PN1

VICE PRESIDENT HATCHER: I will take the appearances in Sydney. Mr McDonald, you appear with Ms Pike for Clubs Australia Industrial?

PN2

MR T McDONALD: If it pleases.

PN3

VICE PRESIDENT HATCHER: Mr Bull, you appear for United Voice?

PN4

MR S BULL: That's correct, if the Commission pleases.

PN5

VICE PRESIDENT HATCHER: Mr Cooper, you appear for Club Managers Association Australia?

PN6

MR P COOPER: I do.

PN7

VICE PRESIDENT HATCHER: There are no appearances in Melbourne today? All right, thank you. Parties sitting in the bleachers, do you want to enter an appearance today?

PN8

MS R BHATT: If I may, Vice President, Bhatt, initial R, appearing for the Australian Industry Group and the Heritage of Australia Industry Association.

PN9

VICE PRESIDENT HATCHER: Thank you. Mr Arndt?

PN10

MR J ARNDT: Arndt, initial J, for the New South Wales Business Chamber, ABI and the Aged Care Employers.

PN11

VICE PRESIDENT HATCHER: Yes. Mr Nguyen?

PN12

MR M NGUYEN: Mr Nguyen, initial M, I appear for the Australian Manufacturing Workers' Union.

PN13

VICE PRESIDENT HATCHER: Thank you. Before we start, we have an issues, I understand, with the evidence of Mr Moore; is that right?

PN14

MR BULL: Mr Moore is one of the witnesses who has been required to attend and I haven't seen any material that has been produced, so I was going to, under the heading of "housekeeping", seek access to any material that has been produced. If he appears, he is going to appear after lunch. That's what my understanding was.

PN15

VICE PRESIDENT HATCHER: I understand that he's either available by telephone today or he can appear by video tomorrow. Is that right, Mr McDonald?

PN16

MR McDONALD: Yes, your Honour.

PN17

VICE PRESIDENT HATCHER: Mr Bull, in the event that you want to take him to some of the produced documents, what's the logistics for doing that?

PN18

MR BULL: It may be problematic. If he has his documents then we can talk about them on the phone. Telephone is not the ideal way to do this.

PN19

VICE PRESIDENT HATCHER: I am just wondering, given you haven't seen the documents yet, whether it would be better to defer his evidence until tomorrow morning.

PN20

MR BULL: I think that might be a good idea and I will look at them and if he's not going to progress the matter any further - we are going to hear from three club managers, effectively today - if his evidence is not going to progress things, I will indicate that his statement can be filed, or it may be the case that I just need to ask him one or two questions and tender some of the material produced. There is also a witness Nasser.

PN21

VICE PRESIDENT HATCHER: Before we move on, Mr McDonald, can we proceed on the basis that Mr Moore will give evidence by video from Newcastle tomorrow morning at 10 am?

PN22

MR McDONALD: Yes, your Honour.

PN23

MR BULL: There is also Norman Nasser, who is the Castle Hill Country Club. I haven't been able to get access to any of the material that he may have produced. I don't know whether your associate has that.

PN24

VICE PRESIDENT HATCHER: I understand there's been no documents produced.

PN25

MR BULL: Okay then, there's no documents produced. There has been material produced, and I have got copies of it and I have looked at it, for the remaining witnesses. Do we have the material which was produced because I am going to show it to the witness, so it would be useful to have.

PN26

VICE PRESIDENT HATCHER: You want it present in court, do you?

PN27

MR BULL: I would like the material here, present in court.

PN28

VICE PRESIDENT HATCHER: All right, we will arrange for that to be done.

PN29

MR BULL: Sorry about that.

PN30

VICE PRESIDENT HATCHER: Are they all the housekeeping matters?

PN31

MR BULL: From my point of view, those are.

PN32

VICE PRESIDENT HATCHER: Mr McDonald, you wanted to make some opening submissions?

PN33

MR McDONALD: Yes, your Honour. Clubs Australia advances a claim in respect of various changes to the Registered and Licensed Clubs Award in respect of public holidays. When the association was first asked to indicate the changes that it sought, that was back a couple of years ago and there have been a number of things that have intervened in the meantime.

PN34

One important claim that was being made was with respect to the capping of the number of public holidays that would be payable under the award, but there have been a number of decisions of the Full Bench with respect to that, most particularly in relation to penalty rates, where the Commission has taken the view that the NES governs the question of the number of public holidays. In light of the Bench's decision, that's not part of the claim that we do press.

PN35

The amended draft determination that we seek was forwarded to His Honour the Vice President's Chambers on 20 July and has an amended draft determination. There are effectively two things that are sought in that determination.

PN36

The first relates to clarifying the situation in relation to the Christmas Day loading. It had been the case that where Christmas Day fell on a weekend, in most jurisdictions, it was transferred over to the next Monday. The practice has now been in recent years, particularly in New South Wales, that there are now two days for Christmas Day and, in those circumstances, what the association seeks is that the extra loading for Christmas Day only be paid where public holiday rates are not otherwise payable. I am not sure to what extent that is contentious in the proceedings. That change has been made in a number of other awards which I will take the Commission to in due course.

PN37

The other change that is sought is in relation to a provision of the award that provides that where an employee is rostered off on a public holiday, they get another day off or another day's pay. In relation to that provision, it's perhaps different to some other provisions that are perhaps in awards in relation to this. Some awards, for example, provide that if your rostered day off falls on a public holiday, then you get another day off instead in relation to that time you've accumulated from working a 19-day month. This is a much broader provision in its operation so that any day that the employee is rostered off, they will get this additional day's pay or additional day off, and it's much broader in terms of, say, the claims that have been made by the SDA in these proceedings and some other unions in relation to the operation of those rostered day off type provisions.

PN38

The effect of that provision is that unlike what's provided for in the NES, in the club industry people will get the benefit of every public holiday, even if it's a public holiday that they wouldn't work. So, if someone worked Monday to Friday, in the ordinary course, they would get the benefit of 10 days' public holidays. In the club industry, they get 13. In relation to employees who primarily work on weekends, there are three public holidays that fall on weekends, they would also get the benefit of week day public holidays that they wouldn't have otherwise worked. So, there are three public holidays that fall during their normal working hours and they get another 10 days. That's in addition to the extra week that they get because they are regularly working Sundays and holidays.

PN39

VICE PRESIDENT HATCHER: Mr McDonald, in clause 34.3 of the Clubs Award where it refers to a full-time employee whose rostered day off falls on a public holiday, so "rostered day off" is any day you are not rostered on?

PN40

MR McDONALD: Yes, your Honour, in the context of this award, it is.

PN41

VICE PRESIDENT HATCHER: That is only for full-time employees?

PN42

MR McDONALD: That's correct.

PN43

VICE PRESIDENT HATCHER: Does the persistence with this claim say anything about Clubs Australia's intentions with respect to going into the Hospitality Award?

PN44

MR McDONALD: Your Honour, it doesn't really affect that one way or the other, although Clubs Australia has indicated to the Commission that that is the proposed course that it's seeking to adopt and expects to make an application within the time frame set by the Full Bench to give effect to that indication that it will seek to be part of the Hospitality Award.

PN45

VICE PRESIDENT HATCHER: What does the Hospitality Award say about public holidays in this respect?

PN46

MR McDONALD: That has a similar provision in it.

PN47

VICE PRESIDENT HATCHER: That raises an issue about whether this case has utility in the sense that if it is proposed that Clubs migrate to the Hospitality Award, I don't think you migrate with any altered provision from the Clubs Award with you, you would have to then mount a case for the Hospitality Award, wouldn't you, because there's a broader range of interests involved?

PN48

MR McDONALD: Yes, we would say that if we are successful in these proceedings then it would be logical for the same provision to apply within the Hospitality Award, whether it applies to Clubs or whether it applies more generally than that. In effect, we say that this provision really has been overtaken by the NES and that, in those circumstances, it raises broader issues perhaps in terms of the inclusion of these provisions in awards anyway.

PN49

VICE PRESIDENT HATCHER: What I am really raising with you is if it is being sought to move into the Hospitality Award and that is successful, then this application may have no utility because you would have to run the case again in the context of the Hospitality Award, wouldn't you?

PN50

MR McDONALD: Any application would seek to incorporate the same change that we seek here. We don't say it would be redundant. Obviously if we are unsuccessful, it would be unlikely the provision is going to change in the Hospitality Award. If we are successful then we would expect that, at least in relation to Clubs, the situation in the Hospitality Award in relation to public holidays would be as it is here.

PN51

I think in the penalty rates case where the idea was raised about the amalgamation of the Clubs and Hospitality Award, I don't think it was ever put on the basis that the Clubs wouldn't keep provisions that were distinct to them, but I think the observation was made that really there weren't so many of those and it was believed that they could probably be accommodated within the one award. We would say this would be the type of provision that would fall into this category.

PN52

We do say if the Commission ultimately finds that it's not appropriate to supplement the NES in relation to public holidays, that has got broader implications, in any event, so one might question as to whether a similar provision in the Hospitality Award is a relevant provision or a fair provision.

PN53

The approach that we seek in relation to this is not particularly novel. We say that since the NES has changed the position in relation to public holidays, there's been a general recognition by the Commission that those provisions shouldn't be supplemented.

PN54

If I could just take the Commission very briefly to a decision in relation to the Airport Employees Award, if I can just hand that up, please. This was an application as part of award modernisation by APESMA and the AMWU to vary the Airport Employees Award to include supplementary provisions in relation to public holidays that had previously existed. This decision is [2010] FWAFB 286. If I could take the Commission to paragraph 11 where it is said:

PN55

The AMWU and CPSU seek supplementation of the Public Holidays provisions of the NES to the extent of an additional public holiday and public holidays which fall on a weekend. The NES deals with public holidays on a comprehensive basis and prescribes uniform minimum conditions. It would not be appropriate to supplement these provisions simply to maintain more generous arrangements.

PN56

What we say is that is reflective of a general position that has been taken in relation to the award process of awarding supplementation of NES provisions in particular in relation to those provisions in relation to public holidays.

PN57

As the union points out in its submissions, this type of provision that has existed previously in the club industry, and we understand that it has its background in instruments that were made when the Banks and Bank Holidays Act was largely regulating award public holidays, with some supplementation from industrial tribunals. As the Commission is aware, that type of legislation was dealing with a situation where it determined what days banks could and couldn't open. Perhaps it had some broader application, but there wasn't really a lot of consideration as part of that legislation to the circumstances of people who might work on weekends.

PN58

What we submit, however, though, is that that has changed and state governments have taken it upon themselves to consider the situation of people who work on weekends. In New South Wales, that has been fairly stark, so when the part of the modern award came in 2010, a Public Holidays Act was introduced and one of the things that was done as part of that Act was seek to amend what had been regarded as perhaps an anomaly in the past of moving public holidays that might fall on a weekend to another day. I mentioned Christmas Day before. If that falls on a weekend, there's not a substitute day, it's now an additional day.

PN59

VICE PRESIDENT HATCHER: Are we talking about New South Wales now, are we?

PN60

MR McDONALD: Yes, your Honour.

PN61

VICE PRESIDENT HATCHER: Why New South Wales?

PN62

MR McDONALD: New South Wales isn't the only state, it has happened across the board, but I will go to New South Wales in particular by way of example, but there are other things that we could do the same thing in relation to.

PN63

One important thing about New South Wales is that the club industry is largest in New South Wales and anywhere else in the country and really in terms of the large bulk of employees, it's in New South Wales and, to a lesser extent, in Queensland. So, in terms of impact of provisions, New South Wales is probably one of the states which is most impacted by these public holiday provisions, but, in saying that, New South Wales isn't perhaps as generous in relation to public holidays as other states.

PN64

If I could take the Commission to two documents briefly. One of the documents is an extract from the recent penalty rates decision [2017] FWCFB 1001, being table 72. The Full Bench, in its decision, helpfully identifies what days had become additional days, particularly at least in 2017. The Commission may recall that in the judgment it was said there was really quite a diverse range of circumstances in relation to public holidays, largely brought about by the actions of state governments who were empowered to proclaim public holidays which then become public holidays for the purposes of the NES. In the grey box, it refers there to additional days that have been given by legislature.

PN65

One point that we also make in relation to New South Wales is that this has all happened post the modern award coming in, so these extra days in New South Wales weren't something that was around at the time that the modern award was made, but basically there's been an increase from around about 10 public holidays to somewhere between 13 and 16, depending on the year, depending on the state or territory, and then some states, such as South Australia, there's also additional part day public holidays. We submit that the reason for this is that the state governments have turned their attention to the circumstances of people who work on weekends and who might otherwise miss out on a public holiday.

PN66

The other document I have handed up is excerpts of various Second Reading Speeches from states and territories where they have dealt with this issue of trying to respond to the circumstances of people who work on weekends. If I could just take the Commission briefly to that. I won't go through all of them, but if I could just go to the first attachment, which is the Second Reading Speech in relation to the Public Holidays Bill 2010 in New South Wales. On page 2 of the copy - - -

PN67

VICE PRESIDENT HATCHER: Where is that?

PN68

MR McDONALD: There's a table summarising the provisions and then, after that, there's an attachment which has got Shop Trading Amendment Bill and then Public Holidays Bill 2010.

PN69

VICE PRESIDENT HATCHER: Yes.

PN70

MR McDONALD: On the second page of that copy, at about point 5, it is said:

PN71

Under this bill, the Government will ensure the most important occasions for a holiday will be observed on whichever day of the week they occur, including a Sunday. This will apply to Sunday occurrences of Christmas and Boxing Day, New Year's and Anzac Days and Easter Sunday.

PN72

The fact that Easter Sunday is not currently a holiday may come as a surprise to many in the community who work in businesses that never operate on Sundays. The. current public holiday law was passed in times before the liberalisation of Sunday trading, when it was assumed business would not be conducted on a Sunday.

PN73

Apart from the requirement for general shops to remain closed on a Sunday that from time to time is also Christmas Day, Boxing Day, Anzac Day or at Easter, contemporary working patterns have resulted in Sundays routinely becoming ordinary working days in various industries, particularly the services sector, public transport and emergency workers, and hospital staff and the like.

PN74

I end the reference there, but we say that there's been a general indication under that move when that legislation was introduced and in other states that there is this move to take into account the circumstances of people who work on weekends and ensure that they get the benefit of public holidays when they fall. We say that state governments have already taken that into account, so, in those sort of circumstances, the argument that the NES shouldn't be supplemented makes a lot of sense, not just from a strictly legal point of view, but also makes sense in that the state government is already dealing with these issues and it creates a problem if the award then seeks to deal with these issues.

PN75

Of course, the type of impact that that has is that if you increase the number of public holidays to take into account the circumstances of people who work on weekends, you've got the cost of a number of extra public holidays, so in the club industry generally, employers will have to operate on a public holiday, it's generally an important time for them, there's an expectation that they will be open, so penalty rates have to be paid on those extra days; where people have days off, they've got to be paid for that; in addition, other staff have to be brought in, but then, even if employees wouldn't ordinarily work and suffer no disutility, they then get paid an extra day. So, you are sort of better off really if public holidays don't fall within your roster because in that week you'll get six or seven days' pay, so that, say, for example, at Easter, to take into account the circumstances of weekend workers, you have Easter Saturday and Easter Sunday declared as public holidays.

PN76

COMMISSIONER JOHNS: Sorry, "Easter Saturday", do you mean the day before Easter?

PN77

MR McDONALD: Yes, Commissioner.

PN78

COMMISSIONER JOHNS: That's not Easter Saturday, it's Holy Saturday.

PN79

MR McDONALD: Sorry. Thank you. So there's that Saturday, there's also the Sunday and then there's obviously the Friday and the Monday. So, if you are a Monday to Friday worker, by virtue of this provision, you would get the Friday off, or paid if you worked on the Friday, and then you would get an extra two days' pay for the weekend that you wouldn't have otherwise worked, so you'd get seven days' pay in that week.

PN80

We say that is quite a significant extra benefit that's been given to employees in the club industry which isn't warranted in circumstances where the NES comprehensively deals with the situation in relation to public holidays.

PN81

What we say in particular is that the way that the NES is structured is that it seeks to nominate particular days that will be celebrated as public holidays and it identifies by the operation of that legislation exactly what those days will be and it gives employees the benefit of those days, they can decide whether or not they wish to work and, if they are absent on a public holiday, as they are entitled to do, then they are entitled to do so without loss of pay.

PN82

We say that not only does the legislation provides that that's what should happen in relation to those public holidays, but it doesn't give scope at the same time for there to be additional things dealt with. We say that section 116 of the legislation in particular makes it clear that the entitlement in relation to public holidays is only for those people who would have ordinarily worked on that day. We say that is clear in the way that that section is drafted and we say it's reinforced by the notation that exists under that section.

PN83

There may be some debate about whether that notation forms part of the Act, but certainly for someone who is reading the Act and trying to ascertain what they are required to pay their employees, it would seem, certainly on the face of the Act, that it's limited to only paying people in respect of those public holidays that they would ordinarily have rostered hours for, and it seems to, on its face at least, prevent having a situation where people would get the benefit of those public holidays in the NES on days that they wouldn't have otherwise worked.

PN84

We say it could be put as highly as the provision in the award operates to exclude the NES. Even if it was found that it didn't go as high as excluding the NES and was therefore invalid, it is certainly inconsistent with the NES and inconsistent with the intention of parliament as expressed in that section and also as expressed in the Second Reading Speech where that position is also reinforced.

PN85

Some might say, "But there are additional things that have been given", but we say it's not quite that because the way that the provision operates is to negate the effect of section 116. So, at the same time as it gives a benefit, it prevents people who wouldn't otherwise be absent on public holidays from getting a particular benefit.

PN86

Account also has to be taken in that regard to the fact that the award draws the entitlements in relation to public holidays from the Act itself. It says that in respect of the public holidays that are prescribed in the Act, if you don't work them, even though they are all prescribed in the Act as being on particular days, you can have them on another day. We say that is not the way that the Act is intended to work. It also provides that if someone isn't absent on a public holiday in accordance with section 116, they get paid for the day anyway. We will seek to develop that later on, but we say it either excludes or at least is inconsistent with what the intent of the legislation is in relation to public holidays.

PN87

VICE PRESIDENT HATCHER: Doesn't that mean the provisions have no effect?

PN88

MR McDONALD: It would, your Honour, but we say it's complicated. We would say, putting it at its highest, that would be the case. We accept there's much room for debate about whether you say it's a supplementary provision or an exclusionary provision. If it's an exclusionary provision, then it's to no effect, even if it was to supplement, in which case it should come out of the award anyway. If it's not exclusionary and might be regarded as supplementary, at least at a minimum, it means that the award is not particularly simple or easy to understand because what it asks an employer to do is you look at the legislation on its face, you read the notation and it says to do one thing but then the award says to do the opposite. We say whether it is put on the basis of being exclusionary or it's put on the basis that there's no need for supplementation, on either basis, it's a provision which is no longer appropriate for inclusion in the award.

PN89

Given that the argument is, to a large extent, around how the legislation operates and perhaps how things have moved on in relation to this public holiday issue with the introduction of the NES and also the public holiday legislation of state governments, we say that's primarily the basis upon which we would ask the Commission to move.

PN90

The Commission obviously needs to take into account the provisions of the Modern Awards Objective in section 134 and we present some evidence in relation to the costs associated with public holidays and the particular provision in order to address those factors, and we will be putting in particular the factors that will be relevant to the Commission's consideration of the 134 factors will be paragraph (b) in relation to an award being simple and easy to understand and also section 134(d), (f) and (h) dealing with the effect on business employment costs and so forth.

PN91

Unless there are any other matters at this stage, I propose to call our first witness, which would be Mr Trimarchi.

PN92

VICE PRESIDENT HATCHER: Do you want to say anything by way of opening, Mr Bull?

PN93

MR BULL: There is a matter which I wanted to raise. The Clubs Award is one of these awards that came through the penalty rates review unscathed. There was no recommendation for any alteration of that award, including the public holiday rate provisions in that award. There was a view expressed by that Full Bench that there should be some further review of a number of awards and in relation to the Clubs Award, the Full Bench offered two options. The first option was to amend the coverage clause of the Hospitality Award and essentially merge the Clubs Award with the Hospitality Award. The assumption is that it would be a schedule and also the assumption would be that it would get the package deal, the rate reductions and other ancillary provisions that form part of the Hospitality Award.

PN94

On 2 May, my friend's client indicated that that association wished to avail itself of option 1, which is the merger. Option 2 is just further review of the award and allowing the award to continue on. In United Voice's submission on 15 June, we devoted some attention to what I have termed a "threshold issue" and I apprehend by the Vice President's question that you have either read our submission or you understand the point we make.

PN95

There was a capacity to ventilate this issue in the penalty rates review and there will be a further capacity to ventilate this issue in the yet to be constituted Full Bench which the President has determined should deal with further reviews. In our submission on 15 June, we indicated that Clubs Australia should indicate before this matter proceeds what it is doing in relation to options 1 and 2. It has chosen not to, although on the record it has already indicated a preference for option 1, which is the merger with the Hospitality Award. There is, as I understand it, a further direction, which is a cut-off date which the President has imposed, which is the 28th, where all those interested in - - -

PN96

VICE PRESIDENT HATCHER: The 28th of what?

PN97

MR BULL: Of this month.

PN98

VICE PRESIDENT HATCHER: All right.

PN99

MR BULL: Where all those interested in the second bite of the cherry, so to speak, have to indicate whether they are availing themselves of that option.

PN100

Our view, which is developed in the written submission, and which I apprehend there's some awareness of, is that it's inappropriate for this application to be dealt with in this forum. I am not asking you to deny my friend natural justice. There is simply an excess of opportunities, and it's also inappropriate because the proper place for the claim in relation to section 34 to be dealt with is a separately constituted Full Bench where the offer which is on the record, on the table, if it's taken up, they can progress it there because it is obviously connected to other matters. I was reading the various statements this morning and it occurred to me that a lot of these statements are basically complaining about the public holiday rate, they are not complaining about substituted holidays, and that is one of the problems.

PN101

My submission is that this Full Bench should not deal with the claim in relation to section 34.3 for the reason that this is an inappropriate place to deal with it. There is already a process which has been indicated to occur where it can be dealt with properly because you have the identical clause in the Hospitality Award which Clubs have indicated that's where they want to go.

PN102

VICE PRESIDENT HATCHER: Is my understanding of what you have referred to as option 1 that Clubs would accept the Hospitality Award holus bolus or might there be some preservation of particular Club Award conditions involved?

PN103

MR BULL: My understanding is that they talk about - I haven't got the decision in front of me but I know it well - they talk about the amendment of the coverage clause in the Hospitality Award to encompass club employees, and my understanding of it - it hasn't been fleshed out - my understanding of that is that option 1 and option 2 are both essentially vehicles for the rate reductions that the Commission has indicated is appropriate in the Hospitality Award to be translated into the Clubs Award because there's a general finding that these are similar sectors and that there's no reason for a separate award. Option 1 is expressed by that Full Bench as its preferred option.

PN104

My understanding is that you would get what I call the ancillary provisions, which is clearly what section 34.3 is. You would get all the other bits and pieces in the Hospitality Award. They are quite similar awards but there are bits that are different. You would also be getting the reduction in the public holiday rate, so that would obviously also affect the issue about whether the current provision is appropriate.

PN105

VICE PRESIDENT HATCHER: Mr Bull, option 1 can't literally be just to amend the scope clause. The reason I say that is there are certain classes of workers that have particular provisions that are attached to them in the Clubs Award, which are presumably greenkeepers. Are there provisions that are not necessarily contemplated in the Hospitality Award?

PN106

MR BULL: There's always the devil in the detail.

PN107

VICE PRESIDENT HATCHER: Yes.

PN108

MR BULL: Having just drafted determinations for a casual overtime entitlement, something which appears straightforward becomes more complex when you have got to factor in roster clauses and other bits and pieces, but, on its face, option 1 is that the clubs sector, the employees and the employers currently covered by this award migrate to the Hospitality Award, they become a schedule and they don't necessarily - there may be some provisions that they share. The point is - - -

PN109

COMMISSIONER HAMPTON: I'm just not sure the dichotomy is quite as sharp as you point out because it's detail but it's fundamental detail about that.

PN110

MR BULL: The point I'm putting, we can't prevent a participant in this four yearly review exercising options that have been indicated by the Commission as options. What I am saying is that this is not the place to deal with it, there is no utility, as the Vice President has indicated, and I am asking you not to hear the claim in relation to section 34.3 because there is no utility in hearing it. It is going to be dealt with in another process where the related issues which are relevant to whether or not the claim should be made, or should succeed rather, can be heard together. This other, separately constituted Full Bench is the appropriate place for the claim by Clubs to be heard and this is no. It is not about dismissing the application.

PN111

VICE PRESIDENT HATCHER: Am I right in assuming that United Voice opposes option 1?

PN112

MR BULL: Yes. We oppose options 1 and 2 and we made quite a lengthy written submission indicating that the approach of that Full Bench was aberrant, in a sense, for want of a better term, it offended the principle of finality. There was a finding that both the restaurateurs and (indistinct) hadn't made out a merit case for change. We, to use a colloquialism, won fair and square and the consequence of that finding should have been that there was no further review. The Commission has considered otherwise.

PN113

COMMISSIONER HAMPTON: Doesn't the separately constituted Full Bench have to deal with that matter first?

PN114

MR BULL: That is the threshold issue that the President has indicated will be the first item on the agenda of that separately constituted Full Bench. I am not asking you to dismiss the claim, what I am asking you to do, and it's something which I think is permissible under the general powers of the Commission in part 5.2 of the Act to order its own proceedings, is that the claim should not be heard here. There is a clear process. If they want to exercise option 1, they can have it heard in that sort of, I suppose, tailoring process of how the migration is going to take place. If they want to take option 2, which is further review, there is nothing that will preclude them progressing this claim in the context of further review of the rates clauses, which will include, obviously, the public holiday rates, and any decision made here obviously can indicate that that is the basis that this tribunal or this body is declining to deal with the matter.

PN115

If you are minded to agree with my submission, which is that the claim in relation to 34.3 should not be heard here, I would be happy for the related claim under 29(c) to be dealt with on the papers and I don't wish to make any further submission other than the written submission I have made, and I wouldn't intend to call any of the witnesses. I don't think the witnesses actually progress that claim particularly.

PN116

The other matter is that we have clearly indicated this in our written submissions, it is fleshed out, it is made, they are given an opportunity - I indicate that there was a reply date and that was the date where they could make some response as to whether the threshold issue had relevance. There hasn't been any response.

PN117

It is inappropriate, you will be dealing with something which is related to other things that are likely, almost certainly, to change, so any decision you make in relation to the clause in this particular award will inevitably be irrelevant. So, we are wasting our time, so to speak, and the matter should be not dealt with today and the options that have been made available to Clubs allows them to progress it in an appropriate forum with related matters. That is my submission.

PN118

VICE PRESIDENT HATCHER: Do you want us to make that decision now?

PN119

MR BULL: It wouldn't be inappropriate to make it now because it would alleviate the need to essentially spend most of today cross-examining witnesses that, if you make that decision, there's no point doing it.

PN120

VICE PRESIDENT HATCHER: There's a number of ways this could play out. For example, you have referred to your threshold submission that you intend to make in relation to what you call option 1 and option 2.

PN121

MR BULL: It is actually re-review. It is a threshold submission but it's - - -

PN122

VICE PRESIDENT HATCHER: If you were successful in that argument, we would still have the Clubs Australia claim to be dealt with here; is that right?

PN123

MR BULL: I suppose so. One possibility may be just to sort of adjourn it indefinitely awaiting the outcome of, I suppose, the success of our threshold argument about the appropriateness of further review.

PN124

VICE PRESIDENT HATCHER: The other option might be to hear the case but defer any decision until those other matters have been determined or the path becomes clearer.

PN125

MR BULL: I suppose so. I was thinking in terms of, I suppose, time and effort, but I am happy to proceed. If the tribunal thinks that it is more prudent to hear the evidence and keep it, so to speak, in the cupboard, we can do that, but we have a view that enough is enough and there are options provided to parties. Effectively, you don't have three attempts to get what you want in a statutory review which talks about "a review must take place", but I am in your hands. I would ask this Full Bench to make some determination about the general issue of the appropriateness of dealing with the claim at the moment as things stand because our view is that this is not the appropriate place for that claim to be dealt with.

PN126

My opponent has indicated on the record that they are going to take up option 1, which is the merger. That is in a written document which they have filed with this Commission. The 28 July date has been, I suppose, a cut-off date in order to hurry along the process, but, notionally, Clubs have already made up their mind, unless they are planning to change their decision.

PN127

I would ask for some sort of indicative ruling concerning the appropriateness of this claim being agitated here. If you are minded to, I suppose, go down the prudential path of hearing the evidence and just saving it for later, that is acceptable, but my principal submission is that this particular Full Bench, in the exercise of your discretion to structure matters, it's not appropriate to hear this claim now.

PN128

VICE PRESIDENT HATCHER: Mr Cooper, do you want to make a submission on this?

PN129

MR COOPER: Yes, I do. I am in support of United Voice's submission and this started with your observation, Vice President, about the conduct of this matter. There was a statement issued by the President on 6 July in regards to the penalty rates decision and part of that invited Clubs Australia Industrial or any other interested party to make application on revoking the award or otherwise. Once received, there would be a specially convened Full Bench to deal with the future conduct of the matter.

PN130

When this matter came up, my logic was kicking in to say this application, it's heard in its amended fashion of 20 July, a decision is made to deal with clause 34 of the Clubs Award, then a short time later, after an application is made on the 28th, the award may be revoked and certain provisions transferred across to the General Hospitality Award or a schedule.

PN131

In the 23 February decision of the Full Bench on penalty rates, there were sort of two options along those lines of how it was to be dealt with. The Full Bench has a view that the Clubs Award should be revoked, that they prefer option 1, but I am thinking when you look at the two awards, the resources spent to hear this matter at the moment and then you find the Hospitality Award kicks in, clause 37 of the General Hospitality Award is identical to clause 34 of the Clubs Award, so we go through this exercise and at the end of the day, it may well roll back to the General Hospitality Award, so everyone has had a debate about an issue that may, in time, reverse a decision based on their application if they were to be successful.

PN132

The association, with United Voice, are opposed to option 1 and a number of significant employer groups within our industry are opposed to it. Clubs Australia, quite rightly, as my friend Mr Bull points out, on 2 May, they have flagged that they are in favour of option 1 of revoking the award and want to offer some guarantees of what provisions will be transported across.

PN133

Automatically you have got a conflict. If this award is varied as a result of these deliberations, clause 34 is automatically in conflict with clause 37 of the award, so I would be in favour of support United Voice's application that the matter be adjourned until we, with some certainty, know whether Clubs Australia, or any other interested party, will be making the application by the 28th and if there is a specially constituted Full Bench arising from that, how that matter progresses.

PN134

I think we could not waste a lot of time, so to speak, which may be overtaken by events arising from the 6 July decision by Ross P. Thank you very much.

PN135

MR BULL: Can I just make one point and then my friend can have his say? This is not earth-shattering in the sense that we are not dealing with an issue which is in any sense significant in that it affects a large number of people or is an entitlement which is providing significant remuneration or benefit to anyone. There is a capacity under the current award where you could exempt employees and I understand that's quite common. The main people who will be the beneficiary of the substitute days are award-reliant full-time employees and those on a 20 per cent annualised salary arrangement. Anything beyond that 20 per cent, they are not covered by this.

PN136

The other matter is that in terms of timing, the next big lot of - we are through Easter - the next big lot of public holidays is Christmas, so there is ample time. I understand there's one or two, but Christmas is essentially it. There's enough time, should this matter today not proceed, for, I would have thought, the issue to be sorted out by Christmas. That is when it effectively has significance, but, even then, it touches upon a fairly narrow, small group of people and, in itself, it's not a particularly grand entitlement. It's a little bit of generosity which affects a relatively small group of people. That's all I wish to say.

PN137

VICE PRESIDENT HATCHER: Mr McDonald, in reply?

PN138

MR McDONALD: This submission comes as some surprise. These proceedings have been on foot since 2014 and, prior to that, the Full Bench made a decision about how it was going to approach dealing with the various common issues, including public holidays. So, some years down the track, the first day of hearing, for that submission to be made, we say it's inappropriate. This has been agreed to with the Full Bench for a number of years now that this hearing will take place.

PN139

In relation to this idea of, "Look, let's wait until the hospitality case is dealt with in terms of the award coverage", it is, of course, the position of the union that they are dead set opposed to that. They are saying that the decision should never have been made and seeking judicial review of that decision. It's not as though they are saying, "Oh, well, that case can proceed, it can all be sorted out there", they are saying that that case shouldn't be able to proceed at all and the changes that have happened in the Hospitality Award which give rise to the application for the coverage of the award to be amended should never have been made. That case is persisting.

PN140

We say that this case has been set down for some time, there's no reason to change the position. Even if the same argument is raised in relation to the Hospitality Award, we will still say that whatever decision arises from this Full Bench should pertain in relation to that award, for better or worse. In those circumstances - - -

PN141

VICE PRESIDENT HATCHER: No doubt you will say that, but it raises the real possibility that a different Full Bench will then have to hear the same case a second time.

PN142

MR McDONALD: We would say that is an unlikely scenario because, at the very least, it may very well turn on the decision that is made. If, for example, a decision is made on some broader basis, remembering this rostered day off provision has been raised by the SDA and also the health unions and so forth, presumably there will be some considerations at least of general application that will pertain to it. So, even if the Clubs' application was not to be heard, you would still be hearing about the same issue from the health unions and the shop unions, so it's not as if these proceedings wouldn't continue, it would just be that our right in relation to having our application heard would go off into the ether to see whether the union is successful in its objections in relation to various other things and whether we ultimately get to run the case.

PN143

It is not as though the case won't still continue. All these considerations that I have raised in relation to the NES and how these provisions fit will still have to be heard by this Full Bench. Presumably, if we do want to ultimately have our application, we will also have to be heard on it in relation to the common issues. So, it's hard to see that the matter won't still be ventilated over these next three days, unless what is being put is that none of the applications should be heard.

PN144

As I understand what is being put is that the union applications to include provisions like that in the Clubs Award into their award should be heard, the application to remove the same sort of provision from the Clubs Award should not be heard. There does not seem to be a lot of utility in that approach, particularly in circumstances where the union is opposing whatever is being sought, whether it be in relation to penalty rates, whether it be in relation to the combination of the Hospitality Award, but, ultimately, whatever comes out of this, we would say would still be relevant to Clubs and clubs, in terms of an industry, are an important industry, public holidays in the club industry is an important consideration and, in our respectful submission, it is appropriate to deal with them in these proceedings.

PN145

VICE PRESIDENT HATCHER: We might take a short adjournment to consider what has been put.

SHORT ADJOURNMENT [10.57 AM]

RESUMED [11.18 AM]

PN146

VICE PRESIDENT HATCHER: We will issue full reasons for the course we propose to take in due course, but we can indicate to the parties that the Full Bench considers it would be not an appropriate course to determine the claim made by Clubs Australia Industrial in relation to the Registered Clubs Award if the outcome of the penalty rates proceedings and the associated residual proceedings is that the award is to be abolished and the coverage subsumed into the Hospitality Award.

PN147

In those circumstances, we consider that the Bench which is hearing that matter should fully hear and determine that matter, including, if it arises, the circumstance in which that coverage should be subsumed into the Hospitality Award. So, we would not issue a decision in relation to the claim at least until the outcome of those proceedings is known and if the Registered Clubs Award is to be abolished, we would not issue a decision in relation to the claim at all.

PN148

The only circumstances in which we consider it appropriate to issue a decision in relation to the claim would be if the Clubs Award was ultimately not subsumed into the Hospitality Award but survived as an independent award, that is that United Voice was successful in its position.

PN149

Having stated the position in that respect, Mr McDonald, we think it appropriate to leave it to you to decide whether you want to run your case now in those circumstances or whether you would prefer to defer it, that is, you may be running a case in circumstances where it is on the cards that we would not propose to issue a decision in relation to it, given what is happening with respect to the Hospitality Award.

PN150

Obviously I do not expect you to answer that on the run, so would you like a short adjournment to consider your position in that respect?

PN151

MR McDONALD: Yes, if I may, thank you, your Honour.

PN152

VICE PRESIDENT HATCHER: All right, we will now adjourn.

SHORT ADJOURNMENT [11.21 AM]

RESUMED [11.38 AM]

PN153

VICE PRESIDENT HATCHER: Yes, Mr McDonald.

PN154

MR McDONALD: Thank you, your Honour. Your Honour, I'm instructed to seek to proceed if it's convenient to the Bench. Perhaps as the matter develops it can be - the Bench can consider as to the ultimate disposition of things and the timing of its decision and so forth.

PN155

We're conscious that there are a number of matters going on here, such as the application, which has yet to even be filed; there are proceedings in the Federal Court, and so forth; all of those things perhaps come into the mix to create some uncertainty about the way forward. But in terms of the matter, we would seek to proceed as planned.

PN156

VICE PRESIDENT HATCHER: Okay. The first witness is Robert Cassano?

PN157

MR McDONALD: Merv Trimarchi - Anthony Trimarchi.

PN158

VICE PRESIDENT HATCHER: Anthony Trimarchi, all right.

PN159

MR McDONALD: Can I just deal with one matter before he comes in in relation to the order for production. In relation to the order for production against Mr Trimarchi, this was issued while he was overseas. He flew back in yesterday afternoon. There was an attempt in his absence to look at what may have satisfied the schedule, and documents were produced to the Commission.

PN160

In relation to the order for production there are just a couple of matters on which I wish to make reference. One document that was sought by the union was to a letter of engagement of KPMG dated 1 September 2015. Apparently that letter is a letter that was sent to Clubs New South Wales. That's not in, but that wasn't sent to Mr Trimarchi, and that's within the ownership of Clubs New South Wales. We understand that that has, as they see it, commercially sensitive information in it, and just doesn't only deal with the report, but we say that ‑ ‑ ‑

PN161

VICE PRESIDENT HATCHER: What, so no copy of the letter was kept?

PN162

MR McDONALD: Apparently there is a letter with Clubs New South Wales in relation to it.

PN163

VICE PRESIDENT HATCHER: No, but the ‑ ‑ ‑

PN164

MR McDONALD: That's not a process that Mr Trimarchi himself was involved in. There was also a memorandum of understanding. I'm not sure what relevance that has, but we've been able to find a copy of that separately, and that will be provided. In relation to ‑ ‑ ‑

PN165

VICE PRESIDENT HATCHER: It will be provided when?

PN166

MR McDONALD: Now, your Honour.

PN167

VICE PRESIDENT HATCHER: Have you given it to Mr Bull?

PN168

MR McDONALD: We have now, your Honour. That has only been found this morning, given that it's Mr Trimarchi's first day back. In relation to the information that has been sought, there's information about - in relation to paragraph 9 about it - there's a request about:

PN169

The past two years, any documents sent to members of CAI concerning restrictions on trading hours.

PN170

There's no such document, but it's not clear in the next paragraph as to where it says:

PN171

Any documents sent to members of CAI concerning trading hours.

PN172

That if it's said that that's meant to capture historical documents in relation to trading hours. We're not sure. We have taken it that we're talking about the last two years. Otherwise, apart from clarifying those matters, we would seek to call Mr Trimarchi.

<ANTHONY SALVATORE TRIMARCHI, SWORN [11.43 AM]

EXAMINATION-IN-CHIEF BY MR MCDONALD [11.43 AM]

PN173

THE ASSOCIATE: Please state your full name and address.

PN174

MR TRIMARCHI: Anthony Salvatore Trimarchi, (address supplied).

PN175

MR McDONALD: Mr Trimarchi, have you made a statement for these proceedings signed 18 April 2017?‑‑‑I did.

*** ANTHONY SALVATORE TRIMARCHI XN MR MCDONALD

PN176

Do you have a copy of that statement with you in the witness box?‑‑‑I do.

PN177

I seek to tender that statement.

PN178

MR BULL: There's an annexure. Does my friend seek to tender the annexure to the statement?

PN179

VICE PRESIDENT HATCHER: We don't have an annexure, Mr Bull.

PN180

MR McDONALD: There was a document, the KPMG 2015 National Club Census. I think that when it was filed there was some problem with it, clicking onto that link, and it was supplied as a separate document.

PN181

VICE PRESIDENT HATCHER: All right. Just hold on a second. We don't seem to have that on the Bench, Mr McDonald.

PN182

MR McDONALD: My apologies, your Honour. We don't propose to go to that. I'm not sure whether Mr Bull does, but we seek to tender that as part of the statement.

PN183

MR BULL: Perhaps if the Bench could be provided with a copy, because I do intend to object to this document being tendered; and also the bits of the statement of Mr Trimarchi which refer to it, I say selectively and deceptively. So it would be useful if you had a copy because my objection - I know these are proceedings where the Rules of Evidence don't apply, but my objection is a substantive one, and it requires being able to view the document.

PN184

VICE PRESIDENT HATCHER: Do you have a copy you can show us, Mr McDonald?

PN185

MR McDONALD: Your Honour, I do have copies for the Bench. My apologies.

PN186

MR BULL: Anyway, if you go to the Club Census, if you look at page 2 - and this was the purpose of some of the requisitions in relation to the report. So this is page 2, there's a heading called Third Party Reliance:

*** ANTHONY SALVATORE TRIMARCHI XN MR MCDONALD

PN187

This report is solely for the purpose as set up in the introduction section and for Clubs New South Wales information. It is not to be used for any other purpose or distributed to any other party without KPMG's prior written consent.

PN188

And if you look at, then, the introduction, it talks about - essentially it's a strategic planning document and it's not sort of supposed to be a general census in any sort of scientific or rigorous manner. There's an issue of, I suppose ‑ ‑ ‑

PN189

VICE PRESIDENT HATCHER: What's the objection, Mr Bull?

PN190

MR BULL: Beg pardon?

PN191

VICE PRESIDENT HATCHER: What's the objection?

PN192

MR BULL: This document is not supposed to be distributed to third parties without the permission of the author, which is the accounting firm. I've asked for that permission, but they've refused to provide it. I've also asked for the letter of instruction in relation to what gave birth to this report. They've refused to provide it.

PN193

There's an objection on the basis of by admitting it into evidence you're potentially injuring a third party unconnected with these proceedings. That should not occur. And there's a broader objection in that it's only supposed to be used for strategic planning. It has been presented here as some sort of scientific survey which can and should be relied on. I've asked for the letter of instruction and haven't been provided with it.

PN194

So on those two broad grounds I would suggest that it shouldn't be allowed to be filed or admitted as evidence in these proceedings. And parts of Mr Trimarchi's statement, insofar as they refer to it - they make some sweeping statements about 41 per cent of the industry being in distress - should also be deleted. That's why I say it shouldn't be seen by this Full Bench.

PN195

VICE PRESIDENT HATCHER: Mr McDonald, what's the issue about the permission of KPMG? Has that been secured?

PN196

MR McDONALD: We understand this report - and it's set out in the overview as something that's commissioned by Clubs for its use, and as it says there - this is in the Overview part - that:

*** ANTHONY SALVATORE TRIMARCHI XN MR MCDONALD

PN197

The club census provides the important evidence base for individual clubs for critical input to strategic planning undertaken by the industry. It is also used to guide and inform discussions with key government and non-government stakeholders.

PN198

So we certainly don't see any problem in using the report.

PN199

VICE PRESIDENT HATCHER: The question was: has KPMG's consent been obtained?

PN200

MR McDONALD: I'm instructed that specific consent in relation to these proceedings, no. But we don't understand that Mr Bull is acting for KPMG either in terms of his objection.

PN201

VICE PRESIDENT HATCHER: On page 4 it says the report was commissioned by Clubs Australia and Clubs New South Wales.

PN202

MR McDONALD: Yes.

PN203

VICE PRESIDENT HATCHER: Why, in those circumstances, should not the letter of instructions be produced?

PN204

MR McDONALD: Because there is no letter to Clubs Australia, as I understand it. It was a matter in relation to, so as I understand it, it's some letter from KPMG in relation to the commercial arrangements for work that it does with Clubs New South Wales in relation to this and other matters.

PN205

VICE PRESIDENT HATCHER: Was there a letter of instructions for the preparation of the report?

PN206

MR McDONALD: We understand that - no. As we understand it, what's being sought is a letter from KPMG as to what its arrangements were; it's not a letter to KPMG commissioning the report.

PN207

VICE PRESIDENT HATCHER: Is that the letter - Mr Bull, what was the letter that your client sought?

*** ANTHONY SALVATORE TRIMARCHI XN MR MCDONALD

PN208

MR BULL: I sought two things. In the notice that this Commission made I sought the permission, and also the letter of instruction, which I would have thought was a fairly ‑ ‑ ‑

PN209

VICE PRESIDENT HATCHER: Which was directed to KPMG for the preparation of the report.

PN210

MR BULL: Usually when you get an expert report you write to them and say, you know, "We want you to do a report. These are the things we want you to inquire into. We will pay you X amount of dollars", or whatever. So that, and the permission to us it in these proceedings.

PN211

VICE PRESIDENT HATCHER: Mr McDonald, there must be a letter that you can produce of instructions to KPMG for the preparation of this report.

PN212

MR McDONALD: There's not, your Honour.

PN213

VICE PRESIDENT HATCHER: There's no such letter?

PN214

MR McDONALD: As I'm instructed, that's correct.

PN215

VICE PRESIDENT HATCHER: So how could the report come about?

PN216

MR McDONALD: Presumably that was raised in discussions. There have been previous reports, and this report was really an update in relation to previous reports that have been done. The same report was relied upon in the penalty rates decision in relation to the profile of the club industry fairly extensively by that Full Bench, and the same issue wasn't raised in those proceedings.

PN217

VICE PRESIDENT HATCHER: I will admit it subject to any submissions about weight. And, Mr Bull, Mr McDonald response is there's no letter of instructions in existence.

PN218

MR BULL: Sorry?

PN219

VICE PRESIDENT HATCHER: Mr McDonald's response was there is no letter of instructions in existence.

*** ANTHONY SALVATORE TRIMARCHI XN MR MCDONALD

PN220

MR BULL: Yes, I heard that.

PN221

VICE PRESIDENT HATCHER: We will mark the statement of Anthony Trimarchi dated 18 April 2017 as exhibit 1 in the proceedings.

EXHIBIT #1 STATEMENT OF ANTHONY TRIMARCHI DATED 18/04/2017

CROSS-EXAMINATION BY MR BULL [11.52 AM]

PN222

MR BULL: Mr Trimarchi, you understand that this proceeding or application concerns substituted public holidays and the provision that relates to Christmas?‑‑‑Yes, I'm aware.

PN223

And you're the policy and government manager for Clubs?‑‑‑That's correct.

PN224

In what were you qualified? Do you have any degrees in any particular subject?‑‑‑I have a background in - I have a degree in political science and history from the University of Sydney. I am employed by Clubs New South Wales as well as Clubs Australia in that particular role.

PN225

Clubs New South Wales and Clubs Australia are two organisations that are different in name but actually work very closely together. Is that correct?‑‑‑That's correct. Clubs New South Wales is the peak member body which represents clubs in New South Wales; Clubs Australia is the peak federated body which represents the various state organisations on federal matters. So there is a Clubs Queensland, a Clubs Victoria, a Clubs ACT, et cetera, and they are all under the Clubs Australia banner. Clubs New South Wales, being the largest industry or state peak group, provides a lot of the admin, secretariat work, hence why I'm employed by them.

PN226

So in relation to all the other states, Clubs New South Wales is by far the largest part of your organisation. That's correct?‑‑‑It is fair to say. The club industry is predominantly an East Coast industry, given its size and operations, and Clubs New South Wales is the largest. So New South Wales is the largest of those states.

PN227

And then after there's Queensland?‑‑‑Queensland, Victoria; Tasmania and Western Australia are probably the smallest.

PN228

But in a sort of voting sense Clubs New South Wales has the majority vote, so to speak?‑‑‑From my understanding it's one member, one vote.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN229

MR McDONALD: Objection ‑ ‑ ‑

PN230

MR BULL: I withdraw the question.

PN231

You share offices? Clubs New South Wales and Clubs Australia share the same office. Is that correct?‑‑‑I believe the Clubs Australia office is in the ACT, but we do a lot of work out of Clubs New South Wales ‑ ‑ ‑

PN232

Right. But a lot of Clubs Australia people work at the Druitt Street office. Is that correct?‑‑‑That's correct.

PN233

They essentially share the same office space in Druitt Street. Is that correct?‑‑‑That's correct.

PN234

In relation to - this is the substitute public holidays. You understand that this particular entitlement only applies to award-reliant full‑time employees who are paid more than 50 per cent of the award rate?‑‑‑I have a broad understanding of the matter and of penalty rates and the like. My expertise is not in industrial law. I'm not engaged by Clubs Australia Industrial and I do no substantive work on this particular matter or penalty rated in general, but I have a general understanding.

PN235

You've made a statement which is supposed to be supportive of a claim to change a provision of the Clubs Award. Do you understand that?‑‑‑Yes.

PN236

And the principle part of that claim involves getting rid of substitute public holidays for full‑time employees. Do you understand that?‑‑‑I understand. I've made a statement to provide contextual information for our case. I'm not familiar with the intricacies of the award and the matter and the like, but I have a general understanding.

PN237

MR McDONALD: Objection. That's not the application that's being made to the Commission; no application to change substitute public holidays ‑ ‑ ‑

PN238

MR BULL: They're varying the clause that deals with substitute public holidays.

PN239

MR McDONALD: No, that's not our application.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN240

MR BULL: Perhaps my friend can explain what the application is, then, in relation to 34.

PN241

MR McDONALD: No change at all to substitute public holidays. If a public holiday is substituted, then it becomes a public holiday. What we're saying is if there are - for days that is not a public holiday or a substitute public holiday, people are rostered off, that they shouldn't get paid for those days. But certainly if there's a substitute public holiday, that would be observed in the normal way. We don't change that.

PN242

MR BULL: The application concerns when a full‑time employee is rostered off, the current award gives them a benefit. Do you understand that?‑‑‑Yes.

PN243

Your application is to get rid of all or part of that benefit. Do you understand that?

PN244

MR McDONALD: No. Again, we object. That's not the application. It's only of days that they wouldn't ordinarily ‑ ‑ ‑

PN245

VICE PRESIDENT HATCHER: Mr McDonald, it's a question. Mr Trimarchi can presumably answer it, unless you tell me he knows nothing about the claim.

PN246

MR McDONALD: Your Honour, in relation to the question that has been put, it pre-supposes that our application is doing something that it's not doing. And to that extent we say it's misleading to the witness. It's not a fair question.

PN247

VICE PRESIDENT HATCHER: How is it misleading?

PN248

MR McDONALD: Our claim is that you get - if you don't work on a day that's a public holiday, you still get it. What that question pre-supposed what that our application was different to that. Our application only seeks to change things in relation to days that you wouldn't ordinarily be rostered.

PN249

VICE PRESIDENT HATCHER: Currently even though you're not ordinarily rostered on a public holiday, you still get paid a day's pay.

PN250

MR McDONALD: Yes, your Honour.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN251

VICE PRESIDENT HATCHER: That's a benefit which full‑time employees currently enjoy. And you want to remove that benefit?

PN252

MR McDONALD: I'm sorry, if they're not - if they wouldn't have ordinarily worked that day, yes.

PN253

VICE PRESIDENT HATCHER: Yes.

PN254

That's clear, is it? You understand that, Mr Trimarchi?‑‑‑Yes, I understand that, yes.

PN255

Let's get on with it.

PN256

MR BULL: Right.

PN257

You understand that there's a capacity under the Act for full‑time employees to be exempted from that provision?‑‑‑I'm not familiar with the intricacies of the Act.

PN258

If I told you that there's an explicit provision in the award that says that if you're paid 50 per cent above the award rate this particular entitlement doesn't apply. Is that familiar to you? Does that ring a bell?‑‑‑I've not seen that particular provision.

PN259

Okay, so ‑ ‑ ‑

PN260

MR McDONALD: Objection ‑ ‑ ‑

PN261

MR BULL: No, he's answering questions. It's not ‑ ‑ ‑

PN262

MR McDONALD: They're presupposing a situation. There is no such provision.

PN263

MR BULL: Well, there is.

PN264

VICE PRESIDENT HATCHER: What's the clause number, Mr Bull?

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN265

MR BULL: 17.4 of the Clubs Award. I will check. I might just hand up a copy for the benefit of ‑ ‑ ‑

PN266

VICE PRESIDENT HATCHER: We only have an extract of the public holidays provision, Mr Bull, in front of us. We don't have clause 17.

PN267

MR BULL: What I was going to hand up is something from the Club Managers Association, which is - I will give you four copies.

PN268

VICE PRESIDENT HATCHER: I think Mr Cooper is handing me something Mr Bull

PN269

MR BULL: And there's a copy for Mr ‑ ‑ ‑

PN270

MR McDONALD: If it assists, in relation to coverage of United Voice, we say that there is no such exemption. In relation to Club Managers, if that's - he's referring to ‑ ‑ ‑

PN271

MR BULL: If you look at ‑ ‑ ‑

PN272

MR McDONALD: ‑ ‑ ‑ we accept there is ‑ ‑ ‑

PN273

MR BULL: ‑ ‑ ‑ clause 17.3, there are two tiers. So if - and if you look at the actual award there are two tiers.

PN274

VICE PRESIDENT HATCHER: So does that ‑ ‑ ‑

PN275

MR BULL: If you get to 20 per cent you lose higher duties, broken shifts, provisions in relation to ordinary hours of work, some recall to duty provisions, overtime ‑ ‑ ‑

PN276

VICE PRESIDENT HATCHER: That's 17.3(a) about managers.

PN277

MR BULL: Yes. Correct.

PN278

VICE PRESIDENT HATCHER: Mr McDonald says that doesn't apply to persons who are not managers.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN279

MR BULL: Not what?

PN280

VICE PRESIDENT HATCHER: Who are not managers.

PN281

MR BULL: These are managerial classifications, that's correct.

PN282

VICE PRESIDENT HATCHER: You've lost me, Mr Bull.

PN283

MR BULL: Beg your pardon?

PN284

VICE PRESIDENT HATCHER: You've lost me. This exemption provision, as far as I can tell, applies to club managers.

PN285

MR BULL: Correct.

PN286

VICE PRESIDENT HATCHER: And Mr McDonald's objection was that apart from club managers, there is no exemption provision ‑ ‑ ‑

PN287

MR BULL: Beg your pardon?

PN288

VICE PRESIDENT HATCHER: Mr McDonald's submission was that apart from club managers, there is no such exemption provision for persons covered by this award.

PN289

MR BULL: That's correct. But a substantial number of the people who are enjoying this entitlement are going to be club managers.

PN290

VICE PRESIDENT HATCHER: I think Mr McDonald's objection was that your question wasn't framed to restrict it to club managers.

PN291

MR BULL: I will reframe it, your Honour. I apologise if there was a misunderstanding.

PN292

I might just show you, Mr Trimarchi. You're the policy and government officer manager for Clubs Australia. Is that correct?‑‑‑That's correct.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN293

So matters that are important, matters that are significant in relation to the operation of clubs, that material comes across your desk. Is that correct?‑‑‑Broadly speaking the role encompasses me dealing with a range of policy issues, including alcohol, gaming, taxation, general economics. On industrial matters, they are dealt with by Clubs Australia Industrial in their offices. I am not one.

PN294

The sort of full‑time employees, there are more managerial employees who would be full‑time in the club industry. Is that correct?‑‑‑I'm unaware.

PN295

You don't know?‑‑‑No, I do not.

PN296

Okay. Would you be aware that there is a high level of casualisation in the club industry?‑‑‑I am aware from the census report that the number of casual employees has increased between 2011 and 2015.

PN297

Would you be aware that the club industry, particularly New South Wales because of a state differential part-time provision, had quite a high rate of part-time work?‑‑‑I'm not familiar with what is considered a high rate of part-time.

PN298

New South Wales, which is the largest sort of group in your federation, traditionally had a higher than average amount of part-time work because of the persistence of a transitional term from the old state award. Does that statement broadly - is something you can agree with?‑‑‑Without having seen the figures for the other states, I can't say.

PN299

Are you able to tell us how many people - a guesstimate - would be affected by the claim of your association in relation to 34.3? This is the basically getting rid of an entitlement where if you're a full‑time employee paid on the award, that you get a substitute day, or add some compensation for being rostered off on a public holiday. Can you tell us roughly how many people are affected by this particular matter?‑‑‑No, I cannot. I do not know.

PN300

Can you tell us, in money terms, what you think it's worth your members in terms of the club industry?‑‑‑I cannot. I know that the cost of running a club is quite high; however, the specific figures for this particular matter, no.

PN301

Okay?‑‑‑I do not know.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN302

As policy manager you've done significant research into what are the costs, and so forth, that causes clubs to get into distress. Is that correct?‑‑‑We're very familiar with the operating nature of a club and what makes them profitable and what puts them into distress; quite familiar; a range of factors.

PN303

The issue of substitute days off for compensation for being rostered off on a public holiday has never arisen as a matter which is a big one in terms of the viability of clubs in New South Wales or elsewhere. Is that correct?‑‑‑The cost of employing staff in a club is quite a large one. For many clubs it's a significant cost. I'm unfamiliar with this particular matter, what the cost would be, but certainly, however, the cost of employing people, for a lot of clubs, particularly small clubs, can be quite high.

PN304

I put it to you the fact that you can't put a number on the people affected; you can't put a number on, even roughly, the money that is involved; would suggest that this is inconsequential, that it doesn't really matter a great deal. I put that to you?‑‑‑No, I disagree with your view. Certainly, as I stated earlier, I'm not an employee of Clubs Australia Industrial. I am not familiar with the particulars of this case. My statement was to provide contextual information around the trading hours of clubs, not to go into the detail of this matter.

PN305

You've quoted a decision, and I think it's called ex parte Coulson Jones & Anor, and that's in paragraph 16 of your statement. Essentially you say that's authority for the proposition that a club has to open whenever the members want it to open?‑‑‑So it was certainly before my time. As I understand, the ex parte Coulson case in 1947 was somewhat of a test case to test whether or not club patrons had the right to enter their club and avail themselves of the amenities as they saw fit.

PN306

Clubs range from the small sailing club in Cremorne Point with no staff and members that open up the clubhouse and put the sausages on the barbecue and drink - you know, put $2 in a jam jar for beers, and so forth - to Panthers, which is a massive commercial structured club. You would agree with that?‑‑‑That's true. It's a very diverse industry.

PN307

One of the issues about this issue that clubs don't have any control over their trading hours is that some of the small clubs, the shack on the beach or whatever, the members can always turn the key, get in, open the fridge and have a beer or whatever. That's correct, isn't it?‑‑‑No, it is not correct. Certainly clubs, historically, in New South Wales had unrestricted trading hours ‑ ‑ ‑

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN308

Isn't what I said then just correct?‑‑‑ ‑ ‑ ‑ in that they could trade whenever they saw fit. Ultimately it's a business decision for clubs to be open when they choose to be. Many trade 24/7, some will trade earlier than that. It's a business sense. I'm not aware of any club member having keys to a club and going in after the club is closed, but they had the right to trade 24/7 outside of the prescribed hours in the Liquor Act, which at the time of that decision I understand restricted the sale of alcohol to 6 pm.

PN309

In relation to the entitlement to compensation for being rostered on a public holiday, have you done any work about rostering and - because an obvious way to avoid the detriment of the entitlement is to roster people on the public holiday. Have you done any work around that issue?‑‑‑I have not. I'm not familiar if Clubs Australia Industrial have. As I mentioned before, I'm not an officer of theirs.

PN310

So you're not aware whether any advice has been provided to your members about how to roster in such a manner as to minimise the impact of the entitlement?‑‑‑I'm unaware.

PN311

Clubs are generally not for profit. That's correct?‑‑‑Not generally. They all are not-for-profit member-based organisations, every single ‑ ‑ ‑

PN312

But some clubs pay some income tax, don't they?‑‑‑Income tax, but there are no dividends. The directors of the club are elected by the members. All surpluses after the club operated ‑ ‑ ‑

PN313

So the concept of profit is not strictly correct if there's a surplus ‑ ‑ ‑ ?‑‑‑They have to be profitable in order to exist and provide an amenity and provide social infrastructure. The difference being it's not a company in the sense dividends are paid, that people are profiting individually. All the money that a club makes must be reinvested in for the purpose of that club. Clubs are established for a specific purpose; whether that's to support veteran welfare with an RSL, or to provide golf or bowling facilities, the profits that a club make must be reinvested into that purpose.

PN314

You produced - and they will be in those bundles, perhaps if one of the associates could just grab them - there will be a bundle of documents which commences with 2016 hardship applications application form. Have you got that bundle, Mr Trimarchi?‑‑‑I'm unsure if it is in here somewhere.

PN315

Perhaps leave to approach the witness?‑‑‑Apologies. I haven't seen these documents myself ‑ ‑ ‑

PN316

VICE PRESIDENT HATCHER: Yes, you can approach the witness. Just identify the documents you want to take him to.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN317

MR BULL: That was produced in relation to a requisition I made asking whether - let me just clarify - in the past two years, whether you've assisted any clubs financially. I asked that in a requisition, which is a document which you might have seen, and you've produced this. This is basically a bundle of hardship assistance application forms. Is it comprehensive?‑‑‑I believe it is. I would also add that I have been overseas for the past five weeks, and these documents were compiled on my behalf without me having seen them before.

PN318

Are they documents that, you know, in your time as an employee of Clubs you might have sighted something like this before?‑‑‑I personally do not deal with any hardship application. It's dealt with, I believe, by our finance and admin department in the office.

PN319

I will put it to you these are applications for particular clubs that are having some level of management or financial problem. Would you agree with that?‑‑‑Without having seen them, they've applied for assistance, I would say yes, they're having difficulty.

PN320

What they're actually applying for is a waiver of the fees they pay to Clubs New South Wales or Clubs Australia. Would you agree with that proposition?‑‑‑I would. We would provide a range of services to our member clubs. Some of free of charge, for some there is a fee involved, and it is on any member to apply to have those fees reduced, yes.

PN321

I've gone through them. It seems to me pretty much every single application concerns a club which is having management problems, and not a single application seems to deal with the crippling burden of section 34.3(c) of the Clubs Award and having to provide remuneration for people not rostered on a public holiday. Do you want to go through them, or can you broadly agree with that statement?‑‑‑I can't agree without having seen the statements. There would be a range of factors as to why they've applied for financial hardship and assistance.

PN322

Almost uniformly the response appears to be, from the document, that Clubs Australia or Clubs New South Wales - it's a bit hard to tell - the response is to actually offer management training to clubs. Would you agree with that proposition?‑‑‑Clubs New South Wales, through the Club Directors Institute, provides training for both directors and managers around club governance and financial literacy.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN323

If you look at this bundle of applications as an indication of stress in the clubs industry, all these clubs have some reason to seek a waiver of these. The documents all seemed to indicate that they're having management problems, and the almost universal response of Clubs New South Wales is to offer management training. Do you think, as the policy manager, that would indicate that the reason why clubs get into trouble is because of, perhaps, poor management?‑‑‑There would be, again, a range of reasons.

PN324

Do you think - poor management is a pretty broad term - - -?‑‑‑That may be one of ‑ ‑ ‑

PN325

Do you think poor management is a reasonable summary of why clubs become distressed and have trouble managing their budget?

PN326

MR McDONALD: Objection. The question is predicated on what's in the application forms and the submissions of Mr Bull in relation to those. It has been said by the witness he hasn't seen the forms.

PN327

VICE PRESIDENT HATCHER: I don't think that question was predicated on that, so I will allow the question.

PN328

MR BULL: I'm just asking you whether - - -?‑‑‑Management, it's a very broad term.

PN329

Correct?‑‑‑There would be a range of factors as to why a club is in financial distress. It can be operating conditions, it can be competition with other venues in the area, it may be poor management, it may be poor direction from the board. There are a range of reasons why. Each club is quite unique in the position they find themselves in.

PN330

You've never had an application saying that, "The crippling effect of public holidays over the Christmas New Year period is forcing us to make an application to waive fees, plus quote have you?‑‑‑Again, I don't ‑ ‑ ‑

PN331

You don't know?‑‑‑ - - - deal with these applications.

PN332

You would agree that a substantial part of the club workforce are volunteers?‑‑‑No, a substantial part are paid employees. We also have a significant number of volunteers, including our directors.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN333

So a substantial part of the labour that makes clubs run, because they're community organisations, its volunteer labour. You would agree with that?‑‑‑There's a very strong sense of volunteerism in clubs. A lot of the volunteers who work for - provide services to clubs, some will be our directors, who are all volunteer directors; it can be a grounds person, it can be someone at a sporting club who cuts the oranges on a Saturday for junior sport; they're all considered volunteers. The nature of their work ‑ ‑ ‑

PN334

Would these generally be in smaller clubs?‑‑‑Absolutely. Certainly smaller clubs do not have the capacity or the scale to employ many people and they rely on volunteers to do certain things.

PN335

So whilst smaller clubs may have financial difficulties, they also commonly have more volunteers. Is that correct?‑‑‑It may be the case, it's individual clubs.

PN336

And volunteers obviously aren't covered by section 34 - be rostered day off public holiday provision, are they?‑‑‑No, I don't believe they are. However, I'm not familiar with the intricacies of the award.

PN337

I put to you they're not?‑‑‑Okay.

PN338

Because you don't pay them anything, so they're not even covered by the award because they're not employees. So that's a pool of essentially free labour that is in some ways quite unique to clubs. You would agree with that?‑‑‑It depends on the nature of their work. Again, directors are considered volunteers. They show up to one board meeting a month, they're all volunteers. I'm not familiar with the exact type of labour they would all be doing.

PN339

I've got no further questions for this witness.

PN340

VICE PRESIDENT HATCHER: Any re-examination, Mr McDonald?

PN341

MR McDONALD: Nothing arising, thank you, your Honour.

PN342

VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Trimarchi. You're excused and you're free to go.

<THE WITNESS WITHDREW [12.17 PM]

PN343

VICE PRESIDENT HATCHER: Who's next ‑ ‑ ‑

PN344

MR BULL: We now propose to call Mr Cassano.

*** ANTHONY SALVATORE TRIMARCHI XXN MR BULL

PN345

VICE PRESIDENT HATCHER: Is there a reason why the addresses are blacked out from these statements, Mr McDonald?

PN346

MR McDONALD: I'm not sure, your Honour. I will check that out.

PN347

MR BULL: I can hazard a guess, but ‑ ‑ ‑

PN348

VICE PRESIDENT HATCHER: They can give their business address, can't they?

PN349

MR McDONALD: Yes. I will ask the witness.

PN350

THE ASSOCIATE: Could you please state your full name and address.

PN351

MR CASSANO: Robert David Cassano, (address supplied).

<ROBERT DAVID CASSANO, SWORN [12.19 PM]

EXAMINATION-IN-CHIEF BY MR MCDONALD [12.19 PM]

PN352

MR McDONALD: Mr Cassano, you've made a statement for these proceedings?‑‑‑Yes, I have, thank you.

PN353

That statement is dated 27 April 2017?‑‑‑Yes, that's right.

PN354

And you have a copy of that in the witness box?‑‑‑I do.

PN355

If I could tender that statement.

PN356

MR BULL: No objection.

PN357

VICE PRESIDENT HATCHER: The statement of Robert Cassano dated 27 April 2017 will be marked exhibit 2.

EXHIBIT #2 STATEMENT OF ROBERT CASSANO DATED 27/04/2017

*** ROBERT DAVID CASSANO XN MR MCDONALD

PN358

MR BULL: Before I ask any questions of Mr Cassano, I should have - with the hardship applications, I should have probably tendered those from the previous witnesses.

PN359

VICE PRESIDENT HATCHER: Do you have copies to tender, Mr Bull?

PN360

MR BULL: There should be a copy in what was produced.

PN361

VICE PRESIDENT HATCHER: Have you shown those to Mr McDonald?

PN362

MR McDONALD: We have no objection, your Honour.

PN363

MR BULL: Maybe that could be exhibit 2 and the statement of ‑ ‑ ‑

PN364

VICE PRESIDENT HATCHER: Bundle of hardship assistance applications will be marked exhibit 3.

EXHIBIT #3 BUNDLE OF HARDSHIP ASSISTANCE APPLICATIONS

PN365

MR BULL: There's more, apparently.

PN366

MR McDONALD: Mr Cassano, in relation to - have you done any costings in relation to the claim?‑‑‑I have, yes.

PN367

Could you explain what those costings are, please?‑‑‑Yes. I just worked out, when taking into account this clause, the extra cost to the club for this clause, which would cost us on our bottom line, basically.

PN368

I see. Do you have a copy of those costings in the witness box with you?‑‑‑Yes, I have, yes.

PN369

What years did you do those costings for?‑‑‑I've done the one just - financial year finished June 2017, and I've done one projected for this financial year.

PN370

These costings are what your statement is based on?‑‑‑Yes, that's correct, yes.

*** ROBERT DAVID CASSANO XN MR MCDONALD

PN371

If I can tender those.

PN372

MR BULL: I've never seen them till just now, so.

PN373

VICE PRESIDENT HATCHER: When were these prepared, Mr Cassano?‑‑‑Friday afternoon.

PN374

How do you get to put them in now, Mr Bull?

PN375

MR McDONALD: Your Honour, they were - when they were provided to us they were forwarded straight on to the union on Friday afternoon, to Mr Bull

PN376

MR BULL: I've never seen them.

PN377

MR McDONALD: In any event, we say that they're relevant to the evidence and would, I suppose, assist the Bench in terms of fleshing out, perhaps, some of those issues in the statement.

PN378

VICE PRESIDENT HATCHER: I'm sure it's relevant, but as a matter of fairness, how do we get useful cross-examination about this?

PN379

MR McDONALD: Yes.

PN380

VICE PRESIDENT HATCHER: It might lead to a request for production of documents.

PN381

MR McDONALD: All of the - the request in relation to production of documents that were wide-ranging, which Mr Cassano has, of course, complied with.

PN382

VICE PRESIDENT HATCHER: No, about these costings.

PN383

MR McDONALD: Yes.

PN384

VICE PRESIDENT HATCHER: Mr Bull, what's your position about this?

*** ROBERT DAVID CASSANO XN MR MCDONALD

PN385

MR BULL: Having just seen them, they make no sense to me. My position is I can't really sensibly say anything about them, and on that basis it really shouldn't be, at this late stage, allowed into evidence. It shouldn't form part of the proceeding. That's my submission.

PN386

VICE PRESIDENT HATCHER: Mr McDonald, do you have any proposal about how this can be dealt with as a matter of fairness to United Voice?

PN387

MR McDONALD: We would certainly have no objection if they felt that they were at some disadvantage in relation to being - recalling him for cross-examination in relation to these figures. Apart from that, certainly as soon as we became aware of them, we did email them to the union to bring it to Mr Bull's attention, but it wasn't something we became aware of ‑ ‑ ‑

PN388

VICE PRESIDENT HATCHER: Notwithstanding the established email difficulty.

PN389

MR McDONALD: I'm sorry?

PN390

VICE PRESIDENT HATCHER: Notwithstanding the established email difficulty that you currently have.

PN391

MR McDONALD: Your Honour, in light of that, the emails have been sent directly from Clubs to avoid any question, so I certainly can evidence that.

PN392

VICE PRESIDENT HATCHER: Once again, Mr Bull didn't receive them. Mr Bull, when might you be in a position to cross-examine on these documents?

PN393

MR BULL: I can look at them over lunch. I don't even understand what they mean, so, so, you know, they're not clear to me on their face.

PN394

VICE PRESIDENT HATCHER: Mr McDonald, we will admit the documents, but subject to any reasonable request for Mr Cassano to be brought back for cross-examination. When that might be will be determined in due course.

PN395

MR McDONALD: If it please. If I could tender those documents, please.

PN396

VICE PRESIDENT HATCHER: I think to assist Mr Bull, you might ask Mr Cassano to go through to the document and explain what it's showing.

*** ROBERT DAVID CASSANO XN MR MCDONALD

PN397

MR McDONALD: I will do, yes. Would you like me to do that before I ‑ ‑ ‑

PN398

VICE PRESIDENT HATCHER: Let's tender the document first.

PN399

MR McDONALD: Thank you. There are two documents, double-sided; one which is headed Costing of Registered and Licensed Clubs Award Clause 34.3 Financial Year July 2016 to June 2017; and a second document, which is also double-sided, dealing with July 2017 to June 2018.

PN400

VICE PRESIDENT HATCHER: Costing document prepared by Mr Cassano for the period July 2016 to June 2017 will be marked exhibit 4.

EXHIBIT #4 COSTING DOCUMENT PREPARED BY ROBERT CASSANO FOR PERIOD JULY 2016 TO JUNE 2017

PN401

VICE PRESIDENT HATCHER: And projected costing document prepared by Mr Cassano for the period July 2017 to June 2018 will be marked exhibit 5.

EXHIBIT #5 PROJECTED COSTING DOCUMENT PREPARED BY ROBERT CASSANO FOR PERIOD JULY 2017 TO JUNE 2018

PN402

MR McDONALD: Mr Cassano, could I ask you to take us step by step how you've done these costings, please?‑‑‑Certainly. So if we look at the first document, which was July 2016 to 2017, we've gone through all the public holidays that fell in that year; and then underneath that, for each staff member for that day that we've had to provide extra payment to them when they've had their rostered day off fall on that public holiday. So if we look at the first one, is Labour Day, staff member Ael Dye, who's duty manager; John Soong, who's a duty manager; and Lyn Anderson, who's a full‑time bar gaming attendant. So Ael Dye, for example, on the Sunday, Monday, that's his normal rostered day off, so on the Labour Day Monday we had to pay an extra $238.92 for him in direct wages, as an example; and the same with John Soong and Lyn Anderson. So for Labour Day last year was a total of $639.52 as the direct cost for wages, plus then I've added the on-costs of approximately 18.95 per cent, which is superannuation, payroll tax and workers compensation. So for ‑ ‑ ‑

PN403

VICE PRESIDENT HATCHER: That's one day's cost?‑‑‑Correct.

PN404

For one employee?‑‑‑No, for the three employees.

PN405

For three?‑‑‑Yes.

*** ROBERT DAVID CASSANO XN MR MCDONALD

PN406

So each figure for each holiday, you've accumulated what's in the box for each holiday?‑‑‑Correct, yes.

PN407

And are these named employees, are they the only full‑time employees?‑‑‑Yes, they are - no, not the only full‑time employees, but the only full‑time employees which would be affected by this clause. Because we have some other employees, like myself as an example, who are on an overtime exemption, so we're not entitled to public holidays.

PN408

How many employees does the Ashfield Catholic and Community Club have in total?‑‑‑36 all up, vast majority being casual employees. We have some permanent part-time employees as well, we have three of those, but they're not covered by this clause as well.

PN409

MR BULL: I think I understand them now, so I don't know whether it's necessary to go through both in the same manner.

PN410

MR McDONALD: Did you want to continue with your explanation, Mr Cassano?‑‑‑I suppose if we've got the example from the first one, we can just go to the overall summary. So for 2016-17 it was a seven and a half thousand dollars extra cost to the club in wages and on-costs.

PN411

Yes?‑‑‑And the next one is 2017-18, which is the next exhibit, the total cost being four and a half thousand dollars, so a lot less. So what that tells us is it depends greatly on when the public holiday actually falls to whether we have the extra cost or whether the employee gets the extra payment or not.

PN412

Thank you. I have nothing further.

CROSS-EXAMINATION BY MR BULL [12.29 PM]

PN413

MR BULL: So the club is open on these public holidays?‑‑‑Yes. Every one, except for Good Friday. We are a Catholic club.

PN414

If I could just get access to the produced documents. Leave to approach the witness?

PN415

VICE PRESIDENT HATCHER: Yes, you have leave.

*** ROBERT DAVID CASSANO XXN MR BULL

PN416

MR BULL: I might just help you with a few bits and pieces. The club turned over, this is last year, over $5 million in poker machine revenue, is that correct?‑‑‑Yes, that's right, yes.

PN417

The poker machines are up and running whenever the club is open, is that correct?‑‑‑Yes, that's right.

PN418

The revenue from poker machines is not uniform throughout the week?‑‑‑I don't know what you mean by that.

PN419

Do you get as much money from the poker machines on Monday as you do on the Friday?‑‑‑One Monday we might have more than the Friday, or the next week it might be the opposite, so there's no uniformity there. There's nothing to suggest that any day is a busier day than any other day.

PN420

Well, a public holiday, when most of the workforce isn't working, and is at leisure to attend your club, poker machine revenues and other revenues increased?‑‑‑No.

PN421

So there is less poker machine revenue on a public holiday?‑‑‑I can't generalise.

PN422

Is it possible that there might be more?‑‑‑More on a public holiday?

PN423

Well Labour Day, would there be more poker machine revenue on Labour Day?‑‑‑Without having a look at the figures I can't tell you.

PN424

Okay. Well, it's a critical part of the revenue of your club. Last year it was $5 million, the year before it was $4.7 million-odd. It's been over $4 million since 2012. Surely you have some idea whether particular days or times of the year are better for you? You've no idea, is that what you're saying?‑‑‑No, I don't say I haven't any idea, I'm saying there's no uniformity. There's no pattern I can say, "Well, Boxing Day is a busier day than any other day."

PN425

Not taking into account leap years, if I average out the revenue from last year, which is in the spreadsheet which you provided, which will be shortly tendered, if I divide that by 365 your club's taking about $13,755 a day in poker machine revenue, is that correct?‑‑‑Yes, that's right.

PN426

Now, there's some cost associated with that, isn't there?‑‑‑Yes, of course.

*** ROBERT DAVID CASSANO XXN MR BULL

PN427

There's licence fees and so forth?‑‑‑Taxes.

PN428

Taxes, you've got to pay tax on it?‑‑‑Yes.

PN429

But there's still a significant margin which is pure profit, is that correct?‑‑‑Yes, definitely, 75 per cent of our revenue comes from poker machine revenues.

PN430

I put it to you, on some of these days, these public holidays, that you would have significantly increased revenues from poker machines and other forms of gambling. I put that to you?‑‑‑I don't agree with that. We work in a an area which - right next to a railway station, so our busier days are actually passing traffic. We're not a destination as opposed to passing trade so actually pubic holidays are probably not the busiest days.

PN431

I don't know, in terms of the pay cycle and when people get paid their pensions, is that a busier time?‑‑‑No.

PN432

Really? So there's no noticeable upswing in trade when people get paid or when the pensions and so forth get paid?‑‑‑No.

PN433

VICE PRESIDENT HATCHER: So you're open on Christmas Day?‑‑‑Yes, we are, yes.

PN434

MR BULL: And the poker machines are open too?‑‑‑Yes, they are.

PN435

Your club is a not for profit, but because of it's quite extensive activities it does pay tax on some of its activities, is that correct?‑‑‑Gaming revenue it does, yes.

PN436

It also pays tax on other activities, doesn't it, because there's a pretty mutuality applied, in relation to the assessment of your taxation burden?‑‑‑Yes, that's right, yes.

PN437

Are you familiar with that?‑‑‑Yes, I am.

PN438

So it pays taxes on other things. Because to the world - - -?‑‑‑Well, we don't pay taxes on members' income.

*** ROBERT DAVID CASSANO XXN MR BULL

PN439

Yes, but the theory is that revenues from members are not taxable?‑‑‑That's correct, yes.

PN440

But other revenue is. One of the problems with the café is that there's no sign in so, prima facie, all that revenue would be taxable, is that correct?‑‑‑Yes, that's right, except we make a loss there.

PN441

Yes. Because you can't, among other things, capture that within the not-for-profit tax exemption, is that correct?‑‑‑Yes, that's right, yes.

PN442

All right. But despite these hardships that the Ashfield Catholic Club has endured over the years, you've made a healthy surplus for the last five years, that's correct?‑‑‑Yes, that's right, yes.

PN443

So in 2012 you made a surplus of about $201,985, does that sound about right?‑‑‑Yes, that's right, yes.

PN444

In 2013 you made a surplus of $446,816?‑‑‑Yes.

PN445

In 2014 you made a very tasty surplus of $613,711, is that correct?‑‑‑Yes, that's right, yes.

PN446

In 2015 you made a surplus of $647,447, is that correct?‑‑‑Without checking, yes.

PN447

And last year you made a surplus of $397,766, is that correct?‑‑‑Yes, that's right.

PN448

VICE PRESIDENT HATCHER: What's that figure, Mr Bull?

PN449

MR BULL: Last year was $397,766. Now, it appears, at least in 2015, that you reinvested most of that surplus into purchasing more poker machines, is that correct?‑‑‑No, not necessarily, no.

PN450

Well, in the financial report, for the year ending 30 June 2015, have you got that in front of you?‑‑‑Yes.

*** ROBERT DAVID CASSANO XXN MR BULL

PN451

If you want to go to page 27, this is a list of property, plant and equipment, there's a heading all to itself, Poker Machines, then it talks about additions. In 2015 you outlaid $574,697 on additions, I assume that's additions to poker machines?‑‑‑That would be purchase of new poker machines to replace the old ones, yes.

PN452

So you invested the surplus into basically buying more poker machines?‑‑‑No, replacing poker machines.

PN453

All right. You've done that in past years too?‑‑‑Yes, every year, yes.

PN454

So that's the main place where - because gaming is such a profitable part of your overall profile, that's the main place where the surplus has gone, is that correct, in terms of the maintenance of the gaming function?‑‑‑No, not necessarily. We've also upgraded all the amenities in the club.

PN455

Okay. So in the year ending 30 June 2016 there was a profit of $397,000-odd, you'd agree that the costing for remunerating full-time employees, not rostered on, of about $7,500 is relatively inconsequential in terms of the surplus that your club made?‑‑‑I'd agree with that, yes.

PN456

Likewise you've actually managed to get it down this year and are you expecting to make another healthy profit this year?‑‑‑Well, this one that I've given you, the audited figures are not out yet, but for that $7,500 there is no corresponding financial report yet, but, yes, we're looking at doing a very similar amount to last year, surplus.

PN457

So it's actually become less consequential or more inconsequential, in terms of your labour costs?‑‑‑Less consequential but still significant.

PN458

But it makes no significance, in terms of your surplus, because your surplus is so healthy?‑‑‑Not the overall surplus, no.

PN459

VICE PRESIDENT HATCHER: Mr Cassano, the projection for next year's costs is significantly lower than for the last years, is that just a function of when the holidays fall in the calendar?‑‑‑That's right, yes, and when the employee's normal rostered days off are, yes.

PN460

Thank you.

PN461

MR BULL: Just a, perhaps, follow through on that question. It's a conjunction of rostering and when the holidays fall, because if they're rostered on the entitlement is not relevant?‑‑‑That's correct, yes.

*** ROBERT DAVID CASSANO XXN MR BULL

PN462

It's a jigsaw. Some years, depending on the roster - do you deliberately structure rosters in a manner to try and roster full-time employees on when public holidays fall?‑‑‑No, we try not to change their days off.

PN463

Okay. So that would indicate - the fact that it hasn't formed a conscious part of rostering would mean that it's not a particularly significant cost consideration in managers who draw up the roster?‑‑‑Well, overall we roster in that was because we try and look after our staff and give them uniformity of when their rostered days off are going to be. Of course, they're on a four week roster cycle so the days that change could change from week to week, but we try to keep it in uniformity for them, so they have some sense of when their days are going to be off normally.

PN464

According to your statement, you've got - - -

PN465

VICE PRESIDENT HATCHER: Just so I understand that answer, their rostered days off would change, over the course of a roster cycle?‑‑‑That's correct, yes.

PN466

Do they work a 7.6 hour day?‑‑‑The two duty managers work a 38 hour week but not necessarily 7.6, some might be 8 hours and some might be 7 hours, because we trade for a 21 hours a day so there's three shifts that we have to cover, but one of the shifts is shorter because it doesn't take up the whole 24 hours. But over the four week roster, yes, they work 38 hour weeks.

PN467

Thank you.

PN468

MR BULL: According to your statement when it was signed, which was 27 April, there was 36 employees, paragraph 6 of your statement. You had 36 employees, three part-timers and eight full-timers?‑‑‑Yes.

PN469

Of the full-timers, they're the ones that are relevant for this entitlement, you say, at 16, that:

PN470

A few of the full-time employees are engaged under an exemption arrangement.

PN471

An exemption rate, that captures public holidays?‑‑‑Yes.

PN472

That means they're paid 50 per cent in excess?‑‑‑Yes, that's right.

*** ROBERT DAVID CASSANO XXN MR BULL

PN473

When you say "a few", how many of the full-time employees are exempt employees?‑‑‑Two.

PN474

So that leaves six, does it?‑‑‑Yes, that's right, yes.

PN475

Who are the six that are full-time employees and who are captured by this entitlement?‑‑‑Okay, there's Ael Dye(?).

PN476

Just tell me what they do?‑‑‑There's two duty managers, who are on an award flexibility agreement, so they work straight 38 hours per week. So there's two duty - - -

PN477

What sort of money are they on?‑‑‑Well, you can see the costing there, it's $238.92. I can't tell you the award.

PN478

Can I just show you - - -

PN479

VICE PRESIDENT HATCHER: Apart from the exempted persons, are they paid award rates or something above the award?‑‑‑They're paid above award rates, yes.

PN480

MR BULL: But less than 20 per cent above?‑‑‑No, more than 20 per cent above.

PN481

But they're not managers?‑‑‑Yes, they are.

PN482

But they're not the 50 per cent, sorry, I withdraw that. In order to get exempt from this entitlement you need to be 50 per cent above the award?‑‑‑Yes, that's correct.

PN483

So there's two duty managers?‑‑‑Yes.

PN484

And they're paid, what, 30 per cent above the award, can you say, roughly?‑‑‑Between 20 and 30. I can't tell you off - but, yes, between 20 and 30. Closer to 30 per cent.

PN485

Then there's who else?‑‑‑There's Lyn Anderson, who's a full-time bar/gaming attendant.

*** ROBERT DAVID CASSANO XXN MR BULL

PN486

Is Lyn paid on the award or a bit above it?‑‑‑Yes, on the award, level 3.

PN487

So she'd be really $50,000 a year?‑‑‑Yes, max. I think the award rate is $49,838 for level 3.

PN488

Right, so around $50,000 a year?‑‑‑Yes, but she does work Saturdays so she gets paid extra.

PN489

All right, so we've got three more, who else?‑‑‑There's Mark Cooley(?), who's an assistant operations manager and he would be - he's close to $55,000.

PN490

All right, he's paid on the award?‑‑‑No, above award rates.

PN491

The 20 to 30 per cent above?‑‑‑At least 30.

PN492

VICE PRESIDENT HATCHER: You've done these costings based on their actual rate of pay, not the award rate of pay?‑‑‑Yes, that's correct. No, their actual pay.

PN493

MR BULL: So I think there's four, who are the other two?‑‑‑There's Sonu(?), who's a - - -

PN494

Who, sorry?‑‑‑The bottom one on that list, Sonu, who's a cook in the café, and he's full-time.

PN495

What's Sonu paid, roughly?‑‑‑As a level 3 in the award, I'm pretty sure, possibly level 4.

PN496

You said there was six?‑‑‑Yes, I don't know why, there's one missing there. I'm trying to think of who it is. We've had somebody go from full-time to permanent part-time, so that may be it.

PN497

So there may have only been five people affected?‑‑‑Yes. There is definitely only five people that are affected by this.

PN498

In relation to the bistro, you essentially outsource that problem by getting a contractor to deal with it, is that correct?‑‑‑I don't know if it's a problem but, yes, we do have contract caterers in our bistro in the club, yes.

*** ROBERT DAVID CASSANO XXN MR BULL

PN499

They run it, if they make a profit that's a matter for them and so forth?‑‑‑Yes, that's correct. They pay a rental fee to us, yes.

PN500

The issue of whether or not the bistro breaks even, or whatever, is not really of your concern?‑‑‑No.

PN501

What you're getting is the licence fee from the licensee and you've essentially dealt with the issue of managing the bistro by getting someone else to do it?‑‑‑Yes, that's right, yes.

PN502

And you're aware that because of the coverage of this particular award, they have to basically, or should apply the terms and conditions of the award, because it's on the premises of a licenced club?‑‑‑Yes.

PN503

You're aware of that?‑‑‑Yes, yes, absolutely, yes.

PN504

So they have the cost structure, you don't have to deal with - but for the fact that you don't have to deal with it, it's their problem. Okay. So in relation to the café, the café is on the street. For all intents and purposes it looks like a café, it's not subject to the sign in that's a common feature of clubs, is that correct?‑‑‑No, that's correct, yes. We run it as a separate business, or try to.

PN505

And it makes a small profit. I withdraw that. It makes a small loss?‑‑‑It makes a loss, yes.

PN506

But it's not a significant loss?‑‑‑No. It was significant when we were open on Sundays and public holidays, but we had to cut that because it was just costing us too much money.

PN507

All right. But, obviously, having some availability of food is an important part of running a business, such as the Ashfield Catholic Club, is that correct?‑‑‑Yes, that's right. Yes, it's important, yes.

PN508

Obviously you serve drinks and so forth, but people also want to eat?‑‑‑Yes.

PN509

If people settle down and have a meal and a few drinks they're likely to stay longer in the club?‑‑‑Yes.

*** ROBERT DAVID CASSANO XXN MR BULL

PN510

The people who play the poker machines and the other gaming facilities, they obviously eat and drink?‑‑‑They obviously do, yes.

PN511

So there's some business sense in having food and beverages available because if your most profitable line item is poker machines, if it's going to attract more people to play the poker machines, even though you're making a small loss in this facility, as an overall strategy it makes good sense, would you agree with that?‑‑‑Yes, although I've never, ever found any correlation in our club between food and beverage revenue and gaming revenue, there's never been any correlation in our club, but in the industry, yes, that's what they do say.

PN512

Right. Well, if you didn't have food you'd have less people playing the pokies, wouldn't you?‑‑‑No.

PN513

You don't believe that's the case?‑‑‑No.

PN514

But the small loss the café makes, it's around, what, $29,000 a year, that was last year?‑‑‑Yes, that was last year, yes.

PN515

That's a very manageable loss, in terms of the total revenues of the Ashfield Catholic Club, you'd agree with that?‑‑‑Overall, yes, but I mean how long we maintain that, that's a position for the board and for myself to make that decision. We're trying to get it down as possible but, like I said, with the extra expenses with our award, when we're trying to compete with other venues in the areas which don't have the same stringent conditions as we do to run.

PN516

The staff in the café are directly engaged by the Ashfield Catholic Club?‑‑‑Yes, that's right, yes.

PN517

None of them are full-time employees?‑‑‑Yes, they are, yes.

PN518

Who's a full-time - - -?‑‑‑The cook, Sonu, I thought I gave you that one, yes.

PN519

Okay, so there's one cook who works in that café?‑‑‑Yes. Of the full-time, yes.

PN520

So of the four, only one works in the café. Does Sonu work elsewhere?‑‑‑I think he may, yes, do casual work, I'm not too sure.

*** ROBERT DAVID CASSANO XXN MR BULL

PN521

As in another establishment or elsewhere in the Ashfield Catholic Club?‑‑‑Not anywhere in the Catholic Club, no.

PN522

Okay. What are the contributions to the community which the Ashfield Catholic Club makes?‑‑‑Contributions to the community? Well, we obviously give our club grants commitment that we do, so we generally, at least, to our local community, donations of at least $120,000 last year, to our local community groups.

PN523

Which groups?‑‑‑Well, Mission Australia get $40,000 a year from us for gambling services, problem gambling services, for example, they're one.

PN524

Is that a condition of your licence?‑‑‑It is, yes.

PN525

All right. So it's not really a contribution, it's a condition of your licence?‑‑‑We're also contributing - - -

PN526

You said you made contributions to a charity which deals with - - -?‑‑‑Problem gambling, yes.

PN527

- - - problem gambling, that's actually a condition of your licence to have the poker machines, isn't it?‑‑‑Yes. Well, that expires very shortly.

PN528

So it's not a voluntary thing, it's a condition which you have to make to be allowed to have these machines?‑‑‑Yes, that's right, yes. But there is a number, obviously, the other organisations - do you want to know all the organisations that we do?

PN529

Yes, please tell?‑‑‑Well, FRANS for example, that we give $5000 to look after people with disabilities. There's a lot of - all our sub-clubs, for category 2, that we look after, we donate to. Yes, the list is endless.

PN530

Okay. I've got no further questions.

PN531

VICE PRESIDENT HATCHER: Any re-examination, Mr McDonald?

RE-EXAMINATION BY MR MCDONALD [12.52 PM]

*** ROBERT DAVID CASSANO RXN MR MCDONALD

PN532

MR McDONALD: Just brief, your Honour. In relation to the last point, the amounts that you provide to the community, you mentioned the Mission Australia and then I didn't quite catch the next one?‑‑‑FRANS, or they're called Participate Australia now, I think. They're just one of the local charities that we donate to.

PN533

Are there others?‑‑‑Yes, the Ashfield Pirates Soccer Club we've started to sponsor this year, that's another one that we've started this year. Let me try and think, the Mary McKillop Foundation, which is part of St Vincent de Paul, the John Burns School, which is a school in Lewisham which looks after wayward children and try and get them through school. We donate a significant amount to them each year. The local parishes and the schools, we donate up to $5000 each per year at least. So they're just a number of ones that we do. The club was set up originally by the parish, the Catholic parish in Ashfield, so we still have close affiliations with them and they're part of the organisations that we donate to.

PN534

VICE PRESIDENT HATCHER: You were asked about the contractors in the bistro and whether it was of any concern to you as to how they went. Does it impact upon the club as to how the contractor in the bistro is fairing?‑‑‑Certainly, yes. I mean we need the contractor to be as successful as possible for themselves and we're always - under our contract they're not permitted to change the costings of the menu, for example, the prices of the menu, without our authority. That's obviously so that they don't increase the prices too much for members and so that we're not affected by the amount of people that go there.

PN535

So, as far as you know, is the bistro contractor operating profitably under those conditions?‑‑‑I believe he is, yes. He has other venues as well though that he provides catering services to.

PN536

Is there any assistance the club would provide to the contractor?‑‑‑Yes, we subsidise them up to about $100,000 a year, I suppose, at least.

PN537

So subsidise in what sense?‑‑‑Power, gas, electricity, entertainment that we put up in the bistro area to attract people. We've spent quite a little bit of money on - quite a lot of money a couple of years ago on a children - family area, where there's family equipment and that sort of stuff. We don't directly benefit from that, the caterers directly benefit, but we do benefit from drink sales, obviously, et cetera, and looking after our members and giving them the amenities and facilities.

PN538

Thank you.

PN539

MR McDONALD: Thank you, Mr Cassano, nothing further.

*** ROBERT DAVID CASSANO RXN MR MCDONALD

PN540

VICE PRESIDENT HATCHER: Thank you, Mr Cassano, you're excused, you're now free to go.

<THE WITNESS WITHDREW [12.56 PM]

PN541

MR BULL: There's just some matters to be tendered, Mr Cassano doesn't need to be here. Just the gambling turnover, which is a one page document, can that be tendered? It should be on the table.

PN542

VICE PRESIDENT HATCHER: I've probably got the numbers of record so I'm not sure it's necessary. Mr Bull, we might take the luncheon adjournment, can you go through the documents, identify what documents you want to tender and just hand them up.

PN543

MR BULL: Yes, one bit of paper, the financial reports, maybe that could be tendered.

PN544

VICE PRESIDENT HATCHER: The document headed Summary of Gaming Revenue 2012-2016 at Club Ashfield will be marked exhibit 6.

EXHIBIT #6 SUMMARY OF GAMING REVENUE 2012-2016 AT CLUB ASHFIELD

PN545

VICE PRESIDENT HATCHER: We will now adjourn and resume at 2 pm.

LUNCHEON ADJOURNMENT [12.57 PM]

RESUMED [2.02 PM]

PN546

MR BULL: There's a matter I might raise, as a courtesy to my friend, he's informed me that Norman Nasser is not here but can come in. Mr Nasser is the financial controller of the Castle Hill Country Club, so I suppose if he gets in his car he can be in here shortly. I can indicate that I was going to - - -

PN547

VICE PRESIDENT HATCHER: Isn't he programmed for today?

PN548

MR BULL: He is.

PN549

VICE PRESIDENT HATCHER: Why isn't he here?

*** ROBERT DAVID CASSANO RXN MR MCDONALD

PN550

MR BULL: I've got no idea. He's got a tendency not to comply with notices, it appears. I was going to indicate that he was the subject of a notice and I've also got an affidavit of service, which indicates that he was served with the notice on 10 July. I understand that nothing has been produced in relation to the notice. Some material may not be in his possession, but I would have thought financial records and that sort of material would be in his possession. If he did attend and my friend sought to rely on his statement, I was going to object to the Commission receiving any evidence from him, on the basis that he's failed, contemptuously, to comply with the notice served on him, on its face, and therefore he should just not be heard from. That might alleviate the need for him to drive in from Castle Hill. I'm happy to hand up the notice and the affidavit of service, which was required because there was a lack of cooperation in terms of the legal representative of the claimant accepting service on behalf of their witnesses.

PN551

VICE PRESIDENT HATCHER: Mr McDonald, why isn't Mr Nasser here?

PN552

MR McDONALD: Your Honour, we won't seek to rely on his evidence. There had been an order in relation to him, there were submissions made. The order was made in respect of him personally, the club itself, and he was asked to produce information about third party monies from sponsors and that sort of thing, and the detail of that. So the club was opposed to it, on the basis that they thought it was commercial-in-confidence, any sort of third party sponsors. That appears to have been an issue for them so therefore the documents haven't been produced. In those circumstances I won't say that we can rely upon the statement.

PN553

VICE PRESIDENT HATCHER: All right, that's easy. So I'll return those documents in those circumstances. So the one remaining witness for today is Mr Bale, is that right?

PN554

MR McDONALD: Yes, your Honour, if I could call Mr Bale.

PN555

THE ASSOCIATE: Could you please state your full name and address?

PN556

MR BALE: James Alexander Bale, (address supplied).

<JAMES ALEXANDER BALE, SWORN [2.06 PM]

EXAMINATION-IN-CHIEF BY MR MCDONALD [2.06 PM]

PN557

MR McDONALD: Mr Bale, could you state your full name and address for the record, please?‑‑‑James Alexander Bale, (address supplied).

*** JAMES ALEXANDER BALE XN MR MCDONALD

PN558

Mr Bale, you've made a statement for these proceedings?‑‑‑Yes, I did.

PN559

Do you have a copy of that statement with you?‑‑‑Yes, I do.

PN560

Is that true and correct, to the best of your knowledge and belief?‑‑‑Yes, it is.

PN561

MR BULL: No objection.

PN562

VICE PRESIDENT HATCHER: The statement of James Bale, dated 18 April 2017 will be marked exhibit 7.

EXHIBIT #7 WITNESS STATEMENT OF JAMES BALE DATED 18/04/2017

PN563

MR McDONALD: In relation to paragraph 10 of your statement were there any other matters that you wished to raise, in relation to the membership profile of the club?‑‑‑The only thing that I really wanted to raise in that respect was that the way that it's worded it just says that we do not attract tourism, which is correct, but we do have members that do play on our course, we do have retirees, we do have lady members, we do have male members and I just didn't want to give the impression that we're not interested in it, but we've got to allow our members to play on our course as well in doing that. We also look after a large amount of tradies, that we call it, we're between three different clubs in the small township, and most of our membership is probably blue collar worker. We do have a mix of other ones, but the only days they can really get out and play are probably weekends and public holidays.

PN564

Mr Bale, have you looked at the incidents where this issue will arise, in relation to clause 34.3, about the additional days?‑‑‑Yes. Look, our biggest problem that we have is that on days where 34.3 arises is days where we - it basically affects our full-time employees. For example, I have two groundsmen that work Monday to Friday. I don't get them to work weekends, if they do they work on a Saturday morning, with the award, which pays the normal rate. Public holidays I normally give them the day off. Under 34.3, with the groundsmen, for example, on an Easter Sunday, I have to pay them another day's pay for already having the day off. I give them the Friday, I give them the Monday off and then I also give them the Sunday off anyway but then they also get paid for having that day off, which they'd normally get off anyway, which acts as an extra burden to the club.

PN565

VICE PRESIDENT HATCHER: How many full-time employees does the club have, which are affected by clause 34?‑‑‑Four, your Honour.

*** JAMES ALEXANDER BALE XN MR MCDONALD

PN566

How many employees, in total, are there?‑‑‑We've got seven full-time employees and anywhere between 16 and 19 all up.

PN567

Thank you.

PN568

MR McDONALD: Mr Bale, did you look at some examples in relation to those - - -

PN569

MR BULL: I haven't objected to this, but there was an auditor file in the evidence-in-chief, that opportunity was available. This leading of further evidence isn't appropriate.

PN570

VICE PRESIDENT HATCHER: This is new evidence, is it?

PN571

MR McDONALD: I don't take it any further, your Honour.

PN572

VICE PRESIDENT HATCHER: Thank you. Mr Bull?

CROSS-EXAMINATION BY MR BULL [2.10 PM]

PN573

MR BULL: Just in relation to the two groundsmen, they're full-time employees, are they paid on the award?‑‑‑Yes.

PN574

So roughly what sort of - and they're full-time, obviously, so are they annualised salaries or are they just paid on the award?‑‑‑Paid on the award.

PN575

So can you tell us what the base rate is?‑‑‑Off the top of my head, no.

PN576

All right. So you say you've got four full-time employees who are basically subject to this 34.3 clause?‑‑‑Yes.

PN577

Two of them are the groundsmen? What are the other two?‑‑‑One's a function coordinator and the other one's a bar superintendent.

PN578

So the head barman. Now, what's the function coordinator, what is that person paid?‑‑‑Level 4.

*** JAMES ALEXANDER BALE XXN MR BULL

PN579

What does that work out to be?‑‑‑I think it's about - - -

PN580

So it's a level 4, which is $746.20, that's the base rate?‑‑‑I'm not quite sure on that. I think it's 20 something dollars an hour. They've only just changed the amounts.

PN581

This is an old copy of the award, so you're probably right. It's $19.64 last year, so it'd be about $20 an hour?‑‑‑I was going to say more than that. So just dealing with the level 4, that person, if they're just working 9 to 5 and they're just getting the base rate, that's $40,000 a year. Do you think that's a significant salary?‑‑‑For the industry, I assume so.

PN582

So it's excessive to then pay the function coordinator, who's receiving a little over $40,000 a year, an extra day when she's not rostered on to a public holiday?‑‑‑It's not about excessive.

PN583

Well, you don't think it's a good thing?‑‑‑I just - my view is that if it's not - if it's something that's not in all the awards, why should it be in this one, coming from outside the industry.

PN584

Yes, but this lady is paid $40,000 a year?‑‑‑She's got the job.

PN585

All right. So the horticultural - do you know what level the groundsmen are?‑‑‑Level 3, to my best.

PN586

There doesn't seem to be a level 3 in the award?‑‑‑Level 2 it must be then, sorry.

PN587

Level 2, all right.

PN588

VICE PRESIDENT HATCHER: I think they're level 4, Mr Bull.

PN589

MR BULL: I beg your pardon?

PN590

VICE PRESIDENT HATCHER: I think the groundsman is a level 4.

PN591

THE WITNESS: Depending in whether they're a tradesperson or not.

*** JAMES ALEXANDER BALE XXN MR BULL

PN592

MR BULL: But the groundsperson would be earning about $50,000 a year?‑‑‑No.

PN593

More than that?‑‑‑Less than that.

PN594

Less than that?‑‑‑Yes. I think they're level 2.

PN595

Level 2, okay. Once again, they're not highly paid people, are they?‑‑‑They're paid for the job they do, yes.

PN596

VICE PRESIDENT HATCHER: So does the bar superintendent work Monday to Friday as well?‑‑‑No, your Honour.

PN597

What do they work?‑‑‑Depending on what their availability is, normally they work Wednesday night, Thursday night, Friday, Saturday and some Sundays.

PN598

MR BULL: So the bar supervisor would be obviously getting more than the base rate because they're bar supervisory working some penalty rates hours?‑‑‑Yes.

PN599

VICE PRESIDENT HATCHER: And the function coordinator?‑‑‑The same, they have Mondays and Tuesdays off.

PN600

MR BULL: Now, the function coordinator is more a 9 to 5er, is that correct?‑‑‑No.

PN601

Is it your practice, do you sometimes roster these four full-time employees on public holidays, to avoid paying this loading?‑‑‑No. Since I've been there, and that's since January, I've been doing the bar shifts myself, only because we're a small club and the restaurant's been closed during those periods anyway, so we're just paying them the extra dollars for the days.

PN602

Now, the Wentworth, it's a small country golf club, that's perhaps the best way to describe yourself, is that correct?‑‑‑Yes.

PN603

Do you own your own land?‑‑‑The land where the club house is in is owned by us, the course is Crown land, under trust.

PN604

Do you have to pay a lease fee for that?‑‑‑I think it's a peppercorn lease.

*** JAMES ALEXANDER BALE XXN MR BULL

PN605

So you get the benefit of the Crown land and you don't have to pay a great deal for it. Now, have you got your statement in front of you?‑‑‑Yes, I have.

PN606

At section 6 you list a number of, essentially, competitors?‑‑‑Yes.

PN607

You'd agree with me that they're all registered and licenced clubs?‑‑‑Yes.

PN608

So they're competing against you, under the same terms and conditions that you have, basically?‑‑‑Some are different. Like there's a bowling club and a golf club. There's three golf clubs in town, one bowling club, the Waratahs is a soccer club and Orange Ex-Services Club is one the major club in town.

PN609

But they're complying with their obligations. Unless they've got an agreement, they'll be covered by the Clubs Award, is that correct?‑‑‑Yes.

PN610

So they would have the same problem about having to compensate people for public holidays as you?‑‑‑Yes.

PN611

So it's a level playing field, isn't it?‑‑‑Yes.

PN612

You mentioned, at paragraph 29, that's page 5 of your statement, that a lot of restaurants in Orange are not open on public holidays?‑‑‑Correct.

PN613

Does that mean that your bistro or your food facility, you're more profitable on public holidays because there are less options around the district, in terms of places to go and things to do?‑‑‑No.

PN614

So the restaurants are all closed but that doesn't affect the numbers through your door, on a public holiday?‑‑‑Because of where we're located, we're five kilometres out of town, it's seen as a stigma for people to come out and visit on public holidays. And if we do have, like we are open for the bar area, the number of requests that we get on those public holidays is very limited, compared to the cost associated with having the kitchen operational, by paying the chef and the cooking staff and the restaurant staff, at the same time.

PN615

You understand that the Wentworth - - -

*** JAMES ALEXANDER BALE XXN MR BULL

PN616

VICE PRESIDENT HATCHER: What do you mean by "stigma"?‑‑‑It's a case that we're out of town, a lot of people that are locals, it's probably a bit different to being in the city, it's just my analogy, your Honour, that we're not in town. Like there's pubs and clubs in town that are ready to go. Even though we're only four Ks out or five Ks out of town, people say, "Well, I'm not going to go there." It's just what happens in the bush, sorry.

PN617

MR BULL: So you are, just returning to this theme of being a country golf club, you're really a facility that exists for the people in Orange, your members who want to play golf, that's correct?‑‑‑Yes.

PN618

You understand the notion of not-for-profit is that you're not an enterprise to make money, you're to exist for a community purpose which, in your case, is to provide a facility for people to play golf?‑‑‑Our records show we have made a profit.

PN619

Right, but you don't make much of a profit. That's not necessarily a bad thing because in terms of pursuing what is your primary purpose, which is providing a facility for the golfers in Orange, you achieve that, that's correct?‑‑‑Yes.

PN620

You have some poker machines in your club?‑‑‑We have 15.

PN621

I think the revenue is around $250,000 a year from the poker machines?‑‑‑Last year it was 180.

PN622

I withdraw that, sorry. But it's been greater than that, hasn't it?‑‑‑It has been in the past. I think the highest it's been in the last probably seven years was probably the 240, 250 that you mentioned.

PN623

You mentioned at paragraph 34 of your statement, that the poker machines make between $1000 and $2000 profit per week?‑‑‑Correct.

PN624

But in the week ending 1 April, the club made a loss of $200. Does that mean that someone was particularly lucky or there was a big payout that week?‑‑‑Yes, we had a payout of $2500 that week.

PN625

Is that one person, one punter?‑‑‑One person. The machines do have jackpots on them, and then when the jackpots go off then we pay out, depending on what the income is. The machines are made to make a profit over a period of time, or probably between 90 to 92 per cent, however that week the income, less the outgoings, gave us a loss.

*** JAMES ALEXANDER BALE XXN MR BULL

PN626

So despite your programing of the machines, (indistinct) compliance you've noted in your statement an exceptional event, because on 1 April this year the poker machine paid out more than it took in, is that correct?‑‑‑Yes.

PN627

That's noteworthy?‑‑‑That's part of the game.

PN628

Well, not a good game for the person playing the poker machines?‑‑‑Well, the one that won was happy.

PN629

So last year you made a slender surplus of 188?‑‑‑That was not last year but the year before. I don't know if I've given you - - -

PN630

Sorry, you're right, sir. This is the financial year ending 31 March 2016?‑‑‑2017 we made a loss of $68,000.

PN631

Yes, but 2015, you use the FBT reporting, 31 March is when you do your financial reports?‑‑‑Yes.

PN632

I'll just go through them. So 2016 you made 188 surplus?‑‑‑Yes.

PN633

2015 there was an $18,663 profit, does that sound about right?‑‑‑Yes.

PN634

2014 there was a profit of $38,149, that sounds about right?‑‑‑Yes.

PN635

Then in 2013 there was a loss of $19,284?‑‑‑Yes, I think that was a loss.

PN636

Do these numbers sound all right to you?‑‑‑Yes, they do.

PN637

Now, how many full-time employees have out got, again, sorry?‑‑‑Seven.

PN638

And only four of them are covered. So three are exempt employees, is that correct?‑‑‑Yes, there's three employees that are paid over the 50 per cent.

PN639

All right, so they're paid more than 50 per cent - the managerial rates?‑‑‑There's two that are paid at 50 per cent and one that's paid over.

*** JAMES ALEXANDER BALE XXN MR BULL

PN640

More than 50 per cent?‑‑‑Correct.

PN641

You're one of those full-time employees?‑‑‑Yes.

PN642

Are you the one paid 50 per cent more, or over 50 per cent?‑‑‑No, I'm paid only the 50 per cent. It's the chef that's paid over 50 per cent, because they're hard to get.

PN643

Fair enough. So when you do your rosters do you design them in such a way that you try and get the four full-time employees, who are subject to clause 34.3, rostered on public holidays?‑‑‑No.

PN644

So it's not such a critical matter for your management that in informs your rostering?‑‑‑Say that again, sorry?

PN645

It's not so important to the way you manage the club that you deliberately roster people on on public holidays to avoid this sort of double-dipping?‑‑‑We don't deliberately roster on, they normally have the Monday and Tuesdays off and he ground staff only work the Monday to Friday.

PN646

The amount you have to pay, in terms of - to these four employees when they don't work on a public holiday, in terms of the running of the club and your general finances, is a pretty inconsequential amount, isn't it?‑‑‑Well, seeing we made a loss, it's probably - the board look at these things and say, "Why did we make a loss?" We had wet weather in the last three months, during May, June and July last year, which impacted us fairly heavily. And then, all of a sudden, you get another, say, $2000 loss on top of it, that's attributed to it, it could have been a bit better for us.

PN647

Yes, but it's not a matter of great consequence, is it? It's not something that triggers the loss or triggers the profit, is it?‑‑‑It's a loss as we see it today. If, in the previous year when we made the $188 it would have probably meant a $2000 profit to the club. Even though it's not-for-profit, we still need to make sure that we're looking as good as we can for our members.

PN648

So you're saying it's a consequential thing, in terms of the management of the club?‑‑‑No, I'm just saying that if we didn't have to pay it, it would have been a better profit for the club.

*** JAMES ALEXANDER BALE XXN MR BULL

PN649

I'm putting to you that the payment of this allowance or this entitlement is of utterly no consequence to the management of the club, or its profitability?‑‑‑It's a case, I think, when you look at it, we've got permanent part-time staff that aren't entitled to the same benefit and yet we're paying it to full-time people for not doing anything different. They get it for doing nothing, basically, other than what their normal job is. Like on a Sunday, on Easter Sunday, I've got the day off, they've got the day off, they're getting paid for it, I don't get paid for it, because I'm over the limit, but if I was working in my previous job, when I was in the bank, Easter Sunday, I didn't get paid any extra for it.

PN650

So you resent it because you feel it's getting money for nothing?‑‑‑I think, in your words, if it's money for nothing then why have it?

PN651

No further questions.

PN652

VICE PRESIDENT HATCHER: Any re-examination, Mr McDonald?

RE-EXAMINATION BY MR MCDONALD [2.27 PM]

PN653

MR McDONALD: Mr Bale, you were just using a figure before of $2000, what does the $2000 come from?‑‑‑That would be if we had to pay all four people. I've just worked roughly on the figure of about $20 an hour for 7.6 hours times four people. So that's just trying to give an estimation, with the hours, and that's for one day. You're looking at about $630, times it by the number of days that we had last year, Christmas, New Year's Day and also Easter.

PN654

I see. Nothing further. Thank you, Mr Bale.

PN655

VICE PRESIDENT HATCHER: Thank you very much, Mr Bale, you're excused and you're free to go.

<THE WITNESS WITHDREW [2.28 PM]

PN656

VICE PRESIDENT HATCHER: Mr McDonald, is that all we can do today?

PN657

MR McDONALD: Yes, it is, your Honour.

PN658

VICE PRESIDENT HATCHER: Any other procedural matters up your sleeve, Mr Bull?

*** JAMES ALEXANDER BALE RXN MR MCDONALD

PN659

MR BULL: Nothing I want to raise. Nothing up my sleeve or in my pocket or anywhere else, Vice President.

PN660

VICE PRESIDENT HATCHER: All right, thank you. We will now adjourn and we will resume at 10 am tomorrow morning, starting with Mr Moore, appearing by video from Newcastle.

ADJOURNED UNTIL TUESDAY, 25 JULY 2017 [2.28 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANTHONY SALVATORE TRIMARCHI, SWORN....................................... PN172

EXAMINATION-IN-CHIEF BY MR MCDONALD....................................... PN172

EXHIBIT #1 STATEMENT OF ANTHONY TRIMARCHI DATED 18/04/2017 PN221

CROSS-EXAMINATION BY MR BULL.......................................................... PN221

THE WITNESS WITHDREW............................................................................ PN342

ROBERT DAVID CASSANO, SWORN............................................................ PN351

EXAMINATION-IN-CHIEF BY MR MCDONALD....................................... PN351

EXHIBIT #2 STATEMENT OF ROBERT CASSANO DATED 27/04/2017. PN357

EXHIBIT #3 BUNDLE OF HARDSHIP ASSISTANCE APPLICATIONS.. PN364

EXHIBIT #4 COSTING DOCUMENT PREPARED BY ROBERT CASSANO FOR PERIOD JULY 2016 TO JUNE 2017.................................................................................. PN400

EXHIBIT #5 PROJECTED COSTING DOCUMENT PREPARED BY ROBERT CASSANO FOR PERIOD JULY 2017 TO JUNE 2018........................................................ PN401

CROSS-EXAMINATION BY MR BULL.......................................................... PN412

RE-EXAMINATION BY MR MCDONALD.................................................... PN531

THE WITNESS WITHDREW............................................................................ PN540

EXHIBIT #6 SUMMARY OF GAMING REVENUE 2012-2016 AT CLUB ASHFIELD PN544

JAMES ALEXANDER BALE, SWORN........................................................... PN556

EXAMINATION-IN-CHIEF BY MR MCDONALD....................................... PN556

EXHIBIT #7 WITNESS STATEMENT OF JAMES BALE DATED 18/04/2017 PN562

CROSS-EXAMINATION BY MR BULL.......................................................... PN572

RE-EXAMINATION BY MR MCDONALD.................................................... PN652

THE WITNESS WITHDREW............................................................................ PN655