PN1

THE VICE PRESIDENT: Yes, I'll take appearances. Mr Duc, you appear for Restaurant and Catering Industrial?

PN2

MR DUC: Thank you, your Honour.

PN3

THE VICE PRESIDENT: And Mr Dowling, you appear for United Voice.

PN4

MR DOWLING: I do. Good morning again, your Honour.

PN5

THE VICE PRESIDENT: Yes, is that all the appearances? Yes, all right. Mr Duc?

PN6

MR DUC: Yes. Thank you, your Honour. Your Honour, we received the submissions from United Voice a few days ago and, subject to one issue concerning the stay, the dates that have been suggested by United Voice are suitable to Restaurant and Catering Industrial.

PN7

THE VICE PRESIDENT: Well, I'll come to Mr Dowling in a second, but it involves United Voice going first. Why is that?

PN8

MR DUC: I haven't had any discussions with my friend on that point.

PN9

THE VICE PRESIDENT: Okay. So you're content for the threshold issue, as to whether you should be allowed to mount your case, to be dealt with initially by way of submissions and then in a hearing of two days. Is that right?

PN10

MR DUC: I would have suggested one day, your Honour.

PN11

THE VICE PRESIDENT: Yes, and just for my curiosity what is the case that Restaurant and Catering Industrial want to run?

PN12

MR DUC: That the penalties on the weekend should be further reduced and the primary - - -

PN13

THE VICE PRESIDENT: I know what you're asking for.

PN14

MR DUC: Yes.

PN15

THE VICE PRESIDENT: But on what basis?

PN16

MR DUC: Well, at this stage - - -

PN17

THE VICE PRESIDENT: I mean having regard to what the Penalty Rate Full Bench said.

PN18

MR DUC: Well, at this stage we hope to get through the transitional - I'm sorry, we hope to get through the threshold issue before moving on. Our case will be that the Commission has not fully exercised its jurisdiction. It gave Restaurant and Catering the opportunity to further litigate its claim and put on further evidence to ensure that the modern awards objective is being met.

PN19

THE VICE PRESIDENT: I thought one of the issues was the failure of your client to run a case in respect of the previous adjustment to Restaurant Award penalty rates and what was said in that decision. So what is your case going to be in that respect?

PN20

MR DUC: Yes, your Honour, apparently there was a failure to deal with the previous decision in I think 2014 and that was - I'm not sure how I could properly describe that as I didn't run that particular case. The primary submission is that the Commission has not fully exercised its jurisdiction in regard to whether the award meets the modern awards objective and we seek to fully prosecute that to ensure the Commission has available all of the evidence to properly ensure that the award meets the modern award objective.

PN21

THE VICE PRESIDENT: I understand that, but in doing so what is the case vis‑á‑vis the 2014 decision?

PN22

MR DUC: I'm not fully across that particular case as yet, your Honour.

PN23

THE VICE PRESIDENT: Right. Okay, Mr Dowling?

PN24

MR DOWLING: Thank you, your Honour. I take it you've again had the opportunity to see a short note we filed?

PN25

THE VICE PRESIDENT: Yes I have, but why does United Voice propose to go first?

PN26

MR DOWLING: Yes.

PN27

THE VICE PRESIDENT: That is, isn't it up to the applicant to demonstrate why they should be given this further opportunity?

PN28

MR DOWLING: We would have no problem with that, your Honour. We were a little unsure, given the way it was raised. It seemed to be from paragraph 2046 from the principal decision that it might have been on us to demonstrate and that's why we framed it that way. But for our part we would certainly be content if what your Honour proposes is that Restaurant and Catering Industrial make out why it is they should be given the opportunity to re‑litigate it and they go first and we respond. The only change to the timetable would then be RCI would be by 22 September, ours in reply would be 20 October and their reply by 3 November.

PN29

THE VICE PRESIDENT: All right, and then there's a hearing. Why would it take two days?

PN30

MR DOWLING: I can now see that that's perhaps an overestimate. We were cautious borne from some experience with a lot of interested parties wishing to be heard. But it appears from today the debate might just be between Restaurant and Catering Industrial and United Voice, and if that's the case we think it can clearly be done in a day.

PN31

THE VICE PRESIDENT: All right.

PN32

MR DOWLING: We were concerned that there would be a number of interested parties wishing to be heard and that might push it over. If that's not the case, one day will be sufficient.

PN33

THE VICE PRESIDENT: All right, thank you. Anything further?

PN34

MR DOWLING: No, your Honour.

PN35

THE VICE PRESIDENT: Thank you. So Mr Duc, unless you persuade me otherwise I'd be inclined to make directions which require your client to go first and then United Voice to respond, and then a right of reply and then a hearing of one day maximum. Is that convenient to your client?

PN36

MR DUC: Yes. Thank you, your Honour.

PN37

THE VICE PRESIDENT: And I understand you may not be in a position to articulate it now but your client no doubt understands that in this threshold process it will need to articulate what case it intends to run vis‑á‑vis the 2014 decision, because it seems to me that's the fundamental issue which the Penalty Rates Full Bench identified and which was not addressed, and you need to tell us what is the nature of the case you intend to run having regard to what that decision said.

PN38

MR DUC: Yes, your Honour.

PN39

THE VICE PRESIDENT: All right. I'll confirm the directions and listing in writing. There might be some informal contact with counsel about availability but subject to that, I'll make the directions as indicated and now adjourn.

PN40

MR DOWLING: Sorry, your Honour? Sorry, your Honour.

PN41

THE VICE PRESIDENT: Sorry, Mr Dowling, yes?

PN42

MR DOWLING: I'm sorry. The video link makes it a little difficult. I did want to say two very quick things. I can tell you in advance in terms of counsel availability, the period from 3 November to the end of November is suitable for counsel for United Voice. In respect of the first issue your Honour raised, that Restaurant and Catering Industrial address the effects of the 2014 decision, we think the four dot points at paragraph 2048 there sets out - including that very significant one, your Honour is correct - but there set out the issues that Restaurant and Catering Industrial need to address.

PN43

THE VICE PRESIDENT: All right. Thank you.

PN44

MR DOWLING: Nothing else.

PN45

THE VICE PRESIDENT: I'm sure Mr Duc has noted that.

PN46

MR DUC: Thank you, your Honour. Just one further thing. My friend seeks a stay at paragraph 7 of his submissions and we would oppose any stay pending the determination of the proceedings before the five member Full Bench in late September of this year.

PN47

THE VICE PRESIDENT: Well, I think it's apart from the hearing a determination of a threshold issue so we don't need to deal with that until we've dealt with the threshold issue. If the Federal Court proceedings still haven't been determined by that time then we can address it then I think.

PN48

Is that satisfactory, Mr Dowling?

PN49

MR DOWLING: Yes, your Honour.

PN50

THE VICE PRESIDENT: Yes, all right. Thank you. We will now adjourn.

ADJOURNED TO A DATE TO BE FIXED [9.42 AM]