PN1

VICE PRESIDENT CATANZARITI: Thank you, I'll have the appearances please.

PN2

MR B FERGUSON: If the Commission pleases, my name is Ferguson, initial B, for Ai Group Workplace Lawyers, on behalf of Hair and Beauty Australia. With me at the Bar table is Ms Bhatt, initial R.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr Ferguson.

PN4

MR C DOWLING: Members of the Commission, if the Commission pleases I seek permission to appear on behalf of the Australian Workers Union and the Shop Distributors and Allied Employees Association, with my learned friend, Mr Bakri.

PN5

VICE PRESIDENT CATANZARITI: Yes. There's no problem with permission, is there?

PN6

MR FERGUSON: There isn't, and I'm in the unusual position of needing to seek permission, as well, today.

PN7

VICE PRESIDENT CATANZARITI: Yes. Permission is granted then to the parties. Just some housekeeping before we start. I note that a number of the materials are confidential so we just need to be careful how we navigate the confidentiality. We've only got two people in the room at the moment, but just in case there are people in the room when there are things that need to be done. In terms of the transcript what will happen is you'll get the transcript and then you'll let us know whether things should be removed that have gone into the transcript before it gets loaded onto the website. So I'm just concerned about that because in these sort of matters we sometimes forget about the orders that have been made for confidentiality already.

PN8

MR FERGUSON: Yes, in relation to that issue there will be a concern that some of that evidence is treated confidentially, particularly if my learned friend is going to take the witnesses through each of the financial documentations that have been prepared. So I'm not sure who's in the room - - -

PN9

VICE PRESIDENT CATANZARITI: All right.

PN10

MR FERGUSON: But at that time we'll make a request.

PN11

VICE PRESIDENT CATANZARITI: Who is in the room? Mr Dowling?

PN12

MR DOWLING: Yes, we're content to follow that course.

PN13

VICE PRESIDENT CATANZARITI: All right. Is the person in the room on your – that's one of your people? Yes, that's right. I've seen her before.

PN14

MR DOWLING: Ms Burnley(?) and Ms Bhatt.

PN15

VICE PRESIDENT CATANZARITI: Mr Burnley, yes. And let's see, we've got - - -

PN16

SPEAKER: I'm from the Attorney-General's Department.

PN17

VICE PRESIDENT CATANZARITI: Right. Yes. And, yes, I know the gentleman who just walked in, as well. All right. They were my housekeeping matters. Any other housekeeping matters?

PN18

MR FERGUSON: Yes, there is from our perspective. On Friday, late on Friday a volume of new material was filed by the union.

PN19

VICE PRESIDENT CATANZARITI: That's right.

PN20

MR FERGUSON: We have only had a chance to have a cursory look at that material. Some of it is illegible because there was some sort of fault in the document that was sent through.

PN21

VICE PRESIDENT CATANZARITI: All right.

PN22

MR FERGUSON: I understand that there's likely to be a proposal to tender that material, which we will be objecting to almost all of it because the Bench should be aware there were directions for filing material over a year ago and there's no real reason why it's been tendered at this late stage.

PN23

VICE PRESIDENT CATANZARITI: Have you had any discussions with Mr Dowling before this?

PN24

MR FERGUSON: Only his view - - -

PN25

VICE PRESIDENT CATANZARITI: Because we only became aware of it on Friday, as well. Sorry?

PN26

MR FERGUSON: Yes. Only his view was that we should have this argument and I'll mount the argument more fully if I need to when he seeks to tender it. I haven't heard anything further about what he is proposing to do.

PN27

VICE PRESIDENT CATANZARITI: Perhaps during one of the breaks if you have a discussion about what's in this folder and where it lands.

PN28

MR FERGUSON: Yes, some - - -

PN29

VICE PRESIDENT CATANZARITI: Mr Dowling?

PN30

MR DOWLING: Thank you, your Honour. I'm happy to explain. Really, the documents – there might be a question about whether they need to be tendered. They really are a – documents 1 to 7 and 14 to 20 are really an aide to the submissions. They are, for example, a document that explains the ANZSIC(?) classifications. The Bench might be aware that Mr O'Brien, the expert called on behalf to the unions analyses some ABS data relying on the ANZSIC classifications. Now it might not be necessary that that document formally be tendered but we think it's something that will assist the Commission in its deliberations. So perhaps I can talk to my learned friend and we can decide what's properly evidence and what just might attach to the submissions.

PN31

VICE PRESIDENT CATANZARITI: Yes.

PN32

MR DOWLING: We can deal with that between us. A couple of brief housekeeping matters from me, your Honour, we have prepared for your assistance a list of the witnesses either to be called or who are not required for cross-examination, called on behalf of the two unions. If I can provide three copies of that. We've done that for two reasons. One, it identifies for those two witnesses that are to give evidence by telephone, their telephone contact details for the assistance of your Honour's Associate; the second reason – I think I said two, can I make that three – the second reason is simply to identify the times at which on our best estimate we think those witnesses will give evidence; and the third reason, simply to indicate those witnesses who have provided a statement but are not required for cross-examination.

PN33

VICE PRESIDENT CATANZARITI: All right. I think that bit, was it the Tracey Johnson statement, will not be proceeded with in the proceedings?

PN34

MR DOWLING: That's correct, your Honour. The second matter of housekeeping, there was filed together with the material provided by the applicant in the matter, a survey annexed to the material of Mr Sullivan. There was some communication, or has been communication in respect of the parties about that and there was a conclusion reached and an agreement reached as to how that should be dealt with, and that agreement included that the following be put on transcript and what is agreed to go onto transcript is this, your Honour, that HABA, the applicant, does not submit – that's my learned friend, that the results of the survey are representative of its membership; HABA does not submit that the result of the survey are representative of the hair and beauty industry at large; HABA does not assert that the results of the survey are statistically significant; and HABA does not seek to extrapolate the results to the hair and beauty industry generally; and it agrees that it will not make any submission inconsistent with that submission. And as a result there was a press for some certain documents arising from the survey that no longer pressed.

PN35

VICE PRESIDENT CATANZARITI: Mr Ferguson may address as to what then becomes the utility of that material.

PN36

MR DOWLING: Yes. Well, I'll leave that for my learned friend.

PN37

VICE PRESIDENT CATANZARITI: Given what you've just said.

PN38

MR DOWLING: Yes.

PN39

VICE PRESIDENT CATANZARITI: Because I have read the material and even on a first look, it did not like to be representative which is a problem in itself.

PN40

MR DOWLING: Yes.

PN41

VICE PRESIDENT CATANZARITI: And the sample size if very small.

PN42

MR DOWLING: All of that is expressly conceded.

PN43

VICE PRESIDENT CATANZARITI: Yes.

PN44

MR DOWLING: Now one last housekeeping matter from me, I am instructed that there was an exhibit attached to Ms Brandreth's statement, who's the one identified at item 7 on the list we provided today, KB4, which is either not legible or is very difficult to read. Can I just advise the Commission that during the course of today, and certainly before Ms Brandreth's statement is filed, we will provide to the Commission a further and more easy to read copy of exhibit KB4 attached to her statement. Unless there are any questions for me they are the only housekeeping matters on behalf of the - - -

PN45

VICE PRESIDENT CATANZARITI: No. No. Thank you.

PN46

MR FERGUSON: There is only one other housekeeping issue and that relates to the witness, Annette Harman. We have been unable to make contact with Ms Harman and it obviously looks like we may be unable to call her to give evidence. In saying that, obviously in the period since we first filed our material and today's date a number of our witnesses have withdrawn from the proceedings. So we're loathe to give up on Ms Harman lightly. We would seek today, being the new week, to try and call again to see if we can make contact with Ms Harman to see whether she could perhaps be called in the next sitting days.

PN47

VICE PRESIDENT CATANZARITI: Yes, we made that clear in the correspondence that Ms Harman can be fitted in either this week or next week if she's around.

PN48

MR FERGUSON: So what we've done today, because she was scheduled to give evidence at 12.00, is made arrangements for Mr Graham Downs to give evidence earlier in the day. And I understand the union is comfortable with that.

PN49

VICE PRESIDENT CATANZARITI: Yes, and hopefully Mr Dowling is going to try to move his witnesses up, as well.

PN50

MR DOWLING: Yes, we are putting them all on notice that we expect that they'll be required earlier.

PN51

VICE PRESIDENT CATANZARITI: Yes. Thank you. All right then, thank you, Mr Ferguson.

PN52

MR FERGUSON: We don't propose to make any sort of detailed opening on behalf of HABA. We've set out quite detailed submissions identifying the (indistinct) that we're mounting in support of the proposed changes. We propose to move straight into the evidence.

PN53

VICE PRESIDENT CATANZARITI: Yes, that's fine.

PN54

MR DOWLING: And on that basis we'd call Mr Sarkis Akle.

PN55

THE ASSOCIATE: Please state your full name and address for the record.

PN56

MR AKLE: Sarkis Joseph Akle, (address supplied).

<SARKIS JOSEPH AKLE, SWORN [9.44 AM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [9.44 AM]

PN57

MR FERGUSON: Good morning, Mr Akle?‑‑‑Thanks.

PN58

Would you state your full name again for the Commission?‑‑‑Sarkis Joseph Akle.

PN59

Mr Akle, have you prepared a statement for the purposes of these proceedings?‑‑‑Yes, I have.

PN60

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

PN61

And is that statement some 37 paragraphs I length?‑‑‑It is.

PN62

Is it dated 9/3/2018?‑‑‑It is.

PN63

And can I take you to paragraph 7 of that statement?‑‑‑Yes.

PN64

Are there any amendments you'd like to make to that paragraph?‑‑‑Paragraph 7, just where it says, 'public holidays,' we do open – we did open on an Easter Saturday in that year.

PN65

So where you say 'public holidays, closed' - - -?‑‑‑Closed, yes.

PN66

It should say, 'closed except Easter Saturday'?‑‑‑Easter Saturday, that's correct.

PN67

All right. Can I take you to paragraph 27?‑‑‑Yes.

PN68

Now you there say none of the salons open on public holidays in the first sentence. Did you want to make any amendment to that?‑‑‑Yes, we are open on Easter Saturday at the Parramatta salon.

*** SARKIS JOSEPH AKLE XN MR FERGUSON

PN69

So this statement obviously was 1 March?‑‑‑Yes.

PN70

Sorry, 9/3/2018?‑‑‑Yes.

PN71

At that date was it the Parramatta salon that was open on Easter Saturday?‑‑‑Only the Parramatta one, that's correct.

PN72

So should it say, 'None of the salons open on public holidays except for the Parramatta salon on Easter Saturday'?‑‑‑That's correct.

PN73

Is the statement otherwise true and correct as at the date it was prepared, to your knowledge?‑‑‑Yes, it is.

PN74

I tender that.

PN75

VICE PRESIDENT CATANZARITI: Thank you, and the document we're working on is the document that's go the redactions in it, as well, so that's the version we use.

PN76

MR FERGUSON: Yes, it is. Yes.

PN77

VICE PRESIDENT CATANZARITI: That will be exhibit 1.

EXHIBIT #1 AMENDED STATEMENT OF SARKIS JOSEPH AKLE OF 37 PARAGRAPHS DATED 09/03/2018, REDACTED VERSION

PN78

MR FERGUSON: Thank you. The witness is available for cross-examination.

PN79

VICE PRESIDENT CATANZARITI: Thank you. Mr Dowling?

CROSS-EXAMINATION BY MR DOWLING [9.46 AM]

PN80

MR DOWLING: Thank you, your Honour. Can I just clarify the last comment your Honour made about the redactions. I think out of caution on Thursday of last week my instructors forwarded to the Commission copies of those redacted versions with the strike-through, because I think up until that point they had not appeared on the Commission's website.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN81

VICE PRESIDENT CATANZARITI: They have not appeared on the website but the documents I've had for some time have been redacted so in this one, paragraph 30 is - - -

PN82

MR DOWLING: That's right.

PN83

VICE PRESIDENT CATANZARITI: Strike it straight through.

PN84

MR DOWLING: Yes. We're all working on the same copy. I'm grateful, thank you. To witness: Mr Akle, is it correct that you now hold an office with the Hair & Beauty Association?‑‑‑No, it's not.

PN85

Have you ever held an office with the Hair & Beauty Association?‑‑‑I have.

PN86

When was that?‑‑‑That was up until November 2017.

PN87

All right. What was the office you held?‑‑‑It was initially a committee member, and then for the last two years – I was there for a total of four years, and the last two years as Vice President. Sorry – yes, sorry, as Vice President. That's - - -

PN88

All right. Can I ask you then a number of questions about the association?‑‑‑Yes.

PN89

Is it fair to say that it does not represent all employees in the hair and beauty industry, only a portion?‑‑‑A portion but a large portion, yes.

PN90

I think your – tell me if you don't know, Mr Akle, but the Association's report ending June 2017 identified that the association had 991 members, does that - - -?‑‑‑That sounds about right, yes.

PN91

And the 2016 report indicated it had 1077 members. Does that accord with your recollection of 2016?‑‑‑I can't recall that far back.

PN92

And 2018 report, 864 members?‑‑‑I was not on the board at that time so I wouldn't be able to say.

PN93

Okay?‑‑‑Yes.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN94

All right. But the best of your recollection then is the membership in 2017 at 900 odd?‑‑‑That would – yes, that would sound about right.

PN95

Of course, there's no obligation on employees in the industry to join the association?‑‑‑No, there isn't.

PN96

And there's other associations they can join?‑‑‑There is, yes.

PN97

Do you know – tell me if you're not able to say, of course, but how many businesses there are in the industry?‑‑‑I couldn't say correctly. I've heard the figure of around 20,000 salons in Australia but I couldn't say exactly.

PN98

Yes. In your time on the board of the Association did you read or were you provided with the IBIS reports about the - -?‑‑‑I have seen some in the past, yes.

PN99

If I suggest to you that the August of 2018 IBIS report says there are 22,156 businesses in the industry, you accept that sounds about right?‑‑‑From the figures I've heard I would – I haven't seen the report but I would presume if that's what it says - - -

PN100

And of those businesses in 2017, the association represented about 900?‑‑‑Nine hundred members. That doesn't necessarily mean salons, because a lot of members have multiple salons.

PN101

Yes?‑‑‑Yes.

PN102

And are you able to say how many salons would be represented by - - -?‑‑‑I couldn't give you an exact number, no. No.

PN103

But even accounting for members having a number of salons, you'd accept that the HABA membership is a very small portion of the total number of businesses in the hair and beauty industry?‑‑‑It might be a small portion but I think it's a big enough snapshot to get a decent indication of the industry.

PN104

Perhaps let's just deal with the first part of the question?‑‑‑Yes.

PN105

You accept it's a small proportion?‑‑‑One of the largest proportions of any membership of any association in our industry.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN106

I'm not asking you to compare it with other associations, Mr Akle?‑‑‑Yes.

PN107

I'm just asking you to say whether you accept that of the 22,000, a membership of 900, even accounting for multiple salons, is a small proportion?‑‑‑Yes, you could say that, yes.

PN108

Now you said in your evidence before that there are other associations that employers can join, yes?‑‑‑That's correct.

PN109

And one of those is known as the Hair & Beauty Industry Association?‑‑‑Yes, that's correct, yes.

PN110

They represent employers in the hair and beauty industry?‑‑‑Yes, they would.

PN111

And tell me if you're not able to say but is it correct that they are now part of a larger association called the Australian Retailers' Association?‑‑‑I couldn't tell you.

PN112

And I take it that when you were a member of, or when you were the Vice President in 2017 this proceeding, of course, had been commenced, correct?‑‑‑Correct, yes.

PN113

And it was discussed?‑‑‑Yes, it was.

PN114

And I take it that as a result of those discussions you are aware that the Hair & Beauty Industry Association is not a party to this application?‑‑‑No, it's purely by Hair & Beauty Australia.

PN115

And the Hair & Beauty Industry Association is not participating in this hearing in any way, to the best of your knowledge?‑‑‑To the best of my knowledge, that's correct.

PN116

Now there is another organisation known as the Australian Hairdressing Council. Is that an organisation you're aware of?‑‑‑That is an industry association.

PN117

And they also representative employers in the hair and beauty industry, correct?‑‑‑They represent employers and employees, yes.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN118

Yes. And again from your knowledge of this application it's correct that that association or that council is not a party to this application, correct?‑‑‑As far as I'm aware, no, they're not.

PN119

And they are not, to the best of your knowledge, participating in this application in any way?

PN120

MR FERGUSON: I object to this line of questioning. This is a line of questioning about the role that associations, to my knowledge, not being registered associations, are taking in these sorts of proceedings. I struggle to see what relevance that is in the context of whether or not an award term is necessary to meet the Modern Award's objective.

PN121

VICE PRESIDENT CATANZARITI: We'll allow the question.

PN122

MR DOWLING: Thank you, your Honour. Sorry, I'll go back just so you can be clear what the questions were, Mr Akle. To the best of your knowledge the Australian Hairdressing Council is not a party to this application?‑‑‑Not that I'm aware of.

PN123

And they are not participating in this hearing, in any way, to the best of your knowledge?‑‑‑Not that I'm aware of.

PN124

Thank you. Now are you aware during your time as the Vice President that the Hair & Beauty Association undertook a survey of its membership?‑‑‑Hair & Beauty Australia, are you referring to?

PN125

Yes. Yes?‑‑‑Yes, I do, yes.

PN126

And is it correct to say that that was a survey sent to all its members?‑‑‑As far as I'm aware of, yes.

PN127

And some of that material has been provided and I can tell you to assist, that of the total membership, 151 members provided a complete response and 201 provided an incomplete response. Does that accord with your recollection of the response to the survey?‑‑‑I don't remember exactly but I'm – I don't – it was quite a while ago so we're talking – I don't remember the exact numbers.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN128

Does that accord with your recollection of the approximate numbers of answers?‑‑‑I can't say because I don't actually remember the exact numbers.

PN129

All right. If you, for argument's sake, take me at my word that 151 completed the response and 102 provided an incomplete response, you'd accept, at least in 2017, that left somewhere in excess of 600 and below 700 that did not respond to the survey at all, correct?‑‑‑If that's the numbers you have, I would presume that, yes.

PN130

And would it be fair to say that that would suggest that those six or seven hundred out of your 900 were not concerned enough about this issue to complete the survey?‑‑‑I can't make - - -

PN131

MR FERGUSON: I object to that?‑‑‑I can't make that judgment.

PN132

VICE PRESIDENT CATANZARITI: Wait, don't answer it yet.

PN133

MR FERGUSON: The witness can't speak to the minds of potential survey recipients.

PN134

VICE PRESIDENT CATANZARITI: Yes. I'm not allowing that question, Mr Dowling, in that form.

PN135

MR DOWLING: Thank you, your Honour. Was there a discussion – you said there was a discussion about this application. Was there a discussion during your time as Vice President that given the small number of people that responded to the survey there might be some doubt about whether the answers are representative of the membership?

PN136

MR FERGUSON: I object to that. I'm concerned that any answer he gives may be divulging privileged information.

PN137

VICE PRESIDENT CATANZARITI: That's a different – are you suggesting there's some privilege attraction in the answer to that question?

PN138

MR FERGUSON: There could be. I'm not sure whether there were discussions outside of that context or that he was proposing to reveal discussions.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN139

VICE PRESIDENT CATANZARITI: Look, Mr Dowling, given the concessions that were made about the survey do we really need to continue this line of cross-examination, when the numbers are the numbers? The concession made is that the survey doesn't stand for very much.

PN140

MR DOWLING: Yes. Thank you. I have one more question about the survey.

PN141

DEPUTY PRESIDENT ASBURY: You're nothing if not persistent, Mr Dowling.

PN142

MR DOWLING: And the witness might or might not know. Did you have any role in framing the questions for the survey, Mr Akle?‑‑‑Not that I'm aware of.

PN143

Did you see the questions to the survey?‑‑‑Well, as a member, I received the survey, myself.

PN144

And did you complete it?‑‑‑I'm pretty sure I did but I can't say for sure. But I'm pretty sure I did.

PN145

And having completed it, you would have seen that the survey did not ask any members the question as to whether they supported the cuts to penalty rates or opposed it. Is that correct to your recollection?‑‑‑Look, I can't remember the questions. I haven't seen the survey for a long time. It's been over two years so I couldn't be positive with any answer I gave.

PN146

All right. Can I ask you some questions about the three salons that you refer to in your statement?‑‑‑Yes.

PN147

Firstly, the Parramatta salon?‑‑‑Yes.

PN148

You identify your employees at that salon. Can I just ask you to confirm the classification of those employees?‑‑‑Mm-hm.

PN149

Now as we understand it, in response to some requests that we have made that of the 15 employed at Parramatta, eight are employed at level 3 or above?‑‑‑That's correct.

PN150

And four at level 1?‑‑‑Which is casual employment?

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN151

No, I'm talking about their classification?‑‑‑Classification. Level 1, at that – I'd say at that point in time, yes, because I was asked those questions so I presume that would be correct at that time.

PN152

All right. Can I just return back to the level 3?‑‑‑Mm-hm.

PN153

For the assistance of the members of the Commission a level 3 means that all of those employees would have a Certificate III qualification or above?‑‑‑That's correct.

PN154

And apprenticeship, they will have done an apprenticeship?‑‑‑That's correct, yes.

PN155

And together with the level 3's and the level 1, you have at the Parramatta store, three apprentices, is that correct?‑‑‑At that time I would say that would have been correct.

PN156

Are you able to say whether that's still the case today?‑‑‑I have – yes, I still have three apprentices there today.

PN157

If I can just ask you the same questions in relation to Carlingford - - -?‑‑‑Mm-hm.

PN158

You identify six employees, and as I understand it three of those are level 3 or above?‑‑‑That would have been the case at the time, yes.

PN159

Are there more now or are there less?‑‑‑No, about the same.

PN160

There are two apprentices?‑‑‑Only one at the moment but there would have been two back then.

PN161

Does that mean the total number of Carlingford employees is now five?‑‑‑Yes, it is, that's correct. Sorry, no, it's six because I have one on maternity leave so she's still employed.

PN162

Only five presently working?‑‑‑Presently working, correct.

PN163

That's three of those five are trade qualified Cert III or above?‑‑‑They are.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN164

All right. The Camden store, you've described three full‑time employees?‑‑‑Yes.

PN165

The information we were given, and you might want to update it for us, was that two of those were trade qualified Cert III or above, level 3 or above?‑‑‑That's still correct, yes.

PN166

One apprentice?‑‑‑That's correct.

PN167

All right. Thank you very much for that. Just a matter of clarification, at paragraph, sorry, 17 of your statement you say there 'I understand that the proposed change will be relevant to the salons' award covered full-time, part‑time and casual employees', do you see that?‑‑‑Yes.

PN168

Are we to understand from that that there are other employees of the salons that are not award covered employees?‑‑‑I have a couple of receptionists that work in the Parramatta salon.

PN169

All right, and only the Parramatta salon?‑‑‑Yes.

PN170

They are not affected by any change, correct?‑‑‑No, they're still - - -

PN171

MR FERGUSON: I object to that.

PN172

VICE PRESIDENT CATANZARITI: Sorry, just one sec?‑‑‑Under the award - - -

PN173

Sorry, just - - -?‑‑‑Sorry. Yes, sorry.

PN174

MR FERGUSON: That's a question of law as to who an award applies to. I'm sure my learned friend can deal with that in submissions.

PN175

VICE PRESIDENT CATANZARITI: Look it is. No need to answer that. Re-frame the question, Mr Dowling.

PN176

MR DOWLING: When you said in your statement that the proposed changes would be relevant to the salons' award covered full-time and part-time casual employees, did you mean to indicate that there were some other employees of the salons that are not award covered?‑‑‑No, all employees are covered by the Hair and Beauty Award, including receptionists and salon assistants.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN177

Thank you, and do you pay yourself a salary? Are you an employee of the salons?‑‑‑Not a PAYG employee anymore. I pay myself through distribution of the business.

PN178

Right. Through the trust?‑‑‑Yes.

PN179

All right. Tell me if you don't know but I just want to clarify the rates you pay your level 3 employees. Are you able to say for the Commission's benefit - - -

PN180

VICE PRESIDENT CATANZARITI: Are we asking about as of now or as of the statement?

PN181

MR DOWLING: As of now.

PN182

VICE PRESIDENT CATANZARITI: As of now.

PN183

MR DOWLING: Thank you. You able to say the hourly rate you pay your level 3 employees?‑‑‑They're all on different rates.

PN184

All right and why is - - -?‑‑‑All above the award.

PN185

Why are they on different rates?‑‑‑Based on their performance within the business.

PN186

All right?‑‑‑And their experience.

PN187

Of course, all right. Are they ever paid in cash?‑‑‑Never.

PN188

You mentioned your own salary. Perhaps if I can show you a document, please?‑‑‑Thank you.

PN189

MR FERGUSON: I understand that counsel might be going to confidential documentation. I query whether we should request that the room be cleared.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 190-221

PN222

MR DOWLING: It's what we recommend. I asked you before about your level 3s all being - sorry, let me go back one step. I think from the numbers you accept that the majority of your employees are level 3 and above, correct?‑‑‑Correct, yes.

PN223

They are highly qualified?‑‑‑They are.

PN224

You refer to them as having - sorry, I withdraw that. Them all having done an apprenticeship and being Cert III qualified, you refer to them as trades employees?‑‑‑I do.

PN225

That is because you represent and understand them to be trades like other trades qualified employees?‑‑‑That's correct.

PN226

All right, and you would accept that that is very different to a shop retail assistant who has no trade qualifications, no Cert III and has not done an apprenticeship?

PN227

MR FERGUSON: I object to that. The witness can't necessarily give evidence about other - employees in other industries and I query what relevance - - -

PN228

VICE PRESIDENT CATANZARITI: Well he gives opinion for what it is worth having - - -

PN229

MR FERGUSON: But his opinion isn't relevant to these proceedings.

PN230

VICE PRESIDENT CATANZARITI: Well - - -

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN231

MR FERGUSON: On that basis, be inadmissible. It's opinion but as to - yes, it is opinion as to the equivalency of employees in this sector versus trade qualifications in other sectors. I mean, he hasn't had any - - -

PN232

VICE PRESIDENT CATANZARITI: Well I don't think he's being asked that question but want to re-phrase the question, Mr Dowling.

PN233

MR DOWLING: I'm not asking about equivalencies.

PN234

VICE PRESIDENT CATANZARITI: No.

PN235

MR DOWLING: That's my learned friend's word and not mine. I'm suggesting to you that you view your employees, given that they are trade qualified and referred to you as trades, as very different to a shop retail assistant with no trade qualification?‑‑‑Different in that regard but they still work under retail conditions so there's not many trades out there that have to work seven days a week in our ‑ like whereas we do being in the retail industry.

PN236

Let's deal with their qualifications first. You accept that they are vastly different to a retail assistant with no trade qualification?‑‑‑Different because they don't have a qualification, that's correct.

PN237

They have not done a four year apprenticeship, a retail assistant?‑‑‑No, it's now a three year apprenticeship. No, they don't, they haven't.

PN238

But your staff, being highly qualified, I take it are very important to you?‑‑‑Extremely important to my business.

PN239

All right, and for that reason, I take it that one of the most important things for you to do is to engage with them about how it is the business is conducted?‑‑‑That does happen, yes.

PN240

All right. I take it then that you have spoken to all of the staff at your Parramatta store about your intention to open on a Sunday?‑‑‑I have spoken to some of them, yes.

PN241

Not all of them?‑‑‑Not all of them.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN242

Have you spoken to them about your intention and your desire, as part of this proceeding, to reduce the penalty rate as it presently provides in the Hair and Beauty Industry Award?‑‑‑No, I haven't had that discussion with them.

PN243

Should we understand from that that you have told them that you may ask them to work on Sunday but you have not told them that you want to reduce the penalty rate that they would be entitled to?‑‑‑No, because I haven't made the decision to open on Sundays yet.

PN244

That's something that may or may not happen?‑‑‑Correct.

PN245

Thank you. In terms of that decision as to whether to open on a Sunday or not, do you accept that, of course, there are a number of factors that you might look at to decide whether to open or not?‑‑‑Yes, definitely.

PN246

One of those and one of the significant ones is the demand that there might exist in that location, correct?‑‑‑Yes.

PN247

All right, thank you. The other might be the labour cost, or one of the others might be - - -?‑‑‑Yes, definitely.

PN248

All right. If we take the Parramatta store, have you calculated, in terms of Sunday, the component of your labour cost on any Sunday that is attributable directly to the penalty rate presently provided for by the award?‑‑‑That does come into my calculations, yes.

PN249

Sorry, I might - I'll be a little more specific there with my question. Have you done a mathematical calculation at your Parramatta store to work out on any Sunday what proportion of the labour cost is attributable to the penalty rates currently provided for by the award?‑‑‑Yes, it'd be double.

PN250

Sorry?‑‑‑It would be double.

PN251

No, I'm not asking you whether it's single or double. I'm asking you have you worked out how much it is?‑‑‑Not in exact numbers, no. Not at this stage.

PN252

Not at this stage?‑‑‑No.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN253

All right. Should we understand from that then that you haven't done what might be the next exercise, which is to work out what the penalty rate component of a Sunday salary would be under the proposal in this proceeding to reduce the penalty rates?‑‑‑Well it's clear it would be less.

PN254

Yes, but have you worked it out, Mr Akle?‑‑‑Not to the exact number, no, I haven't.

PN255

All right. One of the things you say in respect of your three salons is that there's no enterprise agreement that applies?‑‑‑That's correct.

PN256

In respect of any of them?‑‑‑Yes.

PN257

You are aware, of course, that one of the options open to you is to negotiate an enterprise agreement with your employees?‑‑‑I'm sure that would be the case, yes.

PN258

One of the things that you could do as part of those negotiations would be to alter the penalty rates in the agreement provided you left the employees better off overall. That is an option open to you?‑‑‑I'm pretty sure I understand that's how it would work, yes.

PN259

You understand that's an option for you?‑‑‑Yes.

PN260

But is it correct to say that you've not explored those negotiations at any of your three salons?‑‑‑As an enterprise agreement, no, I have not.

PN261

All right. One last thing, Mr Akle, you understand, of course, that penalty rates are paid to provide or to compensate your employees for the disutility of having to work on a Sunday or a public holiday?‑‑‑Yes.

PN262

You understand that and you accept that's a fair and reasonable justification for providing for penalty rates?‑‑‑I do but not at the rates that they're at at the moment.

PN263

All right, and in respect of your Parramatta salon employees, these are employees that have not worked on a Sunday either at all or at least for the last six years, correct?‑‑‑That's correct.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN264

All right, and you'd accept that that would create some difficulty for each of them to suddenly be told they're going to have to work on a Sunday?‑‑‑Yes, it would but also if I was to open Sunday I would need to employ more staff so I could potentially employ staff just to work Sundays.

PN265

All right, and I think part of your evidence is that the first port of call for you would be your existing staff?‑‑‑If they wanted to work Sunday, yes, definitely.

PN266

You accept, of course, that those existing staff, if you were to reduce their penalty rates, would have to work more hours just to earn the same amount?‑‑‑Well they're not getting them at the moment so it's - I'm not reducing anything at the moment because they're not - we're not open on a Sunday at the moment.

PN267

Well let's start with public holidays, those public holidays that you do open - - -?‑‑‑One day a year, yes.

PN268

Yes, if you were to work that day under the reduced rate, you'd have to work more hours just to cover what you were earning under the old?‑‑‑Correct.

PN269

All right. In respect of your discussion with these employees, I think it's your evidence is that that would be premature at the moment?‑‑‑Correct.

PN270

All right, thank you. Nothing further.

PN271

VICE PRESIDENT CATANZARITI: Thank you. Mr Ferguson.

PN272

MR FERGUSON: Nothing arising.

PN273

VICE PRESIDENT CATANZARITI: Thank you, you're excused.

<THE WITNESS WITHDREW [10.18 AM]

PN274

VICE PRESIDENT CATANZARITI: Do we have the next witness or are we going to take a short adjournment?

PN275

MR FERGUSON: The next witness is in Brisbane so we may need a short adjournment while that's set up.

*** SARKIS JOSEPH AKLE XXN MR DOWLING

PN276

VICE PRESIDENT CATANZARITI: We'll take a short adjournment while that happens.

SHORT ADJOURNMENT [10.18 AM]

RESUMED [10.23 AM]

PN277

MR FERGUSON: The next witness is Mr Graham Thatcher.

PN278

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

PN279

MR THATCHER: It's Graham Thatcher, (address supplied).

<GRAHAM THATCHER, SWORN [10.24 AM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [10.24 AM]

PN280

MR FERGUSON: Good morning, Mr Thatcher?‑‑‑Good morning.

PN281

Have you prepared a statement for the purpose of these proceedings?‑‑‑I have.

PN282

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

PN283

Is that statement some 62 paragraphs in length?‑‑‑Yes, it is.

PN284

And dated the 23rd of the 2nd 2018?‑‑‑Correct, yes.

PN285

Can I take you to paragraph 9 of that statement? You there say, 'Ella Bache salons also sell a range of skincare, sun care and training products for men and women.' Have you found that?‑‑‑Yes.

PN286

Did you want to make any amendments?‑‑‑I'd like to add some additional words to that statement. At the end of that statement I'd like to add, 'as well as cosmetics.'

PN287

Thank you. Can I take you to paragraph 27? Have you found that?‑‑‑Yes.

*** GRAHAM THATCHER XN MR FERGUSON

PN288

Did you want to make any amendments to the second sentence?‑‑‑In the third line between the words 'profitable' and 'during,' could you please add 'on some Sundays?'

PN289

Yes?‑‑‑And in addition to that, on the last line of that paragraph, could you please change '$420' to '$559?'

PN290

Yes.

PN291

Can I then take you to paragraph 58?‑‑‑Yes.

PN292

Do you want to make any amendments to that paragraph?‑‑‑On the first line, could you insert the word, 'all,' between 'rostering' and 'employees?'

PN293

Yes?‑‑‑And on the second line, before the word 'employees,' could you insert the word, 'some?'

PN294

Yes, just after the brackets?‑‑‑Correct.

PN295

Is the statement otherwise true and correct as at the date it was prepared to the best of your knowledge?‑‑‑It is.

PN296

I'd tender that.

PN297

VICE PRESIDENT CATANZARITI: Exhibit 2.

EXHIBIT #2 WITNESS STATEMENT OF GRAHAM THATCHER DATED 23/02/2018, AS AMENDED

PN298

MR FERGUSON: With leave, just one question in relation to updating a point. I'll take you to paragraph 5, Mr Thatcher?‑‑‑Yes.

PN299

You there say you're also the vice president, Hair & Beauty Australia. Are you still the vice president?‑‑‑I stepped down from that board in December 2018.

PN300

Could I take it then that you don't perform your role described in paragraph 6?‑‑‑That is correct.

*** GRAHAM THATCHER XN MR FERGUSON

PN301

Thank you. The witness is available for cross‑examination.

PN302

VICE PRESIDENT CATANZARITI: Thank you. Mr Dowling?

PN303

MR DOWLING: Thank you, your Honour.

CROSS-EXAMINATION BY MR DOWLING [10.27 AM]

PN304

MR DOWLING: Mr Thatcher, can I ask you some questions about the last piece of evidence you gave about standing down as vice president? Is it still correct that you commenced on the board in November 2015?‑‑‑Yes, it is.

PN305

And you commenced as vice president in November 2017?‑‑‑Yes, it is.

PN306

Should we understand from your evidence that you stood down from the board and from your vice president position in December '18?‑‑‑Yes, correct.

PN307

Are you able to say why you stood down?‑‑‑It was a timing issue for me. I was struggling with my - to run my business and provide this voluntary role on the board, and so after four years I decided that it was time for me to step away.

PN308

Could you assist me with one other matter in respect of your role? In the year ending 30 June 2018, the information I have is that there were 864 members of the association. Does that accord with your recollection?‑‑‑Yes. It was somewhere in that order; that's my recollection, yes.

PN309

I'll take you back, test your memory a little. In the year ending June '16 it was 1077?‑‑‑June 2017?

PN310

June 2016, sorry?‑‑‑June 2016? Look, I wouldn't be in a position to give you the answer to that question from memory.

PN311

Can you tell me this from memory? Can I suggest to you that the membership number declined each year from 2016 to 2017 to 2018?‑‑‑The membership of the HABA organisation was, you know, each year it fluctuates from where there is a number of members that join, a number of members that don't renew their membership - it's a floating proposition from year‑to‑year.

*** GRAHAM THATCHER XXN MR DOWLING

PN312

I'm asking you about total numbers, and can I suggest to you that total numbers - taking into account some that leave and some that join - that total numbers declined each year from '16, '17 and '18?‑‑‑Look, I don't have that information to hand at this stage, I'm sorry.

PN313

And you can't recollect whether that was the case or whether there was any discussion about it?‑‑‑My recollection is that our membership was around about the 900 mark when I stepped down.

PN314

Was there any discussion about the declining membership of the association during your time as vice president?‑‑‑There was often discussion at board meetings about membership and how we managed membership, what marketing we took around membership. It was a discussion point that was had, and often, at board meetings, yes.

PN315

Can you listen and answer my question? It's more specific than that, Mr Thatcher. Was there a discussion about the fact that the membership numbers were declining during your time as vice president?‑‑‑I would imagine there would have been, yes.

PN316

Are you saying you don't remember the detail of that discussion?‑‑‑That's correct.

PN317

Were you one of those officeholders that was responsible for the decision to commence this application?‑‑‑Sorry, could you just repeat the question?

PN318

Were you one of the officeholders that was responsible for the decision to commence this application?‑‑‑Yes, I was.

PN319

Was part of the reason for commencing the application the survey that had been carried out by the association of its membership?‑‑‑Yes, I believe so.

PN320

And is it correct that that survey in none of the questions asked the members whether they supported the cuts or opposed the cuts?‑‑‑I have no recollection of what specifically the questions in the survey were.

PN321

Do you recall a discussion about the survey?‑‑‑Not specifically. We would have discussed it at the time, but I don't recall the details of that discussion, no.

*** GRAHAM THATCHER XXN MR DOWLING

PN322

Perhaps to be fair to you, I'll ask you whether you recall any discussion about a decision not to include in the questions the question that asked the members whether they support or oppose the penalty rates cuts?‑‑‑No, I have no recollection about that, no.

PN323

And you're not able to provide the Commission with any reason why that question was not asked of the members?‑‑‑No. I don't have a recollection of that specifically, no.

PN324

Can I ask you about the staff make‑up of the two salons that you operate, or that you give evidence about? Firstly, the salon in the Brisbane CBD, your evidence is that it has six employees?‑‑‑At the time that I've made this statement, that would have been correct, yes.

PN325

Can you tell the Commission what the number of employees is today?‑‑‑It would still be in that order of six.

PN326

In that order? Are you not able to say precisely?‑‑‑We have around about 22/23 staff in total across the two salons. They vary from full‑time to part‑time to casual. I don't have that information to hand as to exactly how many are there right now.

PN327

Can I ask you - - -?‑‑‑But the figure of six, two part‑time and four casual, is about the number that we would normally have online there, yes.

PN328

As the result of your statement, we ask those who are representing you to give us some information about the classification levels that those staff are at?‑‑‑Yes.

PN329

I want to ask you about that. As I understand it, in respect of those six, five of them are at level 6 or above - not above, that's the highest?‑‑‑They're at level 6, yes. Five would be at level 6.

PN330

And one is at level 4?‑‑‑Yes. So the majority of our staff are paid on level 4 or level 6. I think at the moment we currently only have one that would be at a lower level than that level, level 3 from memory.

PN331

And as you understand the way the classifications operate in the award, a level 3 employee will have a Cert III qualification, a trades qualification?‑‑‑Yes, that's correct. This particular staff member has not completed - that I have on a level 3 - has not completed her training at this stage.

PN332

And all of those at level 4 will have a Cert IV qualification?‑‑‑Correct.

*** GRAHAM THATCHER XXN MR DOWLING

PN333

So should we understand that all of your employees at level 4 and level 6 have a Cert IV qualification?‑‑‑As a minimum, yes.

PN334

As a minimum?‑‑‑Yes.

PN335

Some have additional qualifications?‑‑‑Yes.

PN336

What are those additional qualifications?‑‑‑Some would be at the higher level of Diploma, and there would be some that have done additional training as well.

PN337

But just so we can be clear, all but one have a Cert IV, and are you able to say how many have a Diploma as well, on top of that?‑‑‑Not without going back and reviewing my records, no.

PN338

Can you say approximately, Mr Thatcher?‑‑‑There would be at least half, possibly more, that would have a Diploma.

PN339

There is the ability for employees to also - to do not only a Cert III, not only a Cert IV, and not only a Diploma, but an Advanced Diploma, you're aware of that?‑‑‑Yes.

PN340

Are you able to say what number, if any, of your employees have an Advanced Diploma?‑‑‑No, we don't have any - to my knowledge, we don't have any that are on an Advanced Diploma, no.

PN341

Just so I can understand your evidence to make sure I've got it right, all but one are Cert IV qualified, and of those Cert IV qualified, approximately half also have a Diploma?‑‑‑Correct.

PN342

And we're talking the total numbers across the two salons, correct?‑‑‑Correct.

PN343

Can I just break down the Carindale salon, because we did that as best as we were able with respect to the Brisbane CBD salon? You identify in your statement at that time there were 14 employees at the Carindale salon?‑‑‑Yes.

PN344

Is that approximately the number there are today?‑‑‑Look, at the moment my recollection is that we currently have around 22 people on our payroll.

*** GRAHAM THATCHER XXN MR DOWLING

PN345

Across both salons?‑‑‑Yes.

PN346

Should we understand from that that the number has grown from the 20 that you identify in this statement?‑‑‑Yes.

PN347

Are you able to say the hourly rate that you pay your level 6 employees?‑‑‑We pay them at the award rate.

PN348

And is that case whether they have a Cert IV and Diploma, or just a Cert IV?‑‑‑So we pay them on the basis of the level of treatment that they currently perform. So if they are performing at the advanced treatment levels then they get paid at the level 6. If they're not performing at that level then they get paid at the level 4.

PN349

To be clear, you pay them at the level 6 depending on what it is they do rather than what qualifications they hold?‑‑‑Correct.

PN350

Are you aware that the award provides that an employee should be paid at a level 6 if they hold a Diploma, regardless of what it is they do?

PN351

MR FERGUSON: I object to that.

PN352

THE WITNESS: Well - - -

PN353

VICE PRESIDENT CATANZARITI: Don't answer the question yet. Thank you.

PN354

MR FERGUSON: My learned friend is putting a position that is not the case under the award, and there's a risk that that will mislead the witness.

PN355

VICE PRESIDENT CATANZARITI: Yes.

PN356

MR FERGUSON: Clause 16 deals with the classification and the procedure, and does not turn on simply what qualifications the employee might have.

PN357

VICE PRESIDENT CATANZARITI: Clause 16?

*** GRAHAM THATCHER XXN MR DOWLING

PN358

MR FERGUSON: Yes, and specifically clause 16.2. In any event, this is a question of law, and it seems the evidence has already dealt with this issue. Counsel can put submissions about how the award should interpret it.

PN359

VICE PRESIDENT CATANZARITI: Yes, I think (indistinct) or how it should be interpreted, rather than through this witness, Mr Dowling.

PN360

MR DOWLING: Well perhaps - I am entitled, in my submission, to at least clarify how it is that Mr Thatcher does it, and then we can make a submission as to whether he's in breach of the award or not.

PN361

VICE PRESIDENT CATANZARITI: Yes, or you can ask him if he does it, yes.

PN362

MR DOWLING: You decide whether someone is paid a level 6 based on the procedure that they perform, correct?‑‑‑Yes.

PN363

And if someone holds a Diploma but they are doing a task that you say might otherwise be done by a level 3 employee, you would not pay them at the level 6 rate?‑‑‑No, by a level 4 employee.

PN364

Yes?‑‑‑So we would pay them at a level 4 based on the fact that they are performing lower level treatments.

PN365

So despite whether they hold a Diploma or not, if they are doing a lower level treatment you would pay them at a level 4, and only at the times they perform a higher level treatment do you pay them at a level 6?‑‑‑No. If they are qualified and are performing the higher level treatments on an ongoing basis, they will get paid at the level 6 rate. As soon as they're qualified - as soon as they have been qualified and have receiving the training to do the higher level rates, and they're signed off by their manager as being able to perform those treatments, then they move from level 4 to level 6.

PN366

But if they are able and qualified to do the level 6 work, but for whatever reason on a particular day they perform what you might describe as level 4 treatments, you would pay them at level 4?‑‑‑No. That's not correct, no. If they have been signed off by their manager as being qualified to do level 6 treatments, regardless of what treatments they do they get paid at level 6 on an ongoing basis.

PN367

Well that's not consistent with your evidence a moment ago, Mr Thatcher, is it?‑‑‑It's perfectly clear as far as I'm concerned.

*** GRAHAM THATCHER XXN MR DOWLING

PN368

I didn't ask you that. I asked you whether it was consistent with the evidence you gave a moment ago, Mr Thatcher?‑‑‑I think it's consistent, yes.

PN369

You said to me a moment ago that even if you held a Diploma, but if you did a lower level treatment, you would be paid at the rate applicable to that lower level treatment, didn't you?‑‑‑Well I think you've misunderstood what I've said, or - either that or I haven't explained myself correctly. So let me clarify what I am trying to tell you, and that is that when a therapist is signed off as having been assessed and authorised to do higher level treatments, then that therapist goes to level 6 pay regardless of the types of treatments that they are performing, because on any given day a therapist will do a variety of treatments, whether it be lower level or higher level, on any given day. But as long as they have been signed off as having been trained and are - can competently perform higher-level treatments then we pay them at the level 6 rate.

PN370

MR DOWLING: For every hour of work they perform?‑‑‑Yes.

PN371

At any time of the day, any day of the week?‑‑‑Yes.

PN372

When you say, 'signed off,' can you clarify that for me, please? If someone comes to you and says, 'I hold a diploma in beauty therapy or equivalent,' does that engage level 6 or do they have to do something else?‑‑‑When we hire a new therapist they go through a trades test with us, with our managers. If they are competent to perform the higher level, and let me just say that when a therapist is fresh out of college with a diploma they are very rarely competent in performing higher-level treatments as assessed within our salons. So three is always a period of time when they require additional training within our own salons to ensure that they can perform the treatments to our standards.

PN373

Are you saying - - -?‑‑‑Once they've been signed off by their manager, under that basis, then we will move them from level 4 to level 6.

PN374

So you don't move them to - - -?‑‑‑Then they're paid on an ongoing basis at level 6.

PN375

So as I understand it, you don't move them to level 6 upon them holding a diploma. You move them to level 6 when they hold a diploma and also when you are satisfied that they have the requisite skills. Is that correct?‑‑‑That is correct.

PN376

So I take it - - -?‑‑‑Can I add one further point to that?

*** GRAHAM THATCHER XXN MR DOWLING

PN377

No?‑‑‑Can I - - -

PN378

No, can you listen to my questions, please, Mr Thatcher? I take it then at various stages you may have had employees who hold a diploma but because you hadn't signed off on them or your managers hadn't signed off on them, you were paying them at level 4. Is that correct?‑‑‑That is correct.

PN379

Thank you?‑‑‑I would still like to clarify that point, please, if I can.

PN380

No, you just answer my questions, Mr Thatcher.

PN381

VICE PRESIDENT CATANZARITI: Well, Mr Dowling, this - - -

PN382

MR DOWLING: My friend can re-examine if he likes.

PN383

VICE PRESIDENT CATANZARITI: - - - in these penalty rates matters, the bench likes to be assisted with information so I will ask the question.

PN384

MR DOWLING: Certainly - I can't stop your Honour from asking.

PN385

VICE PRESIDENT CATANZARITI: Exactly - I'll seek the clarification because I remind the parties throughout these matters that we are trying to get information out and it's not helpful when a witness wants to clarify something and we don't get it. What would you like to clarify?‑‑‑What I was going to say is when the new modern awards were first introduced into our system, and the wording of the award is quite ambiguous - I'm aware of the point that the gentleman is trying to make to me and that is that the point in the award where it says if you - you're entitled to be paid at a level 6 if you hold a diploma but we sought clarification from this in the very early days of the modern award through the Fair Work Commission staff. We were able to get clarification at the time that the employees are paid at that level when they are able to perform those levels that would normally be associated with a diploma. Now, we clarified that at the time with the Fair Work Commission staff. We've been paying on that basis ever since and we believe we are compliant with the award.

*** GRAHAM THATCHER XXN MR DOWLING

PN386

DEPUTY PRESIDENT ASBURY: So, Mr Thatcher, can I just understand - so a new employee starts and they have a diploma and there is a range of treatments so some are higher-level treatments, some are treatments that can be done by an employee at level 4. You would start them out doing the treatments at level 4 and then you would assess them doing the higher-level treatments and if you say that they're competent then they are allowed to do level 6 treatments and you pay them for all the time they work at the level 6 rate but you don't put them dong any of those treatments until you have assessed them as being competent? Is that the position?‑‑‑That is correct.

PN387

Yes?‑‑‑That is correct and it's also the case that some new employees, when they join our organisation, are competent from day one and when we we've assessed that then we're happy to pay them at that higher level, at the level 6, and we do. So it's - generally speaking it is those therapists that are fresh out of college that are not yet competent in performing the higher-level or high-performing treatments that we do and we have a standard in our business that we need to maintain to ensure that we minimise complaints for not getting the correct treatment or not getting the service that was expected. So we've got to maintain that level of service and so it is - and we provide internal training to those employees to get them to the higher-level as soon as possible. It's in our benefit to get them to the higher level because as soon as they are - when they get to that point, they're actually performing at a higher level. So there is an incentive for us as employers to actually do that; to actually train them to get them to that higher level and once they are assessed at that point, if they have a diploma we will then pay them at that level.

PN388

I understand. Thank you.

PN389

MR DOWLING: Just one matter of clarification from the answer you gave to the Deputy President - those employees that you say are not able to do level 6 treatment immediately, what is the average period of time that those employees take to get from their level 4 salary to their level 6 salary?‑‑‑I don't - I've not done any assessment on that. I couldn't give you an accurate determination of that but - - -

PN390

Who does that assessment, Mr Thatcher?‑‑‑It depends on the individual. It would vary from individual to individual. It would also vary on, you know, it depends on the - how engaged the therapist is, the employee is, and what we try to do is actually encourage them and incentivise them to get to that higher level because we make it very clear that we're happy to move them from level 4 to level 6 as soon as they achieve those levels. So there is an incentive for us but there is an incentive them as well and we provide them with that training internally at our cost.

PN391

Who performs the assessment, Mr Thatcher, if it's not you?‑‑‑It's not me. It would be the managers of the salon who are senior therapists. Well, they're senior managers in our business.

*** GRAHAM THATCHER XXN MR DOWLING

PN392

When you say managers, they are also qualified with a diploma or a cert III?‑‑‑Minimum of a diploma.

PN393

Right?‑‑‑And they would be - they would have multiple years of experience under their belt as well.

PN394

And you're not able to say the minimum period of time that it would take someone to go from level 4 to level 6 - or the maximum?‑‑‑Look, you know, it varies from therapist to therapist and to be honest I've not done that analysis, to be - I couldn't give you an answer on that.

PN395

Might it take - we're talking a matter of months or years?‑‑‑I - - -

PN396

MR FERGUSON: I object to this. I don't see the relevance?‑‑‑It could be - - -

PN397

VICE PRESIDENT CATANZARITI: Just one second. What's the objection?

PN398

MR FERGUSON: I fail to see the relevance of this at all. Under the award, people can sit at either classification for years.

PN399

VICE PRESIDENT CATANZARITI: That's the legal submission but Mr Dowling is challenging that. I'll allow the question.

PN400

MR DOWLING: Do you want me to repeat the question, Mr Thatcher?‑‑‑Yes, please.

PN401

Might it be a matter of months or will it be a matter of years?‑‑‑No, it would be a matter of months.

PN402

But you're not able to say how many?‑‑‑It could be one month if a therapist is - you know, is - can prove that she can do those levels of treatments competently. But it might be - it could be - or it could be, you know, it could vary. I can't give you an exact - - -

PN403

Could it be six months?‑‑‑It could be.

*** GRAHAM THATCHER XXN MR DOWLING

PN404

I think we got to this point because I was asking you some questions about the hourly rates. Those employees that make it to level 6 - the rate that you pay those employees is the award rate, correct?‑‑‑That's correct. There are a small number of our employees that we pay above award. But it's not many; I think one or two at the moment.

PN405

When you say - one or two out of the 22?‑‑‑Yes.

PN406

So should we understand for the vast majority, if they are level 6, they are paid the award rate that is prescribed in the award?‑‑‑That's true except for our managers. Our managers are paid above the award.

PN407

Are they the one or two you're talking about?‑‑‑No, no - I'm talking about therapists. We have one or two therapists that would be paid above the award. They would be long-term employees that have been with us for some time - - -

PN408

I see?‑‑‑ - - - and that are higher producers.

PN409

Perhaps let's again, as best we're able, deal with the vast majority. The vast majority of those employees on level 6 are paid the award rate for a level 6?‑‑‑That is correct.

PN410

Does it also follow that the vast majority of employees on level 4 are paid the award rate for level 4?‑‑‑That is correct.

PN411

How are they paid? Are they ever paid in cash?‑‑‑No, they're paid through bank transfer.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 412-427

PN428

Should we understand that whilst there is some product sold, that the vast majority of time of your employees is actually providing the service, when we're looking at the time they spend?‑‑‑Yes.

PN429

All right?‑‑‑So we have managers who run the business from the front of house. We have therapists who are doing the treatments in the back of house.

PN430

If we can focus on the therapists for the moment, the vast majority of the time spent by them actually working, and for which they are paid, is time spent providing the services, correct?‑‑‑That's correct.

PN431

All right. For them, any products that they might sell is an add-on to that service that they're provided?‑‑‑Yes, it is.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 432-448

PN449

I tender those two documents.

PN450

VICE PRESIDENT CATANZARITI: Exhibit A.

EXHIBIT #A PROFIT AND LOSS STATEMENTS FOR THATCHER TRUST

PN451

MR DOWLING: I'm happy for them to be - - -

*** GRAHAM THATCHER XXN MR DOWLING

PN452

VICE PRESIDENT CATANZARITI: As a bundle?

PN453

MR DOWLING: - - - as a bundle, yes.

PN454

VICE PRESIDENT CATANZARITI: Yes, exhibit A.

PN455

MR DOWLING: Thank you very much. Can I just return to the question of your staff? You accept - perhaps we'll start with the Cert IV qualifier, the level 4 staff - that your staff are highly-qualified?‑‑‑Could you repeat the question?

PN456

Do you accept your staff are highly-qualified?‑‑‑Our staff are qualified - I'm not quite sure I understand the question. They're qualified as per what they've - you know, what their qualifications provide. Any additional assessment of them would happen through training and ongoing training that we provide within our business. There is no formal qualification for that ongoing training. But we do try to maintain a high standard. We - the Bache name as a good name for high standard of performing of treatments. We perform well within the Bache network. We do try to maintain a high standard of service and treatment.

PN457

Do you have any difficulty recruiting and retaining staff?‑‑‑No. We have - we don't have much difficulty in retaining staff. We do have difficulty in recruiting because there is - it is very difficult to find experienced staff. It is very difficult to do that.

PN458

Well, if you are looking for an experienced Cert IV staff, you are going to pay them $23.12 an hour, as at today, correct?‑‑‑We generally start off looking for diploma-qualified staff, so that is what we're looking for, and if we can't find diploma staff then we will end up - you know, we will look at whatever, whoever else is applied and if they - if we assess that they're suitable, then we'll take them on. We pay them at the award rate.

PN459

So someone who has completed a Certificate III and a Certificate IV or a both, and has a diploma, you would pay them at $24.66?‑‑‑If they're - we pay - if we've assessed them at level 6, we pay them at level 6. If they're - if they have a Cert IV then we'll pay them at Cert IV rates.

PN460

I'm suggesting to you that the level 6 rate is $24.66?‑‑‑Well, if that's the rate then that's what we're paying them at. I couldn't - I couldn't tell you what that rate is off the top of my head.

*** GRAHAM THATCHER XXN MR DOWLING

PN461

Would it be correct to say that one of the reasons you have some difficulty in recruiting experienced staff is because of all that experience and at the end of all that experience, you are paying them $24.66?

PN462

MR FERGUSON: I object to that. He's just asking the witness to speculate on the reason why people may or may not apply for a job. He can't speak to the intents of those potential applicants. It's not evidence.

PN463

VICE PRESIDENT CATANZARITI: Look, we're not going to allow that question in that form. He's paying the award rate. You can make submissions about it separately.

PN464

MR DOWLING: Thank you, your Honour. I take it your staff are valuable to you?‑‑‑They are.

PN465

They are one of if not your most valuable resource?‑‑‑Of course.

PN466

It's important to consult with them about the operation of your salons?‑‑‑We have regular staff and team meetings.

PN467

And as part of those meetings, have you spoken to your staff about your efforts as part of this application to reduce their Sunday wage?‑‑‑I have not.

PN468

As your most valuable resource, don't you think it's important that you speak to them about your intention and desire to try and reduce their wage on a Sunday?‑‑‑What is your implication?

PN469

Can you answer my question, please?‑‑‑Can you repeat it?

PN470

As one of your most important resources, don't you think it's important that you talk to them about your intention to reduce their wage on a Sunday?‑‑‑This has nothing to do with their performance within the salon. This is something totally different. This is about - it has nothing to do with them from this perspective. I would also add - - -

*** GRAHAM THATCHER XXN MR DOWLING

PN471

Well, it does have something to do with them, Mr Thatcher, doesn't it, because they are about to, if you are successful, suffer a reduction in the wage they earn on any Sunday. Don't you think that means it will affect them?‑‑‑Well, if you let me finish with my answer I would have told you that we in our - my wife and I, who are the directors of the business, have already had discussions about this and our decision is that our current employees that are currently being paid at the - at the penalty rates as they exist, we will continue to pay them at that rate if the - if it is successful and as new employees come on, they will be paid at the new rate and so we do value our employees. We will continue to look after them as we always do.

PN472

So you will - if your staff numbers do not change, and this application is successful, you will continue to pay - - -

PN473

VICE PRESIDENT CATANZARITI: Just - if they're existing staff they're - it's not staff numbers. Existing staff do not change.

PN474

MR DOWLING: Yes, thank you - if existing staff does not change, and this application is successful, you will continue to pay at the same labour costs that you are presently paying?‑‑‑We will - numbers will change over a period of time.

PN475

No, no, just listen to my question, please, Mr Thatcher. I'm putting a scenario in which I'm putting to you the scenario in which your staff numbers do not change. The existing staff you have - - -?‑‑‑(Indistinct).

PN476

Let me finish please, Mr Thatcher.

PN477

VICE PRESIDENT CATANZARITI: Mr Thatcher, just wait for the question to be put.

PN478

MR DOWLING: I'm putting to you a scenario where the existing staff continue as they are as at today. You accept that based on the evidence you've just given, your labour costs will continue at exactly the same rate, correct?‑‑‑No, I don't accept that.

PN479

Let me do it piece by piece then. Do I understand you to say that for all existing staff you will not reduce their penalty rates if they continue in employment?‑‑‑What we will look at is that our good performers will stay at the same rate and over a period of time, whether our numbers change or not, there will be a turnover of staff, so while our total numbers may not necessarily change, staff come and go on a regular basis and what we will do is as new employees come onboard they will be paid at the - what the award rate is at the time.

*** GRAHAM THATCHER XXN MR DOWLING

PN480

Well listen again to my question, Mr Thatcher. I'll ask it a second time. I'm putting to you a scenario, let's say a change is made to penalty rates despite our opposition, as of 1 January 2019 and for the entire month of January of ‑ sorry, 2020, yes.

PN481

VICE PRESIDENT CATANZARITI: Make it 20, I think, yes.

PN482

MR DOWLING: Thank you. Let's say there's a penalty rate cut, despite our opposition, taking effect on 1 January 2020 and I am putting a scenario to you that there is no change for the entire month of January in your staff. No one comes, no one goes. The staff that was there as of 1 January remains doing exactly the same duties. Is it your evidence that you will pay all of those employees the penalty rate that applied prior to 1 January for that month or not?‑‑‑No, we will pay the staff that we consider to be good performers at the same rate and those that are performing at a lower level will be paid at the new award rate.

PN483

At least for some of your employees, they will suffer a reduction in their earnings on a Sunday?‑‑‑Yes.

PN484

Have you spoken to those employees and have you told them 'Look, what I am trying to do as part of this application, you need to know and be aware, you will suffer a reduction in your Sunday penalty rate'?‑‑‑I have not spoken to them about it because it's - why worry them about it if it's not going to - if it doesn't happen? I don't know if this is going to be successful or not. What's the point?

PN485

Should we understand from that that even if it is successful, you might not change your operation and you might not change what you pay that staff member?‑‑‑No, I've already testified to that that there will be changes to our ‑ to those who are performing at a lower level - - -

PN486

But you are not able to - - -?‑‑‑and over a period of time we will make savings in our business.

PN487

You are not able to say how many staff will stay on the old rate and how many staff will go to the new rate?‑‑‑I would think ‑ ‑ ‑

PN488

You'll decide that at some later point?‑‑‑I would think it'll be - - -

PN489

Sorry, we're - - -?‑‑‑I would think it'd be somewhere around the 50 per cent mark would stay at the same rate.

PN490

Are you - - -?‑‑‑Fifty per cent of staff.

*** GRAHAM THATCHER XXN MR DOWLING

PN491

You're just speculating for the moment, you're not sure?‑‑‑I - we haven't done those numbers, no.

PN492

You haven't performed that assessment, all right?‑‑‑No.

PN493

Have you performed an assessment of what you currently pay in penalty rates on any Sunday? The penalty rate component on any Sunday?‑‑‑I have.

PN494

Have you performed an assessment of what you would pay in penalty rates under the proposed changes sought in this application?‑‑‑No, I have not done that assessment.

PN495

You're not able to compare the before and the after?‑‑‑I have not done the assessment on the second - on the - what the proposed changes are.

PN496

Can you answer my question, please. You're not able to compare the before and after?‑‑‑No.

PN497

Thank you. One of the things that you say in your evidence is that you might change the operating hours at your two stores or salons, correct?‑‑‑We would consider that, yes.

PN498

Is that something that you haven't yet made a decision about but it's just - it might or it might not happen?‑‑‑So what we've talked about is that we would start - - -

PN499

Sorry, can I just stop you. I'm sorry to stop you but I just need to be clear. When you say what you've talked about, do you mean you and your wife or do you mean you and your staff?‑‑‑Yes. My wife and my managers.

PN500

All right, okay?‑‑‑So what we've talked about is that we would be in a position where we would be able to put on some additional staff for the current hours and if we can see some benefit in that, then we would then look to extend those hours. The shopping centres are currently open from 9.00 until 5.00 on a Sunday, we're open from 10.00 until 4.00.

PN501

Can I show you another document, please. There's two documents, they're both headed Opening Hours for the assistance of the person who's handing you the documents. I've got copies for the members of the Commission. If you can have a look at the one that has Myer Centre in the top left hand corner first?‑‑‑Yes.

*** GRAHAM THATCHER XXN MR DOWLING

PN502

It has Centre Opening Hours and it says 10.00 to 5.00?‑‑‑It would appear I've made a mistake.

PN503

All right, and if you go to the next document which is Carindale and you go over the page and you'll see towards the very bottom there's the Sunday, 1 September, the next coming Sunday, and it has 10.00 until 5.00 there as well?‑‑‑Yes, it would appear I've made a mistake by one hour on each of those responses.

PN504

Can I suggest to you that where you say you would extend your store hours to 9.00 to 5.00 that that's not right and that the most you could do is extend your store hours from 10.00 to 4.00 to 10.00 to 5.00?‑‑‑That is correct.

PN505

Does that mean all of those discussions you've had you would need to have again?‑‑‑It's a minor mistake. It's a ‑ we're only talking one hour.

PN506

Well we're only talking one hour out of two. We're talking ‑ it's 50 per cent of the hours you say you'd open. I'd say that's a rather large mistake?‑‑‑But in reality ‑ well it's one hour.

PN507

But - - -?‑‑‑If you were - if you talk about it in terms of percentages, it seems bigger. In real time it's one hour. It's a small error on my part.

PN508

Do you - - -?‑‑‑I accept that I made an error. I apologise for that.

PN509

But one hour is not significant across the whole operation of your stores, is that what you're saying?‑‑‑What I'm saying is, to go back to your previous question, is that we will - if there's a change, that we will start by looking at putting more staff on on a Sunday and we will then look to see whether it's possible for us - profitable to us to extend our opening to the opening hours of the shopping centre.

PN510

When you talk about - sorry.

PN511

VICE PRESIDENT CATANZARITI: Just before you move on, I'm not sure that's a fair reflection of the Carindale document because it says 'Many stores operate outside the hours below' so he doesn't appear to be proscriptive as it may necessarily be.

PN512

MR DOWLING: Well - - -

*** GRAHAM THATCHER XXN MR DOWLING

PN513

VICE PRESIDENT CATANZARITI: It seems to be indicative.

PN514

MR DOWLING: I'm certainly happy to ask Mr Thatcher. Can I suggest to you that the opening hours of the Carindale store - sorry, of the Carindale shopping centre is as it is reflected here, 10 am until 5 pm?‑‑‑That's correct.

PN515

That the - - -?‑‑‑That would appear to be correct.

PN516

The centre opening hours of the Myer Centre is as it appears there, 10 am until 5 pm, correct?‑‑‑Yes.

PN517

That if you were to extend hours, you would not extend beyond 10.00 to 5.00 in respect of both stores?‑‑‑Under normal circumstances, that would be correct. There would be peak times when it might be possible for us to extend our hours, like Christmas trading for argument's sake, and you'll find that the centres, while you picked that ‑ you've looked obviously at their website and you've given your day, for whatever day this was that you've looked at, 23 August, if you - what you will find is there'll be extended hours in peak times such as Christmas trading.

PN518

Well let's put aside Christmas for the moment. Can I suggest to you that even if in respect of Carindale you might be able to open outside the centre hours, there wouldn't be much utility in you opening at 9 am if the centre opened at 10 am, correct?‑‑‑No, that's not always the case. On Saturdays, we actually open - we actually take appointments earlier than the centre is open. The ‑ those hours there show the hours that - the normal trading hours for most stores but you'll find that the ‑ there's a lot of cafes and a lot of - and all the supermarkets are open earlier than that and we have at different times on - during busy periods such as Saturdays, we've taken appointments and we open earlier than what these trading hours, of such, show.

PN519

Have you spoken to your staff about the intention to extend your trading hours?‑‑‑No.

PN520

Again, isn't something that that - isn't that something that they should be aware of, something that directly affects them?‑‑‑Well at the appropriate time we will discuss it with them.

PN521

What's the appropriate time, Mr Thatcher?‑‑‑At the end ‑ ‑ ‑

*** GRAHAM THATCHER XXN MR DOWLING

PN522

When the orders already been made and it's going to happen?‑‑‑Well with regard to opening hours, there's no ‑ there's not going to be any change to the opening hours under the orders. These are things that we will consider if we can do and still - and be profitable.

PN523

I see. It may be, even with any reduction in penalty rates, one of the possibilities at least is that you trade at the same hours?‑‑‑And one of them is that we'll trade extended hours as well.

PN524

Yes, they're both just possibilities at the moment?‑‑‑Well that's true. We still have to do that analysis, that's right.

PN525

In terms of that analysis, I take it from what you said earlier you don't really know at this stage what the effect of any penalty rate reduction would be because you haven't selected which employees you're going to pay the new rate and which employees you're going to pay the old rate, correct?‑‑‑Yes. We have a fair idea. We have a fair idea at this stage because we know who our - we already know who our good performers are and our poor performers.

PN526

But you can't say with any precision at the moment as to what you will or won't say, correct?‑‑‑That's true. I haven't done that analysis on that information yet.

PN527

All right.

PN528

VICE PRESIDENT CATANZARITI: Are you tendering this document, Mr Dowling?

PN529

MR DOWLING: Yes, your Honour.

PN530

VICE PRESIDENT CATANZARITI: Exhibit B for the two documents.

EXHIBIT #B TWO DOCUMENTS TITLED OPENING HOURS

PN531

MR DOWLING: Just a matter of formality, Mr Thatcher. You've given some evidence about competition that you say your salons face. Should we understand you have no tertiary or other qualifications in economics or labour economics or competition economics?‑‑‑No. I have no formal qualifications in economics. Just 30 years experience of business.

*** GRAHAM THATCHER XXN MR DOWLING

PN532

In your role, just on that, Mr Thatcher, in your role as vice president when there was a discussion about this application did you discuss with the members of the board about obtaining expert evidence about levels of competition?

PN533

MR FERGUSON: I object to that. That's going into discussions that if Mr Thatcher was present would have been privileged discussions potentially.

PN534

MR DOWLING: Privileged on what basis?

PN535

MR FERGUSON: On the basis that the question was asked in a very broad manner and we were giving legal advice about ‑ ‑ ‑

PN536

VICE PRESIDENT CATANZARITI: I don't think you made the foundation out for privilege. We'll allow the question and see where it goes.

PN537

MR DOWLING: Do you want me to repeat the question, Mr Thatcher?‑‑‑Yes, please.

PN538

When you were the vice president and there was a discussion about this application, was there any discussion about obtaining expert evidence about levels of competition in the hair and beauty industry?‑‑‑I don't remember the specific discussion but I am assuming there would have been some discussion about it.

PN539

There was - - -?‑‑‑I don't have a direct recollection of a specific conversation.

PN540

Can I - it's safe to assume then, given what we are presented with in this application, that there was a decision made not to obtain any expert evidence of that kind?‑‑‑As I said I can't recall any specific discussion about that.

PN541

All right, thank you. You give evidence that at each of your salons there is no enterprise agreement, correct?‑‑‑Yes, correct.

PN542

You are aware that it would be open to you to negotiate an enterprise agreement either for each of or both of your salons?‑‑‑It's not something that I have any specific knowledge about going to an enterprise agreement. It's not an area of expertise that I have so we have not pursued that.

*** GRAHAM THATCHER XXN MR DOWLING

PN543

As the vice president of the association, isn't there some discussion about enterprise agreements that might be negotiated by or on behalf of members of the association?‑‑‑I have no - I can't recall any discussion about enterprise agreements with members.

PN544

All right, well - - -?‑‑‑And it's not necessarily - that was not something that a member would normally disclose to the association.

PN545

All right. Can I just ask you this though, are you aware of the ability for you to negotiate an enterprise agreement? That that option is open to you?‑‑‑I'm aware that there's an option of an enterprise agreement.

PN546

Are you aware that those negotiations could include the reduction of penalty rates provided the employees are left better off overall? Is that something you're aware of?‑‑‑I am aware of that.

PN547

All right, and knowing those things, is there any reason that you have not explored, in an attempt to change the penalty rates that are payable, such negotiations?‑‑‑The ‑ it's my understanding and my knowledge, my limited knowledge of enterprise agreements, they've only really been undertaken in our industry with large groups and while I am part of a - while I - my business is a franchise business which is part of a large group, we all operate independently and I don't have enough knowledge to be able to undertake an enterprise agreement on my own and I've not considered that to be a way forward for our business. We have always paid under the award, terms of the award. It's what the award's there for. That's what we've worked with.

PN548

I'm not suggesting, of course, that you might only do it on your own, you could be represented by the association or others, but to be clear that's not something you have explored, is that correct?‑‑‑That is correct.

PN549

All right. In terms of the penalty rates that are provided for by the award, you understand that they are designed to compensate your employees for the disutility of having to work on a Sunday and a public holiday?‑‑‑I am.

PN550

You accept that there is disutility for working on those days?‑‑‑Yes, I guess that's true.

PN551

You accept that that disutility would be increased if you were to increase the number of hours required to work by your employees on any Sunday?‑‑‑At the end of the day when we do our rostering for our employees - - -

*** GRAHAM THATCHER XXN MR DOWLING

PN552

Can you answer the question, Mr Thatcher?‑‑‑what we try to do is to accommodate the needs of our employees and the requests that they put forward as to the number of hours that they work and so we do our best to do - accommodate their requests for working hours and balance those against the needs of the business. We do our best to accommodate both sides.

PN553

Do you mean by that that should you increase your store hours by one or two and any of your employees say 'I do not want to work an extra two hours on a Sunday for less money' that you will say to them 'That's okay. You don't have to'?‑‑‑Well we can't make somebody work, especially a casual employee, we can't make somebody work any longer hours than they want to and with our permanent staff, we have to negotiate changes to their hours anyway under the terms of the award.

PN554

Are you saying to me, Mr Thatcher, that in respect of your permanent staff, if they say to you 'I do not want to work an extra two hours on a Sunday for less pay' you will say 'That is okay. You do not have to'?‑‑‑We can't make them work longer hours if they don't - if they're not prepared to work.

PN555

Is that a yes to the question, Mr Thatcher?‑‑‑No, it's not a yes. What I'm - there's no yes or no answer to that question. We can't make somebody work longer hours than they want to work.

PN556

Do I understand from that then that if they don't want to you will not require them to?‑‑‑We will encourage them to, we will ask them to. I would suggest that most people will be happy to but if they don't want to, we can't make them.

PN557

Thank you. Nothing further.

PN558

MR FERGUSON: Nothing arising.

PN559

VICE PRESIDENT CATANZARITI: Thank you, Mr Thatcher. You're excused.

PN560

MR DOWLING: My apologies. I have been reminded of a topic that I neglected. I'm very sorry to my learned friend and to the Commission. There is just one matter, Mr Thatcher, that I want you to clarify for me. In respect of the Myer Centre, you've given some evidence about how it is the case that lessees may be required to open certain hours if a shopping centre is open certain hours. Do you recall that evidence?‑‑‑I do.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 561-563

PN564

All right, and are you able to provide a copy of the new lease for us, please?‑‑‑Well not today.

PN565

I wonder whether you might do that when you leave the courtroom and send it to Mr Ferguson. Are you able to do that, Mr Thatcher?‑‑‑I am.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 566-583

PN584

Thank you very much. Can I - - -?‑‑‑Can I offer a bit more of an explanation about that?

PN585

Can I - - -

PN586

VICE PRESIDENT CATANZARITI: Just one second. Do you want to - - -

PN587

MR DOWLING: It might be helpful - I was going to tender this document. I'm in the Commission's hands as to whether it might be easier to have the complete set rather - - -

PN588

VICE PRESIDENT CATANZARITI: I think it's better having the whole complete set when Mr Ferguson gets it.

PN589

MR DOWLING: Thank you very much. There are no further questions.

PN590

VICE PRESIDENT CATANZARITI: No, that'll be - is there anything arising as a result of that, Mr Ferguson?

PN591

MR FERGUSON: Only in relation to one issue.

PN592

VICE PRESIDENT CATANZARITI: Yes.

RE-EXAMINATION BY MR FERGUSON [11.43 AM]

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 593-595

PN596

MR DOWLING: Well I object to evidence that is about other people's leases. If Mr Thatcher wants to give evidence about his own, he can. I object to evidence about other people's. We don't have those other leases, we don't have the people to cross-examine about it, we don't know the circumstances. Mr Thatcher should be giving evidence about his own lease and that is all in our submission.

PN597

MR FERGUSON: He was giving evidence about his experience with other leases and he can do that.

CONFIDENTIAL TRANSCRIPT PARAGRAPH 598

PN599

MR FERGUSON: Nothing further.

PN600

VICE PRESIDENT CATANZARITI: All right, thank you, Mr Thatcher. You are excused.

<THE WITNESS WITHDREW [11.46 AM]

PN601

VICE PRESIDENT CATANZARITI: What happens next, Mr Dowling?

*** GRAHAM THATCHER RXN MR FERGUSON

PN602

MR DOWLING: I should reserve the right to recall Mr Thatcher. We will do our very best to avoid it because we think the documents should be able to speak for themselves but not having seen them, I formally reserve that right.

PN603

VICE PRESIDENT CATANZARITI: All right. What happens next in terms of witnesses?

PN604

MR FERGUSON: It's Graham Downs but you'll need a short adjournment again to arrange another video link.

PN605

VICE PRESIDENT CATANZARITI: All right. We're ready to proceed with him shortly?

PN606

MR FERGUSON: He should be waiting as I understand it. He's there.

PN607

VICE PRESIDENT CATANZARITI: We'll bat on then. We'll take a short adjournment.

PN608

MR FERGUSON: Yes.

SHORT ADJOURNMENT [11.46 AM]

RESUMED [12.06 PM]

PN609

VICE PRESIDENT CATANZARITI: Thank you, Mr Ferguson.

PN610

MR FERGUSON: Thank you. The next witness I call is Mr Graham Downs.

PN611

THE ASSOCIATE: Please state your full name and address for the record.

PN612

MR DOWNS: Graham Phillip Downs, (address supplied)

<GRAHAM PHILLIP DOWNS, AFFIRMED [12.07 PM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [12.07 PM]

PN613

MR FERGUSON: Good afternoon, Mr Downs?‑‑‑I'm sorry. We've got very, very faint audio at the moment.

*** GRAHAM PHILLIP DOWNS XN MR FERGUSON

PN614

Yes. I'll just speak louder. Can you hear me now?‑‑‑Yes, that's much better.

PN615

Have you prepared a statement for the purposes of these proceedings?‑‑‑Yes, I have.

PN616

And do you have a copy of that statement with you today?‑‑‑I do.

PN617

Is that statement some 56 paragraphs in length?‑‑‑It is.

PN618

And it's undated but did you prepare that statement and sign it on the 14 March - I'm sorry - Did you finalise that statement on the 14 March 2018?‑‑‑Yes, I did.

PN619

Was that statement true and correct at that date?‑‑‑At that date it was.

PN620

I tender that statement.

PN621

VICE PRESIDENT CATANZARITI: Exhibit 3.

EXHIBIT #3 WITNESS STATEMENT OF GRAHAM PHILLIP DOWNS DATED 14/03/2018

PN622

MR FERGUSON: With leave I just want to update a few points.

PN623

VICE PRESIDENT CATANZARITI: Yes, go ahead.

PN624

MR FERGUSON: Mr Downs, if I could take you to paragraph one? Do you see there that you've identified that you're the director of a number of entities? Of four entities? Are you still the director of JustCuts Cockburn?‑‑‑No, I've removed myself from a director of JustCuts Cockburn.

PN625

Thank you. And are you still involved in its operation?‑‑‑Yes. It's owned with my parents and I've made one of my parents a director.

PN626

Thank you. Can I take you to paragraph four? Are you still a licensed financial advisor?‑‑‑No, I ceased being a licensed financial advisor in early this year in March.

*** GRAHAM PHILLIP DOWNS XN MR FERGUSON

PN627

If I can just take you to paragraph nine? See there you say that in each of the salons labour constituted just under 50 percent of their revenue during the 2016-2017 financial year. Did you include superannuation costs in the assessments of what labour constituted?‑‑‑No. It would be just over 50 percent with super.

PN628

Right. And for the 2017-2018 financial years what proportion of revenue would labour constitute approximately for each of your salons?‑‑‑Cockburn 48 per cent. Karrinyup, 50 percent, Booragoon 52 percent and Belmont 79 percent in 2018.

PN629

Right. And that's including superannuation?‑‑‑Yes. Correct.

PN630

And sorry, that's for the 2017-2018 financial year?‑‑‑Yes.

PN631

Can I just take you to paragraph 42? You there identify the core price for a style cuts cut as being $31. What is it currently?‑‑‑There has been a price rise to $32.

PN632

Right?‑‑‑That was set by JustCuts.

PN633

And so I take you to paragraph 44. Has that the price you charged there, increased as well?‑‑‑Yes.

PN634

And what is the current price?‑‑‑$32.

PN635

Thank you. The witness is available for cross-examination.

PN636

VICE PRESIDENT CATANZARITI: Thank you. Mr Bakri?

PN637

MR BAKRI: Thank you, your Honour.

CROSS-EXAMINATION BY MR BAKRI [12.11 PM]

PN638

MR BAKRI: Mr Downs, you've just given evidence explaining that your involvement with the Cockburn salon has changed. You're no longer a director but you're still involved in the operations of the centre?‑‑‑Yes.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN639

Are there any other salons in addition to these four salons to which you refer in your statement that you have an involvement with?‑‑‑Not that I referred to in my statement, no.

PN640

But are there any other salons which you're involved with which are not referred to in your statement?‑‑‑Are there any additional salons?‑‑‑There is two additional salons that are not in my statement that I'm involved in.

PN641

Can you tell us about those, please? Which is the first salon?‑‑‑JustCuts in Whitfords.

PN642

JustCuts in?‑‑‑Whitfords.

PN643

And what is your involvement with that salon?‑‑‑It's owned by my mother. My mother - and I guess - and any family you held your parents. So I do the wages. I help with payroll, accounts - yes, effectively assist in aspects of the business - excuse me, in all aspects of the business.

PN644

And do you hold a directorship with that company?‑‑‑No, which is why I didn't refer to it in my statement. It's owned by my mother.

PN645

And are you on the payroll for that company?‑‑‑No. No.

PN646

You didn't receive any fees in any other way for what you do?‑‑‑No, I - it's a family business. I loan money from my parents. I owe them money. You know there's no commercial aspect to it. It's just family.

PN647

Okay?‑‑‑So, I'm not paid from the business.

PN648

And the second business. Is it another JustCuts business?‑‑‑It's held in the same entity and it's just another JustCuts, yes.

PN649

And where's that one?‑‑‑Galleria.

PN650

Galleria. And is that in - where's that? In Perth? Or - - -?‑‑‑Yes. Also in WA. Yes.

PN651

And you're not at - you don't hold an office with that?‑‑‑It's the same entity.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN652

It's the same entity. My apologies. I understand. Okay. In your statement you give evidence about the employees at each of the four salons referred to therein and this evidence was then supplemented by some information that was provided by HABA's lawyers directly to my instructors. I just want to take you through some of that information just to clarify the current situation. Do you still employ six casual stylists at Belmont?‑‑‑Off the top of my head I couldn't say to be honest. They're casual. I would think, yes but I know we had one person who was working one day a week that left recently and we've got a person temporarily doing their role. So it's a little bit hard to say on any particular day with the stylists how many we have.

PN653

But you would agree - - -?‑‑‑I would say that's roughly correct.

PN654

Roughly?‑‑‑It's roughly correct.

PN655

Okay?‑‑‑Yes.

PN656

And each of these employees, I take it, is classified by the business as a level 3 under the Award?‑‑‑Correct.

PN657

And turning to Cobham is it seven casual stylists there? Roughly?‑‑‑I would think that'd be roughly correct. Yes. And have someone quit on Thursday. So - and it's a - - -

PN658

Yes. Why did they - why did they quit?‑‑‑They've been with us for quite a while. I spoke to the team leader about it. They don't report to me. So I believe it's just time for them to move on. They are hairdressers - do change jobs fairly frequently.

PN659

Retention is a bit of an issue?‑‑‑Not - look we keep them for a long time or they have changed jobs a lot. Yes. it's one of those catch-22's. So some people are with us for five years, six years - longer. Some people come and go within six months. Yes. It's - sometimes they're travelling. It's a very transient industry I guess, yes.

PN660

Yes. And it can be hard to - - -?‑‑‑In some respects

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN661

- - - hang on to the employees sometimes?‑‑‑We treat them really well so we believe that we have a higher retention. But yes, it's hard to - it can be hard to keep staff when they've got boyfriends that move to mining jobs in other towns and things like that. You can't sort of - yes - - -

PN662

Yes. And you'd accept that one of the issues with retaining staff is that the work involves unsociable hours?‑‑‑No. I wouldn't.

PN663

So you don't agree that the work involves - - -?‑‑‑What would you - - -

PN664

- - -unsocial hours?‑‑‑Well, they take it - they work Monday to Sunday. I don't know that's unsociable because not every stylist works every Sunday. So we get - they get time off. They don't work public holidays in our salons. I wouldn't say they're unsociable hours. I've worked the same hours in different jobs I've had. If you get a Tuesday off that's your day off. It's probably a better day because you can do more things than you can on a Sunday, everything's open.

PN665

And when you've done that have you received award wages?‑‑‑No, I was working for a commission unfortunately. So - - -

PN666

All right. Now turning to Booragoon. Are roughly six stylists still working at Booragoon?‑‑‑Yes. Roughly, six.

PN667

And again all level 3 under the award?‑‑‑Yes.

PN668

Just turning back to Cockburn, just to clarify that all of those employees - I think you said there were roughly seven, that they are level 3 under the Award?‑‑‑Yes, correct.

PN669

Yes, thank you?‑‑‑But they're all casuals. There's some work one day or two days. Some work - you know - it's varied hours. So - - -

PN670

Yes, I understand. And in relation to the Karrinyup salon there are roughly seven casual stylists there?‑‑‑I believe we're looking for someone there so I would say roughly six at the moment.

PN671

Roughly six. And, again, those six stylists are classified at level 3 under the award?‑‑‑Correct.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN672

So I am correct in understanding that all of the employees employed by the businesses across the four salons are employed under - as level 3 employees under the award?‑‑‑Yes.

PN673

And this means that all of these stylists are trade-qualified hairdressers? Yes?‑‑‑It does.

PN674

And they hold - - -?‑‑‑We ask for their qualifications.

PN675

When they start?‑‑‑Yes. We don't have apprentices.

PN676

Yes?‑‑‑We can't hire apprentices.

PN677

You say you can't hire apprentices and that's because of the franchise arrangement?‑‑‑We don't do colour work. The business is - no, the business is called JustCuts. We can't train someone in colour. So we can't train an apprentice unfortunately. We'd like to but we can't.

PN678

Yes. And that's - - -?‑‑‑We don't - we're not - we just can't employ apprentices because of that - the function that we don't the full range of services. We can't train them.

PN679

Thank you, Mr Downs. And that situation applies across, not just your businesses or your business, but the entire JustCuts - - -?‑‑‑JustCuts policy is that we don't. We only have qualified stylists and the main reason we have qualified stylists is because we can't employ apprentices.

PN680

Thank you?‑‑‑Because we don't meet the criteria to employ apprentice. So that's the point of difference of the business but it's a function of the business.

PN681

Thank you. Thank you for clarifying that. Now turning back to the qualifications. So you've given evidence that the stylists are all trade qualified and just too, so that I understand this correctly, the stylists hold a certificate III in hairdressing do they?‑‑‑Yes, as far as I am aware. They are all supposed to. And I leave it to my team leaders to request that to keep it on file. So we ask them to be qualified.

PN682

And do some of them hold higher level qualifications?‑‑‑Not that I'm aware of.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN683

And you would agree that - - -?‑‑‑Not that it's been brought to my attention.

PN684

You would agree that all of the stylists are highly trained?‑‑‑We provide a lot of training so I'd hope so, yes.

PN685

Yes. Now in your statement at paragraph 53 you state that you understand that HABA's proposed variations would be relevant to the salon's award covered full time, part time and casual employees. Can you just clarify for me whether this means that the salons employ persons who are not award covered?‑‑‑No. The award covers all employees in the business.

PN686

I would now like to ask you about the hourly rates that you currently pay the level 3 stylists. What is the ordinary hourly rate?‑‑‑It just changed. I'm not a hundred percent sure off the top of my head. It went up a few months ago. About 27-odd dollars - I think 26 or $27 - something like that.

PN687

And I take it that you don't know that the rate - you're not able to tell me the rate for Saturday or Sunday?‑‑‑Well, that's 200 per cent of that rate on a Sunday. So it's about $46 on a Sunday.

PN688

Yes. And Saturday? Do you know what that penalty is?‑‑‑I think it's $150 from - which I think works out to something like 33 or 34 but I'm guessing. I plug it into my spreadsheets once a year so I don't really spend much time after that, thinking about it, I guess.

PN689

Thank you?‑‑‑When we get the notification that changes we - it prints the spreadsheet and that's the last time I think about it.

PN690

Thank you, Mr Downs. Do you ever pay the employees cash in hand?‑‑‑No, I'm a registered tax agent. That would be detrimental to myself to do that.

PN691

So you would agree that the success of the salons is largely dependent on the salons providing a good service to the customers?‑‑‑I would agree that's one of the factors, yes.

PN692

Yes. And a significant factor?‑‑‑Yes. It is one of the significant factors.

PN693

And therefore the success of the salons, in large part, depends on the quality of the service that the stylists provide. Yes?‑‑‑Yes.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN694

So for the salons to succeed they need to recruit and retain highly skilled staff?‑‑‑Yes.

PN695

And you would agree that recruiting and retaining highly skilled staff is a challenge that the business must deal with?‑‑‑Yes, it is a challenge that has come a bit easier in Western Australia with the mining boom disappearing but, yes, it can be extremely challenging at times.

PN696

And part of the problem or one factor that makes it challenging is the level of wages that are paid in the industry. Do you agree with that proposition?‑‑‑I would disagree.

PN697

In your statement you set out the opening hours of the four salons. You state that the four salons are open on Sundays from 11.00 am to 4.00 pm. I take it that's still the case?‑‑‑That is the hours that we advertise that we're open. We open on a Sunday until we get quiet and then we close. The only instruction is to start considering that at 2.30 to 3.00 o'clock and we will close at 3.00 o'clock if we're not busy.

PN698

You don't say that in your statement. Is there a reason for that?‑‑‑I don't say the reason for that? Or you're asking me the reason for that?

PN699

Well is there a reason that you didn't say that in your statement?‑‑‑No, there's not a reason. It's just that's - that's the facts but we - I stated the hours that we're open. We advertise we're open. We have a sign on the door and we have on the website that we're open 11.00 till 4.00.

PN700

Okay?‑‑‑We do close earlier than that. Even on a Thursday night we close earlier now in winter.

PN701

And would you say that it's not uncommon that you will close early on a Sunday?‑‑‑I'd say it's - yes, it's quite common. We would close early on a Sunday.

PN702

It's quite common. So most Sundays. Would you agree with that?‑‑‑So when you talk about 12 months in a hair style and you've got winter, summer, you've got peaks - you've got school holidays - you've got lots of different times of year. So it's hard to say a general statement. Through winter we would close every Sunday early because there's less people getting their hair cut. Coming up to Christmas we would probably be up to - - -

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN703

Can we just pause there? When you say 'early', so from about 2.30?‑‑‑They're instructed to consider closing from 2.30 to 3.00 o'clock - how busy we are - they will close at 3.00, 3.30 - generally, if it's quiet.

PN704

Yes. And I take it that in summer sometimes you would stay open past four o'clock if the demand is sufficient?‑‑‑They are under instructions. If the demand is there, if we're busy, not to close at four o'clock - to continue working. It's at their discretion as to how many people and what they're doing but my experience is they haven't - probably two occasions I've been made aware of that happening.

PN705

But it's an option there if there's sufficient demand that they can stay open?‑‑‑Yes, they by all means can stay open. If we were busy I would be happy for them to stay open if they had sufficient clients to be busy.

PN706

Yes. Now, I understand that the four shopping centres in which the salons are operating are open from 11.00 am to 5.00 pm? That's correct, isn't it?‑‑‑Correct. Yes.

PN707

And under the leases that relate to each of the four salons the business is not obligated to open on a Sunday so the salons don't have to open on a Sunday. Yes?‑‑‑No, it's illegal in Western Australia to force anyone to open on a Sunday. So - - -

PN708

Yes. But putting to one side the reason you're - - -?‑‑‑Yes. So that's why the leases say - - -

PN709

Yes?‑‑‑They can't - they don't say it. They're not allowed to.

PN710

Thank you. I just want to ask you some questions about how you determine the trading hours and how you undertake the task of rostering. When you're deciding the opening hours for the salons and how many employees to roster at a salon on a particular day of the week the key matter that you take into account is how much demand there is likely to be for services on the given day. That's right, isn't it?‑‑‑Yes, we look at past history on that day. I speak to the stylists and we decide based on this historical data.

PN711

Yes. And this is because you don't want to pay wages to employees and for them to be idle or with insufficient work to do. You want them to be productive. Yes?‑‑‑Yes. Well, wages is obviously a very large cost to the business so you need them to be productive.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN712

And when you roster hours you seek to avoid rostering them in such a way that they will have insufficient work to do. Yes?‑‑‑Yes, we try to avoid having too many stylists for the amount of work we're expecting, yes.

PN713

And the same situation applies to Sunday. The same principle when you're deciding how to roster on a Sunday both the hours and the number of employees, you apply this principle. You don't want to - you want to try to avoid having insufficient work for the workers to do. Yes?‑‑‑I apply a slightly different principle to a Sunday because of the higher costs of the stylists. I have to set a higher amount of productivity on a Sunday to the stylist. So I need a lot more - they need to be very busy for me to put an extra stylist on.

PN714

So the cost - the wages costs is something you take into account - but you would agree with me that you still aim on rostering on a Sunday to have the employees being productive and have enough work to do on the Sunday. That's still something you take into account?‑‑‑Yes. I take that into account that the stylists need to be busy and - yes, that's it.

PN715

Thank you. In your statement at paragraph 28, you state that the hours rostered on Sundays at each of the salons is shorter than the trading hours of the respective shopping centres and you've now clarified that the centres are open from 11 am to 5 pm, yes?‑‑‑Yes.

PN716

The situation is that there's only a one hour difference between the regular trading hours of the salons and the shopping centres. That's right, isn't it?‑‑‑There's an advertised one hour difference, yes, and as we discussed there is a - they are generally shutting at 3.30, so they are shutting - - -

PN717

Even earlier, yes?‑‑‑earlier than that time we advertise, so yes.

PN718

You've given evidence that generally between midday and 3 pm on a Sunday is the busiest part of the day so I understand that generally after 3 pm demand consistently starts to drop off?‑‑‑Depending on - every day's different so it's a bit hard to say, every salon's different. The demand - if there's going to be a demand it'll be around lunchtime but there could be a one hour wait because we don't have as many staff on if we get a peak, we don't roster an extra person for a one hour peak because we have to roster someone for three hours, so we will - that demand may not be there but we might be finishing clients that came in earlier, we've asked them to come back, so that's why it's a peak period.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN719

Yes, but, Mr Downs, you say that this period between midday and 3 pm, so a three hour period, is the busiest part of the day?‑‑‑Yes.

PN720

And you've noted that an option is to roster someone on for three hours, so is this something you've considered, having a casual employee work during this peak period for the minimum three hour engagement period on a Sunday?‑‑‑It is. It is something I have considered but we can't guarantee we're going to have that busy period. We can't guarantee how busy that's going to be, if that makes sense.

PN721

Yes, and that answer if you can't guarantee how much demand there's going to be from customers on that particular day?‑‑‑And we don't know when they're going to come in 100 per cent.

PN722

Yes, and this will continue even if this Commission reduces penalty rates as sought by HABA. You will not know how much demand there will be and there will be uncertainty about that?‑‑‑It would cost me less to actually roster more people on so I'd take the chance with rostering more people if the wages cost was lower but it's a bigger risk to the business if I have to roster additional person on at a higher price. At $45 when the style cuts are $32, if we do one cut per hour, we're going backwards quite fast.

PN723

But even if the Sunday penalty rate was lower, your aim would still be to avoid having employees being idle during their rostered shifts, yes?‑‑‑Well I would use a different criteria to that idle. How - what I would decide would be idle would be different criteria based on the wages cost.

PN724

In your statement you don't say anything about whether the employees at each of the salons are covered - you don't refer to an enterprise agreement. Am I correct in understanding that employees at each of the salons are not covered by an agreement?‑‑‑Yes, correct.

PN725

That you have not attempted to negotiate an enterprise agreement at the salons?‑‑‑No.

PN726

Do you understand that an enterprise agreement could be negotiated that does alter penalty rates in the award so long as other rules were complied with?‑‑‑I'm aware of them. I did get involved in negotiating the previous version of it that was ripped up, I forget the name of it. The rate was increased across the week and it was very expensive to set up and we decided not to go down that road.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN727

Can you clarify which negotiation you're referring to?‑‑‑Years ago when - with the one that Julia Gillard ‑ Kevin Rudd ripped up, WorkChoices or whatever it was. There was agreements back then that you could do with your staff but we don't - we've not gone down that road again. We just pay the award.

PN728

Just wanted to ask you a few questions about the services provided at the salon. Am I correct in understanding that the core business of the salons is the provision of hair cutting and related services?‑‑‑Yes.

PN729

Yes, and that this is what makes up the vast majority of the salons' revenue, the hairdressing and related services?‑‑‑The hairdressing and retail products but the hairdressing is the main.

PN730

You would have to agree that whilst the salons sell products, that this just an add on to the core service that's provided by the salons to customers?‑‑‑Belmont runs at - currently at about 24 per cent retail and is second in the country for retail so depends on the salon. Some salons don't do a lot of retail and some do but, yes, hairdressing is what we do but retail is also a substantial ‑ can be substantial.

PN731

Yes, and if we turn to - and I'll take you to those figures in a moment. If we turn to the question of the amount of time spent by the employees, the stylists, you would agree that the vast majority of the time that they spend at work is spent cutting hair and providing other hair related services and not selling products? You'd agree with that?‑‑‑Yes, I would agree that they're mostly cutting hair but whilst they're cutting hair they're talking about products. But yes, the revenue comes from their hair cutting, most of it, and associated service like moustache trims and beard trims and - - -

PN732

Blow dries?‑‑‑Blow waves and straightening and, yes, shampoos and - - -

PN733

Most customers that buy products are customers who have just received either a hair cut or another service and as a add on they have purchased something on their way out, is that right?‑‑‑On the first visit, yes, I guess we get - we do get what we call walk in sales now as well and a lot of clients are just re-purchasing what they've already purchased so it's - if they like a product. We have our exclusive range. You can only buy from us, you can't buy anywhere else, so.

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 734-746

PN747

I tender those four financial statements, your Honour.

PN748

VICE PRESIDENT CATANZARITI: Exhibit C.

EXHIBIT #C FOUR FINANCIAL STATEMENTS

PN749

MR BAKRI: No further questions, your Honour.

PN750

VICE PRESIDENT CATANZARITI: Thank you. Mr Ferguson.

PN751

MR FERGUSON: Nothing arising.

PN752

VICE PRESIDENT CATANZARITI: Thank you, you're excused.

<THE WITNESS WITHDREW [12.44 PM]

PN753

VICE PRESIDENT CATANZARITI: That leaves us to how we run the afternoon session where we have the union's opening, Ms Maguire and Ms Brooks.

PN754

MR DOWLING: Yes, your Honour. We've contacted both Ms Maguire and Ms Brooks and they'll be ready and available from 2.00. I expect to be sort of 10 or 15 minutes, just very brief opening.

PN755

VICE PRESIDENT CATANZARITI: All right. Well we'll adjourn until quarter to 2.00.

LUNCHEON ADJOURNMENT [12.45 PM]

RESUMED [1.49 PM]

PN756

VICE PRESIDENT CATANZARITI: Thank you, Mr Dowling.

PN757

MR DOWLING: Thank you, your Honour. Just a brief explanation by way of opening and then we have Ms Maguire and Ms Brooks available and ready to give evidence.

*** GRAHAM PHILLIP DOWNS XXN MR BAKRI

PN758

Before they attend for evidence can I very briefly summarise the evidence to be called on behalf of the two unions. Ms Maguire, who will give evidence first, is a hairdresser who did her four year apprenticeship in 1980 and is now a business owner who opposes the proposed cuts to penalty rates.

PN759

Ms Gedney, who will give evidence tomorrow, commenced her four year apprenticeship in 1985, has worked continuously as a qualified/certified Cert III hairdresser in the 35 years since that time and is paid presently $22.70 per hour despite having a four-year apprenticeship and 34 years' of experience. She works 26 hours a week, earns $650.40 after tax and the 26 hours that she works includes 10 to 5 on a Sunday. She is by any measure in our submission low paid. Despite her experience and hours she receives a Newstart and other low income concessions. The effect of the applicant's proposed cuts on Ms Gedney is a reduction of nearly $100 gross per week.

PN760

VICE PRESIDENT CATANZARITI: Because, Mr Dowling, given we're now at the four yearly review there is actually nothing stopping the unions bringing a reverse case now saying that this industry is actually underpaid.

PN761

MR DOWLING: Yes.

PN762

VICE PRESIDENT CATANZARITI: No doubt you've given some thought to that.

PN763

MR DOWLING: Yes. Well, one application at a time, your Honour, but I accept that.

PN764

VICE PRESIDENT CATANZARITI: Yes, but it does ‑ ‑ ‑

PN765

MR DOWLING: I accept that.

PN766

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑on the evidence to date raise an argument about whether the actual base rate is sufficient.

PN767

MR DOWLING: Yes.

PN768

VICE PRESIDENT CATANZARITI: Let alone the reverse angle on penalty rates.

PN769

MR DOWLING: Yes. Yes, and we'll give you some information and some of the documents set out how the rate is tied historically as you'd know to the C10 manufacturing rate, and perhaps why there should've been but hasn't been any movement, but we are where we are. In terms of Ms Gedney we'll say by any measure she's low paid. Her evidence will be she's a single mum with two dependent children who spends all of her income on essential household expenses. That highly qualified person with 30 plus years' experience is the target of this application in our submission.

PN770

Ms Brooks, again, an experienced hairdresser who did her apprenticeship in 1997 who will also suffer from the cuts and opposes them. Ms Geritz, a hairdresser who commenced her apprenticeship in 2002 and opposes the cuts. Ms Pierre-Humbert, a hairdresser who commenced her apprenticeship in 2003, earned $195 after tax during her apprenticeship, will also suffer from the cuts and opposes the cuts.

PN771

There's one further witness, who is Ms Brandreth, who was at the time of her statement a union official of the AWU and is now an official employed by a different union but her evidence will include evidence of the petition signed by 6649 people opposing the cuts to penalty rates.

PN772

The case that we face is a reduction of Sunday rates from 200 to 150 as everybody understands and a public holiday reduction from 250 to 225. What we make clear from our written submissions is the applicant is the proponent of change and as a result must advance a merit argument supported by probative evidence.

PN773

In our submission, rather than providing that probative evidence what the applicant seeks to say is this is an industry that is largely the same as retail and if they received a cut under the retail and hospitality decision we want one too. There is no evidence, in our submission, from the applicant about the comparative nature of the industries. Against that Dr Martin O'Brien is called by the unions and he will say by the measures that he assesses and the detailed statistical analysis that he undertakes they are not the same industry. This industry is more matched to the trades and when he says the trades he identifies funding, electrical, carpentry, repair maintenance, trades and manufacturing trades. The measures that he identifies including for example that in the hair and the beauty industry three-quarters are trade qualified. By trade qualified, from what we've heard already Diploma or Cert III or above, compared to the retail and hospitality where only one-quarter are trade qualified.

PN774

Not only does the applicant not call that evidence about the comparative nature of the industries but it doesn't say, and has never said, that its own particular award should not continue to operate. It says, as we understand it, that it's appropriate to have its own separate award with its own separate qualification and classification structure but at the same time says, well, we're really just like retail and we want their cuts. Those two things don't sit comfortably we say.

PN775

It also says, as we understand it, that the cuts are needed to meet the competitive pressures. As to those complaints about competition there's no detailed evidence of that competition or how it should operate, no expert called in respect to the competitive pressures or the way competition operates in the industry, and significantly even if there were and if submissions were made about it there's no evidence about how any reduction in penalty rates would ameliorate such alleged competition.

PN776

Finally, as we understand it, it's suggested that a reduction in penalty rates would have an employment effect. We say, and made very clear in our submissions, of June 2018 that there's no evidence of an employment effect. There's no evidentiary basis for it leading this case and there's no academic support for it.

PN777

Together with all of those matters we say the applicant's case is not made out when assessed against whether it's necessary to meet the modern awards objectives particularly by reference to 134(1)(a) the living standards and needs of the low paid and 134(1)(d)(a) additional remuneration for working on weekends and public holidays. And none of the other considerations provided for by the modern awards objectives could be said to outweigh those significant considerations.

PN778

To all of that we add that the penalty rate for this industry was assessed in 2008, 2010 and 2013 as being at the appropriate levels and nothing is led to suggest that that wasn't a proper and valid consideration.

PN779

Lastly, no evidence is provided to support a proposition that this reduction is widely sought or required by this industry or indeed that the level of Sunday trading is such that a reduction on Sunday would make or have a material effect.

PN780

In all of those circumstances we will submit that the application simply does not satisfy the requisite standard and does not meet the necessary statutory test, and for those reasons should be dismissed. Unless there are any questions about the way it is the unions put their case?

PN781

VICE PRESIDENT CATANZARITI: No, thank you. We'll take a short adjournment to allow the ‑ ‑ ‑

PN782

MR DOWLING: Yes.

SHORT ADJOURNMENT [1.57 PM]

RESUMED [2.00 PM]

PN783

VICE PRESIDENT CATANZARITI: Thank you, Mr Dowling.

PN784

MR DOWLING: Thank you, your Honour. Ms Maguire, can you hear me?

PN785

MS MAGUIRE: Yes.

PN786

THE ASSOCIATE: Ms Maguire, could you please state your full name and address for the record.

PN787

MS MAGUIRE: Donna Maguire, (address supplied).

<DONNA MAGUIRE, SWORN [2.01 PM]

EXAMINATION-IN-CHIEF BY MR DOWLING [2.01 PM]

PN788

VICE PRESIDENT CATANZARITI: Yes, Mr Dowling.

PN789

MR DOWLING: Thank you, your Honour. Ms Maguire, do you have a copy of your statement with you?‑‑‑I do.

PN790

Is the copy of the statement you have three pages?‑‑‑Yes. That's correct.

PN791

And the third page simply has your name and the date, 20 June 2018?‑‑‑Correct. Yes.

PN792

On the second page there are a number of sentences that have lines struck through them?‑‑‑Yes.

PN793

Thank you. I need to update that statement, your Honour. In the statement in paragraph 6, Ms Maguire, you give evidence that you are employed by Jodi's Salon in Emerald. Are you still employed by Jodi's Salon?‑‑‑No, I'm not.

PN794

Can you explain to the Commission the date you commenced at Jodi's and the date you ended at Jodi's?‑‑‑I commenced at Jodi's in April 2017 and I ceased employment in December 2018.

PN795

And who are you employed by now?‑‑‑I'm self-employed.

*** DONNA MAGUIRE XN MR DOWLING

PN796

What is the name of your business?‑‑‑Donna Magee's Hair Gallery.

PN797

And what hours does that operate?‑‑‑We operate Tuesday, Wednesday, Thursday, Thursday night, Friday and Saturday.

PN798

Are you open on Sunday?‑‑‑No.

PN799

Why not?‑‑‑I don't believe that you should work on Sundays. I just think it's a family time.

PN800

Are you open on public holidays?‑‑‑No.

PN801

Why not?‑‑‑I don't believe you should work on public holidays.

PN802

Can you tell the Commission, please, whether Donna Magees has any employees?‑‑‑I have one employee, a casual senior hairdresser.

PN803

And what classification level is he or she?‑‑‑Third level.

PN804

Thank you?‑‑‑She.

PN805

Can you say what level of retail work is conducted by Donna Magees?‑‑‑Would be five per cent or less.

PN806

Can you say what level of retail work was done by you when you were employed by Jodi's?

PN807

MR FERGUSON: I object to that. I'm not sure how that's updating.

PN808

MR DOWLING: It could have been ‑ ‑ ‑

PN809

VICE PRESIDENT CATANZARITI: How would she know anyway, Mr Dowling? If she's an employee of the salon and we don't know about that salon, it'd be in the records. She'd be guessing what is the retail component.

*** DONNA MAGUIRE XN MR DOWLING

PN810

MR DOWLING: I said done by her, your Honour. And she could only give evidence about that, not by everybody else.

PN811

VICE PRESIDENT CATANZARITI: That's not going to really assist the Bench.

PN812

MR DOWLING: I'm happy to take it no further.

PN813

VICE PRESIDENT CATANZARITI: Yes.

PN814

MR DOWLING: Just one last question which arises by virtue of her changed circumstances. You've given evidence, Ms Maguire, that you are not open on a Sunday or a public holiday. If there was to be a change or reduction in penalty rates as a result of this application would that change your decision not to open on a Sunday or a public holiday?‑‑‑No. I still don't believe - I would not open on a Sunday or a public holiday. I don't believe you should work on a Sunday or a public holiday. I think it's family time. So it hasn't changed.

PN815

Thank you, Ms Maguire. With the updating of your statement are the contents of that statement true and correct?‑‑‑Yes.

PN816

I tender that statement.

PN817

VICE PRESIDENT CATANZARITI: It's exhibit D.

EXHIBIT #D WITNESS STATEMENT OF DONNA MAGUIRE DATED 20/06/2018

PN818

MR DOWLING: If you just wait there, Ms Maguire?‑‑‑Yes.

CROSS-EXAMINATION BY MR FERGUSON [2.05 PM]

PN819

MR FERGUSON: Good afternoon, Ms Maguire. My name is Mr Ferguson. I'm the solicitor acting for Hair and Beauty Australia, the proponents of a change to the award in these proceedings. Can you hear me?‑‑‑Yes, I can hear you.

PN820

Thank you. I just have a relatively small number of questions for you. Just starting with your new business, what is the address of that business?‑‑‑Shop 3, 30 Hospital Road, Emerald, Queensland, 4720.

*** DONNA MAGUIRE XXN MR FERGUSON

PN821

You said you have one casual employee. And how many hours a week do they typically work?‑‑‑Seventeen hours and probably a Saturday it could be four to five hours.

PN822

So 17 hours plus an additional four to five on a Saturday?‑‑‑That would be Thursday, Friday and Saturday.

PN823

Are they your busiest periods?‑‑‑Yes.

PN824

Can I just take you to paragraph five? You there talk about your experience performing some freelance hairdressing over quite a long period of time as I understand it. But what do you mean by freelance hairdressing?‑‑‑I just did a little bit of casual work for myself.

PN825

When you say for yourself do you mean that you performed the work directly for customers and were paid yourself by the customers?‑‑‑No, just did family hair mainly. Just family.

PN826

So your customers were family but they paid you?‑‑‑But I didn't received payment, yes.

PN827

Sorry?‑‑‑I didn't receive payment from my family.

PN828

Right. So you didn't do any sort of paid work at all?‑‑‑No.

PN829

I see. I withdraw that. Yes. Just thinking about your business again do you provide similar services to Jodi's Salon?‑‑‑Yes.

PN830

Can I take you to paragraph 9? You there talk about seeing hairdressers, young hairdressers leave the industry and you say it's because the wages are too low. Is your understanding of why they leave based on things they've said to you?‑‑‑Yes.

PN831

Thank you. Can I just take you - sorry, thinking back to your time at Jodi's Hair Salon am I right in understanding that they sell products as well as cutting hair and ‑ ‑ ‑?‑‑‑That's correct.

PN832

Yes. What products do they sell?‑‑‑Retail, hairdressing retail products.

*** DONNA MAGUIRE XXN MR FERGUSON

PN833

And what are they?‑‑‑Shampoo, conditioner.

PN834

Yes?‑‑‑Mousse, hair gel. Just - yes.

PN835

Anything else?‑‑‑Lots of products. Sorry?

PN836

Yes, what other products?‑‑‑Coloured shampoos, coloured conditioners, oils, treatments.

PN837

Is that it?‑‑‑Well, it's just normal products that hairdressing salons sell.

PN838

But there was a wide range of products, was there?‑‑‑Yes.

PN839

Did people sometimes come in and just purchase product?‑‑‑Yes, it was in the shopping centre.

PN840

Yes. And some of those products could also be purchased from other retail outlets like department stores or stores like Price Attack, couldn't they?‑‑‑No. No.

PN841

Thank you. That's the cross-examination.

PN842

VICE PRESIDENT CATANZARITI: Any re-examination?

PN843

MR DOWLING: No re-examination, your Honour. Thank you.

PN844

VICE PRESIDENT CATANZARITI: Thank you. You're excused.

<THE WITNESS WITHDREW [2.10 PM]

PN845

VICE PRESIDENT CATANZARITI: We'll take a short adjournment to reset.

SHORT ADJOURNMENT [2.10 PM]

RESUMED [2.13 PM]

PN846

VICE PRESIDENT CATANZARITI: Thank you, Mr Bakri.

*** DONNA MAGUIRE XXN MR FERGUSON

PN847

THE ASSOCIATE: Ms Brooks, could you please state your full name and address for the record.

PN848

MS BROOKS: It's Kelly Anne Brooks, (address supplied).

<KELLY ANNE BROOKS, AFFIRMED [2.13 PM]

EXAMINATION-IN-CHIEF BY MR BAKRI [2.13 PM]

PN849

MR BAKRI: Ms Brooks, it's Yasser Bakri speaking. Can you hear me all right?‑‑‑I can just. Bit quiet.

PN850

Is that a bit better now?‑‑‑Yes. Thank you.

PN851

Could you please repeat your name, address and occupation for the transcript, please?‑‑‑My name is Kelly Anne Brooks, I live at (address supplied), and I am a hairdresser.

PN852

Thank you, Ms Brooks. And have you prepared a statement for the purposes of this proceeding?‑‑‑Yes, I have.

PN853

Have you got a copy of that statement with you?‑‑‑Yes, I do.

PN854

And is that statement dated the 28th of the 5th 2018?‑‑‑I'm just checking, sorry. Yes, it is, correct.

PN855

It is. Thank you. I just want to take you through some parts of your statement and give you an opportunity to update the statement given the time that has passed since it was prepared. If we could start, Ms Brooks, with just the first line where it states your address. That needs to be updated?‑‑‑Yes, correct. I have moved from Broome. I currently reside at (address supplied).

PN856

Thank you. And I take it that if you've moved from Broome to Perth the salon at which you work has changed. I direct you to paragraph 4 which refers to a salon in Broome called The Confessional. Is that what is your current place of employment?‑‑‑I'm currently working at a salon in Perth in Wembley.

PN857

Thank you. And when did you start at this salon?‑‑‑I started there on 29 September last year.

*** KELLY ANNE BROOKS XN MR BAKRI

PN858

Thank you, Ms Brooks. Now turning to paragraph 5 there's two sentences. If you look at the second sentence it says:

PN859

I am paid according to the minimum conditions in the award.

PN860

I understand that you inserted those words in the statement when you were working at The Confessional. Can you please clarify at the moment are you still paid according to the minimum conditions in the award?‑‑‑No, my current employment I earn above the award rate plus commission.

PN861

Thank you. If I could ask you to turn to paragraphs 10 and 11. In these paragraphs you have included your hours of work back when you were at The Confessional in Broome. Can you please explain to the Commission what your current days and hours of work are?‑‑‑The current salon I'm working at is open Tuesday to Saturday with no Sundays or public holidays.

PN862

So just to clarify, so the salon doesn't open on Sundays or public holidays?‑‑‑No, that's correct.

PN863

Thank you. Turning to paragraphs 12 to 16 you had referred to reasons as to why you were opposed to the penalty rate cuts in which you explained that there would be an impact on the amount of money that you earned because you had been working on Sundays. You've just updated your evidence to explain you no longer work on Sundays or public holidays. Can I ask you to explain to the Commission whether you are opposed to the proposed penalty rate cuts to Sunday and public holiday rates at present?‑‑‑Definitely still opposed to the penalty rate cut.

PN864

Can you please explain why you are still opposed?‑‑‑While I'm currently earning above the award I can't predict I guess where I'm working in the future, so my future roles I may be required to work Sundays and public holidays. The penalty rates cut would definitely impact me financially. And it would probably make me consider leaving the industry to be honest.

PN865

Thank you, Ms Brooks. Ms Brookes, with those corrections and the updating that we have just gone through is your statement true and correct?‑‑‑Yes, it is.

PN866

I tender the statement.

*** KELLY ANNE BROOKS XN MR BAKRI

PN867

VICE PRESIDENT CATANZARITI: Exhibit E.

EXHIBIT #E WITNESS STATEMENT OF KELLY ANNE BROOKS DATED 28/05/2018

PN868

MR BAKRI: Your Honour, that's the examination-in-chief.

PN869

VICE PRESIDENT CATANZARITI: Thank you. Mr Ferguson?

CROSS-EXAMINATION BY MR FERGUSON [2.19 PM]

PN870

MR FERGUSON: Ms Brooks, my name is Mr Ferguson. I am a solicitor acting for Hair and Beauty Australia, the organisation that's proposing a variation. Can you hear me?‑‑‑Yes, I can, Mr Ferguson.

PN871

Just to start with, I just have some questions about your current employment. Are you employed on a full-time, part-time or casual basis?‑‑‑I'm full time.

PN872

What is your ordinary hourly rate?‑‑‑I am on 20 - sorry, just off the top of my head I think it's 26.50. I can confirm that for you.

PN873

Sorry, 26.50?‑‑‑Sorry, I'm just confirming, it is - my hourly rate, 27.50, sorry.

PN874

What are you reading from?‑‑‑A pay slip.

PN875

And do you receive a higher rate at any point in time? A higher hourly rate?‑‑‑More than - no. No.

PN876

How much do you make per week typically?‑‑‑My base rate would be 1700 - so, that's a fortnight, sorry. So, 850 roughly in my hand, sorry.

PN877

So you mean net after tax?‑‑‑After tax.

PN878

And how many hours a week do you work?‑‑‑Thirty-eight.

PN879

That amount includes commission payments, does it?‑‑‑No, commission is on top.

PN880

And what do you get paid a commission for?‑‑‑We have a set target to meet and we earn 15 per cent above anything we've earned over that.

*** KELLY ANNE BROOKS XXN MR FERGUSON

PN881

But what's that target relate to? Does that relate to services or to products sold?‑‑‑Both. So there's $420 must be of retail, and we need to reach a target of 5200 for the fortnight.

PN882

So would you accept that selling retail products is an important part of your role?‑‑‑It definitely is part of our role, so our clients can maintain their hair to the best standard.

PN883

What sort of products do you sell?‑‑‑We recommend - so shampoos, conditioners, treatments and styling products depending on the client.

PN884

Could you name some brands or products that you sell?‑‑‑Sorry, you dropped out there for a moment.

PN885

Are you able to name the brands of products that you sell?‑‑‑Yes. So we in our salon stock Olaplex, Kevin Murphy, Sebastian and Wella.

PN886

COMMISSIONER LEE: You want to get down there, Mr Ferguson?

PN887

MR FERGUSON: Yes. Some things I do definitely need to take instructions on. Can I just take you back to your statement. It says that you've worked at around 10 different salons in Western Australia since 1997. How many of those, apart from The Confessional Hair were open on a Sunday? Were any of them open?‑‑‑No, that's the first one I've worked at that's open on a Sunday.

PN888

Were you sometimes paid at award rates?‑‑‑Yes.

PN889

At all of those employers?‑‑‑No, the - I would say 90 per cent of them, yes.

PN890

Does The Confessional Hair sell hair straighteners?‑‑‑No.

PN891

Those are the questions.

PN892

VICE PRESIDENT CATANZARITI: Thank you. Mr Bakri?

RE-EXAMINATION BY MR BAKRI [2.24 PM]

*** KELLY ANNE BROOKS RXN MR BAKRI

PN893

MR BAKRI: One matter arising, your Honour. Ms Brooks, you were asked by Mr Ferguson whether selling products is an important part of your role. Can you please clarify for the Commission how much time in a typical shift do you think you would spend selling products to a customer?‑‑‑Do you mean people that have walked in or recommendations to clients?

PN894

Just over a typical shift how much time you think you would spend cutting hair and performing other services as opposed to selling products?‑‑‑I would say 95 per cent of my day is spent performing cutting and styling. Recommendations are given as we use products on client's hair, so they can achieve the same styles that we're giving them or for them to maintain their colours. Yes, it's just - it's complimentary to the services we provide. It's not a separate part if that makes sense.

PN895

Thank you for that explanation, Ms Brooks. No further questions.

PN896

DEPUTY PRESIDENT ASBURY: Ms Brooks, it's Deputy President Asbury here. Can you just confirm for me those product brands that you named generally they're - I suppose you'd describe them as available in salons as opposed to supermarkets and chemists?‑‑‑Correct. We only stock salon exclusive brands.

PN897

Yes, I understand. Thank you.

PN898

VICE PRESIDENT CATANZARITI: Thank you. You're excused.

<THE WITNESS WITHDREW [2.25 PM]

PN899

VICE PRESIDENT CATANZARITI: Mr Dowling, where do we go now for the rest of the day?

PN900

MR DOWLING: That concludes all of the witnesses that are available today. I'm sorry, we've finished.

PN901

VICE PRESIDENT CATANZARITI: No, that's okay.

PN902

MR DOWLING: We've been more efficient than I anticipated.

PN903

DEPUTY PRESIDENT ASBURY: You never have to apologise for that, Mr Dowling, I can assure you.

*** KELLY ANNE BROOKS RXN MR BAKRI

PN904

MR DOWLING: Can I identify just a number of matters? In terms of the continued timetabling I'm told by my learned friend that Ms Richter will still be called to give evidence first tomorrow and that's - we're a 10 am start on the current timetable save the Commission still being comfortable with that.

PN905

Then Ms Gedney will be called. Ms Pierre-Humbert, who appears on the timetable is not required for cross-examination and then Mr O'Brien will be called. He's the expert. He's available from any time, I think, about 11 or 11.30. So if he's required earlier we can accommodate that. So that's the - and unless my friend says otherwise we are entirely confident that all of that evidence will be completed certainly tomorrow and possibly even by lunchtime tomorrow.

PN906

I'm just reminded I said Mr O'Brien could be here earlier. That is so. Perhaps no earlier than 11.30. He's based in Wollongong and he's driving from there in the morning, but ‑ ‑ ‑

PN907

VICE PRESIDENT CATANZARITI: We'll see how he goes when he gets here.

PN908

MR DOWLING: Just a number of - two other matters, I think. I had threatened at the start of the day to provide an additional copy of KB4 because of its eligibility. There's three copies of it. At your Honour the Vice President's direction my learned friend and I had some discussion about the folder of additional documents. Can I just say we're to have some further discussion and consideration about that overnight so we don't have an agreed position to put to you.

PN909

Which only leaves one item on my list I raise out of caution, and that is the question of transcript. We've got some dates allocated for next week for closing submission. That gives plenty of time in between now and then but I just thought I should raise the question of how expeditiously the transcript is coming out. Keeping in mind that it also has to be perused, I think, by my learned friend to make sure that he is happy that the question of confidentiality can be accommodated.

PN910

VICE PRESIDENT CATANZARITI: Yes, I'll make some inquiries about that.

PN911

MR DOWLING: Very much appreciate that, Vice President. They are the only housekeeping matters I have but I'm happy to answer any that the Bench may have.

PN912

VICE PRESIDENT CATANZARITI: Mr Ferguson, anything?

PN913

MR FERGUSON: No, nothing. Thank you.

PN914

VICE PRESIDENT CATANZARITI: We'll adjourn.

ADJOURNED UNTIL TUESDAY, 27 AUGUST 2019 [2.28 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

SARKIS JOSEPH AKLE, SWORN...................................................................... PN56

EXAMINATION-IN-CHIEF BY MR FERGUSON........................................... PN56

EXHIBIT #1 AMENDED STATEMENT OF SARKIS JOSEPH AKLE OF 37 PARAGRAPHS DATED 09/03/2018, REDACTED VERSION..................................................... PN77

CROSS-EXAMINATION BY MR DOWLING.................................................. PN79

THE WITNESS WITHDREW............................................................................ PN273

GRAHAM THATCHER, SWORN..................................................................... PN279

EXAMINATION-IN-CHIEF BY MR FERGUSON......................................... PN279

EXHIBIT #2 WITNESS STATEMENT OF GRAHAM THATCHER DATED 23/02/2018, AS AMENDED............................................................................................................ PN297

CROSS-EXAMINATION BY MR DOWLING................................................ PN303

EXHIBIT #A PROFIT AND LOSS STATEMENTS FOR THATCHER TRUST PN450

EXHIBIT #B TWO DOCUMENTS TITLED OPENING HOURS................ PN530

RE-EXAMINATION BY MR FERGUSON...................................................... PN592

THE WITNESS WITHDREW............................................................................ PN600

GRAHAM PHILLIP DOWNS, AFFIRMED..................................................... PN612

EXAMINATION-IN-CHIEF BY MR FERGUSON......................................... PN612

EXHIBIT #3 WITNESS STATEMENT OF GRAHAM PHILLIP DOWNS DATED 14/03/2018................................................................................................................................. PN621

CROSS-EXAMINATION BY MR BAKRI....................................................... PN637

EXHIBIT #C FOUR FINANCIAL STATEMENTS........................................ PN748

THE WITNESS WITHDREW............................................................................ PN752

DONNA MAGUIRE, SWORN............................................................................ PN787

EXAMINATION-IN-CHIEF BY MR DOWLING........................................... PN787

EXHIBIT #D WITNESS STATEMENT OF DONNA MAGUIRE DATED 20/06/2018 PN817

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN818

THE WITNESS WITHDREW............................................................................ PN844

KELLY ANNE BROOKS, AFFIRMED............................................................ PN848

EXAMINATION-IN-CHIEF BY MR BAKRI.................................................. PN848

EXHIBIT #E WITNESS STATEMENT OF KELLY ANNE BROOKS DATED 28/05/2018................................................................................................................................. PN867

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN869

RE-EXAMINATION BY MR BAKRI............................................................... PN892

THE WITNESS WITHDREW............................................................................ PN898