.

PN170      

VICE PRESIDENT HATCHER:  Yes, all right, thank you.

PN171      

MS WRIGHT:  Thank you.

PN172      

VICE PRESIDENT HATCHER:  All right - - -

PN173      

MR BULL:  Your Honour, just one matter, sorry.

PN174      

VICE PRESIDENT HATCHER:  Mr Bull, yes?

PN175      

MR BULL:  Sorry to disturb you.  In relation to our claim, we have the one claim in relation to superannuation.  We, and I, was not intending to be here for the entire ten days.  It appears the Full Bench will have plenty of others to assist them.  No one has indicated that they want to cross-examine our one witness, Martin Schultz, so – I'm assuming that the Full Bench doesn't want to hear from him, so - - -

PN176      

VICE PRESIDENT HATCHER:  We will tell you if we do.

PN177      

MR BULL:  Okay, well I'm happy to make him available but our case will be – I've done a written submission.  I don't wish to expand upon that.  There's been nothing of particular substance put against our claim.  I will turn up at the end and make some final submissions concerning why we say you should accept our claim, so – and I'm just indicating that I might turn up at the beginning and tender a statement.  I'm not going to be here throughout the entire process.  And I'll turn up at the end.

PN178      

VICE PRESIDENT HATCHER:  All right, thank you.  So Mr Christodoulou?

PN179      

MR CHRISTODOULOU:  Just a very practical question, your Honour.  In terms of the taking of evidence, possibly, of Mr Burgess, could your Honour please indicate at some point what your requirements will be to ensure that we can fulfil whatever requirements this Commission does have in terms of – I'm presuming that if he's going to be cross-examined it would have to be done there in person, there wouldn't be people by video link because we don't have that capacity.

PN180      

VICE PRESIDENT HATCHER:  Yes.  Yes.  Yes, all right.  Mr Harding - - -

PN181      

MR HARDING:  Yes, your Honour?

PN182      

VICE PRESIDENT HATCHER:  Is it your intention to attend the hearings in Sydney physically or to attend by video link?

PN183      

MR HARDING:  The intention is to appear physically, your Honour.

PN184      

VICE PRESIDENT HATCHER:  And would you be planning to attend the inspections in Wollongong?

PN185      

MR HARDING:  I won't, personally, but the AED will be.

PN186      

VICE PRESIDENT HATCHER:  But you would want to be the person who would cross-examine Mr Burgess?

PN187      

MR HARDING:  I wanted to raise that with you, your Honour.

PN188      

VICE PRESIDENT HATCHER:  Yes.

PN189      

MR HARDING:  It would be me who would cross-examination Mr Burgess.  I would prefer that the cross-examination occurred – my preference would be, and my submission is that no evidence should be taken during the inspections, that they should be just inspections, and that evidence is called in the usual way rather than it being done in combination.

PN190      

VICE PRESIDENT HATCHER:  Mr Harding - - -

PN191      

MR HARDING:  In circumstances (indistinct).

PN192      

VICE PRESIDENT HATCHER:  Mr Harding, I wasn't suggesting that Mr Burgess' evidence would not be heard in the normal way.  It's just simply a question of where we do it.  We can do it in a conference room and have it recorded on a recording device but if you're not going to be there then obviously we'll have to make different arrangements.  So Mr Harding, if you're telling me you won't be in Wollongong then we'll have to do something different.

PN193      

MR HARDING:  Thank you, your Honour.

PN194      

VICE PRESIDENT HATCHER:  Mr Christodoulou, I don't think that's going to work, so he might have to come to Sydney at some stage.

PN195      

MR CHRISTODOULOU:  Yes, probably.

PN196      

VICE PRESIDENT HATCHER:  All right, so they're the programming issues.  In relation to applications made by a few parties in issue about the status of the ARTD report the Commission advises of an interim position in respect to the used parties can make of those reports.  Does any party want to make a submission that we should take some different approach?

PN197      

MR HARDING:  Your Honour, perhaps I misunderstood what you said.  I'm not sure that I actually heard it all either.  Certainly one of the reports, the ARTD report, has been the subject of a decision by the Commission.  To that extent I don't think we have any different view about that.  I think the only issue that was raised in that is the question of inspection.  As is indicated in the decision the AED has that report by reason of its participation, with therefore no need to order inspection separately.

PN198      

VICE PRESIDENT HATCHER:  Yes.

PN199      

MR HARDING:  The notices to produce that have been filed take that into account and asks for additional information.

PN200      

VICE PRESIDENT HATCHER:  I will come back to the notice to produce shortly, Mr Harding, but just in terms of the use of the reports, proper, can we simply leave it on the basis that the parties are entitled to refer to those reports or rely upon those reports in their evidence and submissions that any documents filed which refer in any detail beyond the broadest propositions to those reports will not be published on our website and that if the reports are actually tendered, or documents referring to the reports are tendered during the hearing we will then consider making a confidentiality order when that occurs.  Does any party wish to advance something different to that?

PN201      

MR HARDING:  No, your Honour.

PN202      

MS BRATTEY:  Your Honour, we don't wish to advance anything different to that but we do have a question around practicality, if you please.  The Endeavour Foundation wasn't party to the conciliation before Deputy President Booth.

PN203      

VICE PRESIDENT HATCHER:  Yes.

PN204      

MS BRATTEY:  Therefore we'd like to request inspection of the full report.

PN205      

VICE PRESIDENT HATCHER:  All right.  Ms Brattey, can you contact my chambers about that, which will have to be in the new year, and we'll make some practical arrangements by which that can occur?

PN206      

MS BRATTEY:  Thank you.

PN207      

VICE PRESIDENT HATCHER:  Mr Harding, Mr Paul Kane's witness statement makes some reference to the reports.

PN208      

MR HARDING:  Yes.

PN209      

VICE PRESIDENT HATCHER:  I wish to raise with you and the parties generally whether the references to the report in that statement are such that it should either not be published at all on our website, or should be published in redacted form.

PN210      

MR HARDING:  I think the last statement of Mr Kane filed in reply quotes from - - -

PN211      

VICE PRESIDENT HATCHER:  Yes.

PN212      

MR HARDING:  Yes, and to the extent that those reports remain confidential then I think it ought not be published on the website.

PN213      

VICE PRESIDENT HATCHER:  Can we do it in redacted form, Mr Harding?

PN214      

MR HARDING:  Yes, all right.

PN215      

VICE PRESIDENT HATCHER:  All right.  If we publish it with the quotes from the reports redacted, would any party oppose that?

PN216      

MR ZEVARI:  No, your Honour.

PN217      

VICE PRESIDENT HATCHER:  Then finally, subject to any other issue the parties wish to raise there's the notices to produce that have been applied for by your client, Mr Harding.

PN218      

MR HARDING:  Yes.

PN219      

VICE PRESIDENT HATCHER:  So do you want to address us on why you say we should issue those notices?

PN220      

MR HARDING:  Yes, your Honour.  The notices – so far, the conversation and the subject matter of the Full Bench concerns one of the reports that was considered or presented to - during the conciliation process and there's three notices to produce.  Two of those seek information from the authors of a second report that the AED proposes to rely on, and also the underlying data.

PN221      

VICE PRESIDENT HATCHER:  I thought there was four notices.

PN222      

MR HARDING:  Yes.  You're right, your Honour.  There is four.  Can I go perhaps to the notice directed at the DSS - - -

PN223      

VICE PRESIDENT HATCHER:  Yes.

PN224      

MR HARDING:  The Department of Social Security, because that contains a comprehensive list of the material that's sought and what we say about that, your Honour, is that the reports considered alone may or may not present a complete picture of the work that was done and that the underlying data is necessary in order, or may be necessary in order for those reports to be considered properly.  And if the reports are to be relied on in evidence then the parties ought to have the underlying data in order to be able to assess the statements that are made, and potentially deal with that with witnesses.  And so if the report - - -

PN225      

VICE PRESIDENT HATCHER:  Mr Harding, if that order is issued and the documents produced, do you need to pursue the other orders?

PN226      

MR HARDING:  If the documents are produced and the data is produced then that's enough.

PN227      

VICE PRESIDENT HATCHER:  All right, I might hear from - - -

PN228      

MR HARDING:  We don't need necessarily – I'm sorry, your Honour?

PN229      

VICE PRESIDENT HATCHER:  I might hear from Ms Wright as to the department's view about that order.  Ms Wright, what's your client's position about this?

PN230      

MS WRIGHT:  Yes, your Honour, I apologise but the department isn't aware of the notice that's being referred to.

PN231      

VICE PRESIDENT HATCHER:  Excuse me - - -

PN232      

MS WRIGHT:  I might ask my friend.  Has that been served on the department?

PN233      

MR HARDING:  I don't think the notice has – probably not, your Honour, as I understand it.  I'm instructed that it hasn't been served separately on the department and I think the question of whether - - -

PN234      

VICE PRESIDENT HATCHER:  What happened, I'm reminded, is that the – just give me a second, Mr Harding.

PN235      

MR HARDING:  The Commission hasn't made the order yet, your Honour.

PN236      

VICE PRESIDENT HATCHER:  Ms Wright, I issued a statement on 15 December and the orders were actually attached to that statement.

PN237      

MS WRIGHT:  Thank you, your Honour.

PN238      

VICE PRESIDENT HATCHER:  Have you not seen that?  Or do you have a copy of that?

PN239      

MS WRIGHT:  No, I apologise, your Honour, I don't have a copy.  If this is a matter we could come back – is this a matter we could come back to, so that we could quickly obtain and review a copy, your Honour?

PN240      

VICE PRESIDENT HATCHER:  Yes.  When you say, come back, how long would that take?

PN241      

MS WRIGHT:  I might just pop out to the registry here.  Hopefully it will only be a few minutes, your Honour.

PN242      

VICE PRESIDENT HATCHER:  If we adjourn for 20 minutes will you be able to give a useful response, assuming we can get a copy to you?

PN243      

MS WRIGHT:  We'll certainly do our best, your Honour.  We should be able to.

PN244      

VICE PRESIDENT HATCHER:  All right.  Anyway, we'll at least make sure you can see it and have an idea of what it's about and then we can take it from there.  So we'll adjourn now and I'll arrange for a copy to be sent to the Canberra Registry and we'll come back in approximately 20 minutes.

PN245      

MS WRIGHT:  Thank you, your Honour.

PN246      

VICE PRESIDENT HATCHER:  We will now adjourn.

SHORT ADJOURNMENT                                                                  [10.51 AM]

RESUMED                                                                                             [11.18 AM]

PN247      

VICE PRESIDENT HATCHER:  Yes.  So Ms Wright, are you in a position to respond now?

PN248      

MS WRIGHT:  Yes.  Thank you, very much, your Honour.

PN249      

MR HARDING:  Before perhaps that response occurs, your Honour, it may assist if I could indicate what the position of AED is in relation to some of the categories that are in the notices to produce.

PN250      

VICE PRESIDENT HATCHER:  All right.

PN251      

MR HARDING:  It will assist the DSS, I think.

PN252      

VICE PRESIDENT HATCHER:  I'm sorry, just hold on a second while I find it again.

PN253      

MR HARDING:  I'm sorry, your Honour?

PN254      

VICE PRESIDENT HATCHER:  Just hold on a sec while I locate the document again.

PN255      

MR HARDING:  Thank you.

PN256      

VICE PRESIDENT HATCHER:  Yes, all right, go ahead, Mr Harding.

PN257      

MR HARDING:  Yes, I'm referring to your statement on 15 December, your Honour.

PN258      

VICE PRESIDENT HATCHER:  Yes.

PN259      

MR HARDING:  And on page 10 of that statement is a schedule pertaining to the notice to produce that is directed to Mr Walter Grestick.

PN260      

VICE PRESIDENT HATCHER:  Yes.  Can we just deal with the department's one first?

PN261      

MR HARDING:  Sure, your Honour.  The department's – it's on page - - -

PN262      

VICE PRESIDENT HATCHER:  That's page 29.

PN263      

MR HARDING:  Twenty-nine.  We don't seek documents in paragraphs 1 to 6.

PN264      

VICE PRESIDENT HATCHER:  Yes.

PN265      

MR HARDING:  We do seek the documents in paragraphs 7 to 10.

PN266      

VICE PRESIDENT HATCHER:  All right.  And if you get those from the department do you need any of the other orders to be issued?

PN267      

MR HARDING:  I am instructed that the answer is yes, because the other parties may or may not hold different data to the DSS.  In other words, we're not entirely clearly whether the DSS holds all the underlying data or only some of it.  Perhaps the DSS can help.  But that's the basis for the orders.

PN268      

VICE PRESIDENT HATCHER:  Yes, all right.  So Ms Wright, you've heard that.  So what's the department's position?

PN269      

MS WRIGHT:  Thank you, your Honour.  So I understand all that's sought now are documents that are listed in numbered paragraphs 7 to 10.  So I can advise that 7 and 8 and 9 can be produced and we don't object to the production of those documents, subject to a confidentiality order being made in the same terms as discussed previously that the documents wouldn't be published and that there'd be some consideration given to reference to them in evidence before the Commission.

PN270      

VICE PRESIDENT HATCHER:  Yes.

PN271      

MS WRIGHT:  And to redacting those references, your Honour.  In relation to 9, we also say that we doubt that there are any documents that would exist that would fit that description although the department is very willing to undertake searches.

PN272      

MR HARDING:  We don't rely on that, your Honour.  You can delete paragraph 9.

PN273      

VICE PRESIDENT HATCHER:  All right, we'll take out paragraph 9.

PN274      

MS WRIGHT:  Thank you.

PN275      

VICE PRESIDENT HATCHER:  Yes, and paragraph 10?

PN276      

MS WRIGHT:  Ten?  Ten, we do object to, your Honour.  The objection is put on the basis that what is being requested is an explanation of a comment made in the letter of the 16 August.  That comment was clarified in a letter from the secretary, Catherine Campbell, of 8 November 2017.  We object on the basis that it's not relevant to any issues in the proceedings.  If the department has a position to put it will certainly have had the opportunity with the dates for submissions or any future submissions, to put any position it wishes to put.  It's provided the correspondence which sets out its position and it doesn't consider that it would be relevant to further explain a comment in that letter that has already been clarified.  And in addition it says that if the order is made then it expects that anything that it might capture would be subject to legal professional privilege and exempt from production in any case.

PN277      

VICE PRESIDENT HATCHER:  All right.  Mr Hardy, do you want to respond to that?

PN278      

MR HARDING:  Two things, your Honour.  The category of documents doesn't seek an explanation for the opinion, it seeks the basis for it.  And that is the position that's being put by the department.  The department is – well, rather, the Commonwealth, owns the SWS and operates it and it has expressed a position here that of course could be of great assistance to the Commission in assessing the merit of the SWS.  That information, we think, is plainly relevant for that reason alone.  Insofar as documents are produced which are subject to privilege then that can be dealt with in the inspection process.  Likewise, any other basis the department wishes to raise in order to object.

PN279      

DEPUTY PRESIDENT BOOTH:  Mr Harding, just to clarify – can I ask you a question, Mr Harding?

PN280      

MR HARDING:  Yes, your Honour.

PN281      

DEPUTY PRESIDENT BOOTH:  It wasn't my understanding that the Bench's task included assessing the SWS because the modifications of that SWS have already gone into the award by consent.

PN282      

MR HARDING:  Yes.

PN283      

DEPUTY PRESIDENT BOOTH:  Our task is rather to consider the claims of the parties.  Can you just clarify that for me?

PN284      

MR HARDING:  Yes, because the category, your Honour, doesn't deal with the SWS.  What it refers to is the opinion expressed in the department's letter which says that the varied SWS, that means – I take that to mean the modified SWS, be the only wage assessment tool in the SES Award.  Now that's the position that's adopted by the AED in the proceedings and that therefore is directly relevant to the application that's being made.

PN285      

VICE PRESIDENT HATCHER:  Mr Harding, do you have the subsequent correspondence of 8 November referred to by Ms Wright?

PN286      

MR HARDING:  Yes, I do, your Honour.

PN287      

VICE PRESIDENT HATCHER:  Does that assist in any way?

PN288      

MR HARDING:  It doesn't assist in – it doesn't, in my submission, negate the relevance of the material that's been sought.  It certainly states that the department has -  no longer pressing a particular position in respect of the tools but it doesn't negate the fact that its preference in August was that the SES be the only tool.  Now it (indistinct) basis for that.

PN289      

VICE PRESIDENT HATCHER:  Mr Harding, the department has said that it does not intend to make a merits submission in the matter.

PN290      

MR HARDING:  That's right.

PN291      

VICE PRESIDENT HATCHER:  So what's the significance of an opinion which you'd expressed on 16 August this year and have now abandoned?  What relevance has that got to our task?

PN292      

MR HARDING:  The opinion itself, nothing.  But it's the basis for the opinion.

PN293      

VICE PRESIDENT HATCHER:  But that's not being advanced as a submission and unless someone tells us that we should place weight on the opinion expressed by the department back in August, what relevance has it got - - -

PN294      

MR HARDING:  With respect, your Honour - - -

PN295      

VICE PRESIDENT HATCHER:  To know the basis upon which that opinion was formed?

PN296      

MR HARDING:  The documents that would be produced by the department, your Honour, would disclose the basis for the opinion because that's the category of documents that are sought in that situation.

PN297      

VICE PRESIDENT HATCHER:  I understand that but what's the relevance of the opinion, in the first place?

PN298      

MR HARDING:  The relevance of the opinion is that the department is expressing a view in August that the SWS ought to be the only tool.

PN299      

VICE PRESIDENT HATCHER:  Yes.

PN300      

MR HARDING:  Now it has modified that position, I accept that.  Nonetheless at the time that it advanced that opinion it must have had a basis for doing so in light of its status as the owner of the SWS and in light of its participation in the conciliation process to that end.  In those circumstances we say that potentially the material that is exposed through the production of documents in the category may assist the Commission in relation to the application that the AED has made.  Now, of course, it may not either, your Honour.  I don't know what the department has.  But that's the grounds upon which we say there's relevance.

PN301      

VICE PRESIDENT HATCHER:  All right, thank you.

PN302      

MR HARDING:  Can I just deal, your Honour, quickly with - - -

PN303      

VICE PRESIDENT HATCHER:  No, no, just hold on, Mr Harding.

PN304      

MR HARDING:  I'm sorry, your Honour?

PN305      

VICE PRESIDENT HATCHER:  Mr Harding, we won't allow the order to include paragraph 10.  We do not consider that the documents referred to have apparent relevance to the proceedings.  So in relation to the department we will issue an order containing paragraphs 7 and 8 only.

PN306      

MR HARDING:  Thank you, your Honour.

PN307      

VICE PRESIDENT HATCHER:  So the remainder of the orders – what's left that you need?

PN308      

MR HARDING:  We need the underlying data.  So what we've done in order to try and expedite it is that – if I can work backwards, if you've got the document in front of you, from the department's order - - -

PN309      

VICE PRESIDENT HATCHER:  Yes.

PN310      

MR HARDING:  Page 22 of your statement, your Honour - - -

PN311      

VICE PRESIDENT HATCHER:  Yes.

PN312      

MR HARDING:  Is the notice to produce directed to the ARDT.

PN313      

VICE PRESIDENT HATCHER:  Yes.

PN314      

MR HARDING:  We would only seek paragraph 1.

PN315      

VICE PRESIDENT HATCHER:  All right.

PN316      

MR HARDING:  Which of course would expose the underlying data.

PN317      

VICE PRESIDENT HATCHER:  Yes.

PN318      

MR HARDING:  Page 16 of your statement, your Honour, is directed to one of the authors of the demonstration report, Ms Sharon Dulack(?), and we would seek the report itself and the underlying data, that's paragraphs 1 and 2.  We don't need three.

PN319      

VICE PRESIDENT HATCHER:  No but you have the report, don't you?

PN320      

MR HARDING:  We do have the report as part of the conciliation process but of course it was produced in that context.  So what we'd seek to have is produced pursuant to an order of the Commission.

PN321      

VICE PRESIDENT HATCHER:  Yes, all right.  I don't think any party, having regard to the earlier discussion I don't think any party opposes you being given leave to make use of the report itself, but in the parameters we earlier identified.  So does that resolve paragraph 1?

PN322      

MR HARDING:  Yes, your Honour.

PN323      

VICE PRESIDENT HATCHER:  All right.  And then the first one?

PN324      

MR HARDING:  And then the last one is on page 10.

PN325      

VICE PRESIDENT HATCHER:  Yes.

PN326      

MR HARDING:  We don't need paragraph 1 in light of the discussion we've just had, your Honour.

PN327      

VICE PRESIDENT HATCHER:  Yes.

PN328      

MR HARDING:  We seek only paragraph 2.

PN329      

VICE PRESIDENT HATCHER:  Yes.

PN330      

MR HARDING:  And the reason why there are separate orders directed to the two authors is, I'm instructed, because they did different parts of the report and so therefore may have different (indistinct) data.

PN331      

VICE PRESIDENT HATCHER:  All right, thank you.  Does any party wish to make a submission in relation to the remaining three orders for production, why they should not be issued in the modified terms suggested?

PN332      

MS WRIGHT:  Your Honour, on behalf of the department I refer to an email to the Commission of 21 November 2017 by Ms Flora Karapaluchi(?), and it's addressed to Deputy President Booth's chambers.

PN333      

VICE PRESIDENT HATCHER:  Yes.

PN334      

MS WRIGHT:  Yes, that email in part deals with the issue of some of the data, underlying data that's being sought and the basis on which it's collected, the role of the Human Rights Ethics Committee and the participants, the confidentiality agreements that are in place and some public policy considerations that underpin and enable this sort of process to occur and the reasons why the Commission might consider that it's not appropriate to make an order for production of the data or that some anterior steps such as consultation with the committee might be appropriate, or as a further alternative, what confidentiality orders might be made although give the scope of the likely orders we question whether there would be any utility producing the data should it be that the scope of orders that would need to be made is made, because it would severely limit its use in the proceedings, we would say, your Honour.

PN335      

VICE PRESIDENT HATCHER:  All right.  Can we take this one step at a time.  Leaving aside any access to documents produced is there any legal impediment to us taking the first step of requiring the documents to be produced to the Commission?

PN336      

MS WRIGHT:  No, we don't say there's a legal impediment, your Honour.

PN337      

VICE PRESIDENT HATCHER:  Right.  Well, I think the approach we would be inclined to take is to issue the orders in the modified form and require the documents be produced, and then parties will need to make separate application to the Full Bench for access to the documents once we see what's there.  And we will consider at that point whether access is allowed and if it is, on what basis including what confidentiality orders should be made.

PN338      

DEPUTY PRESIDENT BOOTH:  I think it would be helpful to address those sorts of constraints proposed on a document by document basis because part of the difficulty with dealing with it in globo is we don't know, and as a matter of practicality, I don't know because none of that material actually came before the conciliation because it was all preparatory material, what it is.  So it's hard for us to make a decision about it in globo, I think.

PN339      

VICE PRESIDENT HATCHER:  Would that sort of approach address the concerns and the correspondence you think is right?

PN340      

MS WRIGHT:  Sorry, your Honour, I don't quite hear the submission.

PN341      

VICE PRESIDENT HATCHER:  Yes, well what I was suggesting to you is that we take a step by step approach so - - -

PN342      

MS WRIGHT:  Yes, I certainly heard that, yes.

PN343      

VICE PRESIDENT HATCHER:  Yes, so that the second step of access to the documents once the Commission can actually see what the documents are, we can then consider any application for access and any conditions including confidentiality orders that might apply to access.

PN344      

MS WRIGHT:  Yes, your Honour.  Could the department have first access and opportunity to make any applications please?

PN345      

VICE PRESIDENT HATCHER:  I think we'll take it on the basis that we'll notify the parties when the documents are produced and then any entity which seeks excess will need to apply for it.

PN346      

MS WRIGHT:  Certainly.  Thank you, your Honour.

PN347      

VICE PRESIDENT HATCHER:  And we'll deal with those applications when they come in.  Is that a satisfactory course to you, Mr Harding?

PN348      

MR HARDING:  I'm sorry, your Honour?

PN349      

VICE PRESIDENT HATCHER:  Is that a satisfactory course to you, your client?

PN350      

MR HARDING:  It seems sensible, your Honour.

PN351      

VICE PRESIDENT HATCHER:  Yes, all right.  So we'll issue those orders as discussed.  I think that's all we have on our agenda.  Is there any other procedural issue which any party wishes to raise?

PN352      

MR HARDING:  There is, your Honour, just in terms of the timetable.

PN353      

VICE PRESIDENT HATCHER:  Yes.

PN354      

MR HARDING:  As I think the Commission has indicated, it is disposed towards granting inspections and that the expectation is that there will be, as I understand it anyway, one in Sydney and two in Wollongong.

PN355      

VICE PRESIDENT HATCHER:  Yes.

PN356      

MR HARDING:  That could be - - -

PN357      

VICE PRESIDENT HATCHER:  Sorry, there will be two in Sydney and two in Wollongong.

PN358      

MR HARDING:  Okay, in that circumstance, your Honour – we only had one in Sydney - - -

PN359      

VICE PRESIDENT HATCHER:  There's the Endeavour one at Western Sydney and there's the one at Mascot.

PN360      

MR HARDING:  Okay.  And that may deal with what I was about to propose.  We had in mind that maybe that the Sydney ones, or the New South Wales ones, perhaps I could put it that way, could be dealt with on the fifth and then there be inspections on the 6th, and that there be inspections of the Melbourne ones on the next day.  The reason we say that - - -

PN361      

VICE PRESIDENT HATCHER:  Well, we don't need – so there won't be any Melbourne - - -

PN362      

MR HARDING:  The reason we say that - - -

PN363      

VICE PRESIDENT HATCHER:  Mr Harding, before you go on, there won't be any Melbourne inspections, unless parties want to suggest additional Melbourne inspections.

PN364      

MR HARDING:  Well, Keon Park was one of the ones that had been canvassed, your Honour.

PN365      

VICE PRESIDENT HATCHER:  Yes, well no, to be clear I think where we landed from that was that Endeavour invited us to go to one of three locations, and the one which we will go to is the one in Western Sydney.

PN366      

MR HARDING:  Okay, your Honour.

PN367      

VICE PRESIDENT HATCHER:  So there will be no Melbourne inspection at this stage.  So anyway, just so I understand it, so your proposal is we do the Sydney inspections on the 5th?

PN368      

MR HARDING:  Yes, if you can accommodate four of them on the 5th, which you may not be able to given that two are in Wollongong and the other two are in Sydney.

PN369      

VICE PRESIDENT HATCHER:  Yes, I don't think that'll be achievable.

PN370      

MR HARDING:  No, in which case there might be the need to go to the next day.  If then, after the inspections are completed, your Honour, the witnesses that the AED relies upon would be liable to be cross-examined.  Those witnesses, we would expect to be in Melbourne.

PN371      

VICE PRESIDENT HATCHER:  So the 5th if the first day, Mr Harding.

PN372      

MR HARDING:  The 5th is the first day.  On the current timetable that would be confined to openings.

PN373      

VICE PRESIDENT HATCHER:  I think we were - - -

PN374      

MR HARDING:  Then the next day, the 6th - - -

PN375      

VICE PRESIDENT HATCHER:  I think we'd rather hear the openings before we saw the inspections, myself.

PN376      

MR HARDING:  Yes, your Honour.  That's what's being proposed.  So the 5th openings - - -

PN377      

VICE PRESIDENT HATCHER:  Yes.

PN378      

MR HARDING:  The inspections commence on the 6th.

PN379      

VICE PRESIDENT HATCHER:  I see.  Sorry, yes.

PN380      

MR HARDING:  And another day with inspections on the 7th.

PN381      

VICE PRESIDENT HATCHER:  All right.

PN382      

MR HARDING:  And then the AED's witnesses.  Those witnesses, your Honour, we would expect to be in Melbourne.

PN383      

VICE PRESIDENT HATCHER:  All right.  We will take all that into account, Mr Harding.  What I intend to do is that early in the new year we will try to put together a draft timetable and we'll send it to the parties for further comment.

PN384      

MR HARDING:  Yes.  Thank you, your Honour.

PN385      

VICE PRESIDENT HATCHER:  All right, are there any other procedural issues?

PN386      

MS SVENDSEN:  No, your Honour.

PN387      

VICE PRESIDENT HATCHER:  All right.  I thank the parties for their attendance and we will adjourn.

ADJOURNED INDEFINITELY                                                        [11.38 AM]