Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1056633






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Restaurant Industry Award 2010




10.24 AM, MONDAY, 26 NOVEMBER 2018


JUSTICE ROSS:  Could I have the appearances please?


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




MS N DABARERA:  If the Commission pleases, Dabarera, initial N, also appearing for United Voice.


JUSTICE ROSS:  Thanks, Ms Daberera.


MR C WARD:  May it please, Ward, initial C, for RCI.


JUSTICE ROSS:  Thank you.


MS K THOMSON:  If it pleases the Commission, Thomson, initial K, for ABI and the New South Wales Business Chamber, previously been granted permission to appear in these proceedings, your Honour.


JUSTICE ROSS:  Thank you.  Now, we issued a statement on 23 November and a background paper on the same day.  I just want to run through the programming issues so we're all clear about where we're going.  Mr Bunder's evidence will commence at 10.30 so, shortly, with a link to Port Lincoln.  Mr Brailey's evidence will commence at 11.30 so we'll take a break in between the evidence depending on when Mr Bunder's evidence finishes.  At the conclusion of Mr Brailey's evidence we'll adjourn until 2 pm.


When the hearing resumes, United Voice will put its oral submissions in support of its tool allowance claims in both matters.  RCI will then make oral submissions in support of its claims to vary the Restaurant Award and in reply to United Voice's tool allowance claims.  That's really to avoid you being here tomorrow if you don't want to be here tomorrow, but you can reply to United Voice's tool allowance claims when the AHA and ABI do, but that's a matter for you.  Then United Voice can reply to RCI's submissions in relation to its application to vary the Restaurant Award.  Then I'm assuming the Associations will be represented this afternoon.  Do you know that, Ms Thomson?


MS THOMSON:  I'm not sure, Your Honour.


JUSTICE ROSS:  Can I ask you to make a phone call to them because it's so that they're here to listen to the United Voice tool allowance matters and we also want to make some observations about the proceedings tomorrow and some of the claims, and some requests for further information and the like so it might be of assistance if they're able to get here.


Then tomorrow the hospitality matter will commence at 9.30.  We're seeking at the commencement a short joint oral submission by - I should have said, Ms Thomson, you can say whatever you wish to say about RCI's claims today as well.


MS THOMSON:  Thank you.


JUSTICE ROSS:  The Associations and United Voice making a short joint oral submission on the agreed items, even if that's taking us to the relevant bits of the written material that support it.  I'm particularly interested in the bits that support the competency based apprenticeship material and the training.  On the face of it the proposed variation is really the same as the outcome of the apprentices' case.  There's one minor change where I think an employer or an employee can request certain information but other than that it looks like it's the same.  Then we'll proceed with the Associations putting their argument in support of their submissions and in relation to the tool allowance response to United Voice, then United Voice in reply.


Look, at the end of it even though that's the structure no one's going to be denied an opportunity to say something.  If you've forgotten something earlier, just get up and say it later.  If there's something that's raised in reply that you want to comment on then you should feel free to do that as well.  The objective is to make sure that you've each had an opportunity to say everything you want to say.  Now this might become more apparent this afternoon when we make some observations about some of the claims, but it does seem to us there might be a benefit in further discussions, particularly between United Voice and the Associations about some of the matters that are still outstanding, and for that purpose they can either be direct discussions or Lee C would be available to assist the parties on request on Wednesday morning.  The idea is that we would come back at 2 pm on Wednesday afternoon.


The purpose of that is to see if there's been any outcome of any of the discussions but also I'm conscious that we gave you the background paper relatively late, although mostly it just sets out what you've said in support of your claims.  But out of an abundance of caution you can choose to deal with any issues in the background paper during the course of your oral submissions, either today or tomorrow, or we have 2 pm on Wednesday and you can come along then and say anything you wish to finally say about those matters.  Everyone clear about the process?  Any questions about any of that?  No.  Right, well let's call your first witness, Mr Ward.


MR WARD:  Mr Kris Raymond Bunder.


THE ASSOCIATE:  Please state your full name and address.


MR BUNDER:  Kris Raymond Bunder, (address supplied).

<KRIS RAYMOND BUNDER, SWORN                                          [10.30 AM]

EXAMINATION-IN-CHIEF BY MR WARD                                   [10.30 AM]




MR WARD:  Mr Bunder, can you hear me okay?‑‑‑Yes, I can.


JUSTICE ROSS:  You might just speak up a little bit into the microphone, Mr Bunder.  We're having trouble picking you up?‑‑‑Certainly.


Thank you?‑‑‑Is that better?


Yes, it is, thank you.


MR WARD:  Mr Bunder, are you the business owner of café Del Giorno's?‑‑‑Yes.


Is it the case that the business opened in March 2000 in Port Lincoln, South Australia?


JUSTICE ROSS:  You don't need to take him through his statement.  You just need to get him to attest that it's true and correct.


MR WARD:  Thank you, Commissioner.  Mr Bunder, could you attest that your statement is a true and correct reflection of the evidence you're giving here today?‑‑‑Yes.


Thank you.

***        KRIS RAYMOND BUNDER                                                                                                            XN MR WARD


JUSTICE ROSS:  Mr Bunder, is that statement of some 26 paragraphs that you've got in front of you there?‑‑‑Yes, it is.


Do you want to tender the statement?


MR WARD:  Yes.


JUSTICE ROSS:  I'll mark this statement exhibit RCI1.



JUSTICE ROSS:  Cross-examination?


MR BULL:  I've got a statement which has got 23 paragraphs.


JUSTICE ROSS:  Right.  What statement?  This is a problem with the other Brailey statement too.  Which one are you relying on?


MR WARD:  Apologies, the statement dated 24/07/2018.


JUSTICE ROSS:  Tender that statement, hand it up now, the one you've got, thanks.


MR WARD:  Apologies to the Commission.


JUSTICE ROSS:  That's all right.  I'll just come back to you, Mr Bunder?‑‑‑Yes.


So the statement I'm talking about is the one that's signed by you and dated 24 July 2018?‑‑‑Yes.


It's a four page statement of 23 paragraphs.  Do you have that?‑‑‑Yes, I do.


Do you say that statement is true and correct?‑‑‑Yes, I do.

***        KRIS RAYMOND BUNDER                                                                                                            XN MR WARD


Thank you.

CROSS-EXAMINATION BY MR BULL                                         [10.32 AM]


MR BULL:  Sir, would you - it might be easier if I just stay seated because of the microphone.


JUSTICE ROSS:  Sure, that's fine.


MR BULL:  Is that okay?  No disrespect.




MR BULL:  Mr Bunder, do you also have in front of you some material which was produced to the Commission?  So you have trading accounts for your restaurant which are part of Café Development Pty Ltd for the year ending 30 June 2018?‑‑‑Yes, I do.


Then there's a further profit and loss account for the same period?‑‑‑Yes.


That's a two page document?‑‑‑Yes, it is.


Then you've got a list of a table containing junior employees called the Junior Employee Register?‑‑‑Yes.


Then that should be it in terms of the documents you have in front of you?‑‑‑Yes.


Do you also have a copy of the South Australian Liquor Licensing Act 1997?‑‑‑Yes, I have that on my iPad in front of me.


I think there's also a general document Liquor Licensing Act 1997 General Code of Practice Guidelines.  Do you have a copy of that document?‑‑‑Yes, I do.


Now just to clarify, you employ in your business seven full-time staff?‑‑‑Correct.


And 20 casual staff but that can increase to 23 casual staff in the summer season?‑‑‑Yes.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


So in total you employ 27 up to 30, that's correct?‑‑‑Yes, I will another employ another two to three people in the next - in the next month.


The full-time staff are all adult employees paid the adult rate?‑‑‑Yes, three of them are apprentices so - but they're all - yes, they're all adult - - -


So they're apprentice - - -?‑‑‑apprentices at the moment.


Sorry.  They're apprentices?‑‑‑Apprentice chefs.


Chefs, so they're not involved in the service of alcohol?‑‑‑No, they're not, no.


So the other full-time staff are more mature or senior floor staff?‑‑‑Yes, they are.


They're all adult employees and involved in the service of alcohol?‑‑‑Yes, they are, yes.


They've all completed the responsible service of alcohol qualifications that they're - - -?‑‑‑They certainly have.


- - - that they're required to complete under South Australian legislation?‑‑‑Yes.  Yes.


Now of the - so effectively the junior staff you employ, are they kitchen staff or are they front of house staff?‑‑‑So on the schedule that I've got dated 19/11, the two top ones, the 16 and 17 year old are both kitchen staff.  The three - two 18 year olds and one 19 year old casuals, they are in the service - well they serve alcohol.


So the reason the first two don't serve alcohol is because they work in the kitchen?‑‑‑Yes, that's correct.


The two 18 year olds and the 19 year old, are they - would you describe them as waiters?‑‑‑Yes, they're wait staff (indistinct).


Beg your pardon?  Wait staff?‑‑‑(No audible reply)

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


Can you hear me, sir?‑‑‑Yes, yes, they are wait staff, yes.


Those three have completed the responsible service of alcohol certificate?‑‑‑Yes, they have.


Now you've said they serve alcohol.  So you're paying them at the adult rate because they serve alcohol?‑‑‑Yes.


Do you have any wait staff who don't serve alcohol?‑‑‑No.  We previously did employ them.  We previously employed 16, 17 year old young people to deliver food in the restaurant but it became - because we're fully licensed it becomes too hard because they can't - they can't deliver alcohol.  So we've now gone to employ more 18, 19 year olds who can deliver the alcohol.


JUSTICE ROSS:  Mr Bull, can you assist me.  What's the adult rate?


MR BULL:  The adult rate - - -


JUSTICE ROSS:  What is it payable?  What age is it payable at under the Restaurant Award?


MR BULL:  Effectively 20.  So the adult rate for this Grade 2 is $20.22 an hour.


JUSTICE ROSS:  It was really the year of age.


MR BULL:  When they're 20 years of age.




MR BULL:  We're going to make submissions about the differential.


JUSTICE ROSS:  No, that's fine.


MR BULL:  But they stop being junior at 20.  So your business is - it's a restaurant. Is that a correct characterisation?‑‑‑Yes.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


So you principally - - -?‑‑‑Yes.


You're not a bar.  You're principally involved in serving meals and you've got a license?‑‑‑Yes.


So if people want a glass of wine - - -?‑‑‑Yes.


- - - or a beer with their meal they can - - -?‑‑‑Yes.  We have a (indistinct) license.


All right?‑‑‑So with that license we are not allowed to serve at the bar.  Like you're not allowed to stand at the bar and drink.  You must be seated.  So with the restaurant - with the Liquor Licensing Act in South Australia it means that they must be seated to have alcohol.


And do you have the equivalent of a maitre d', or a head waiter?‑‑‑Yes, we do.


You don't have a sommelier or a wine waiter?‑‑‑No.


And you've chosen not to have that structure?‑‑‑Yes.  So we're sort of more casual dining.  We're not a fine dining restaurant.  We have a full wine list and a full list of alcohol behind the bar but we're sort of more casual dining.  So we choose to - it's either myself or my assistant manager is the maitre d' and we have other staff that work the floor.


How comprehensive is your wine list?‑‑‑We have probably 35 to 40 bottles on the list ranging from sparkling right through to red wines.


So with the 18 year olds rather - you're essentially asking this - well, a 16 year old - are any of the junior staff related to you?  Or your children?‑‑‑No.


Okay.  You understand that in South Australia that someone under 18 is not supposed to consume alcohol on licensed premises?‑‑‑Yes.


Would you generally be using one of your mature staff in terms of taking wine orders and so forth?


JUSTICE ROSS:  What do you mean by mature staff?

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


MR BULL:  Well, someone over the age of 20 whose worked in your establishment for some time?‑‑‑Ah, yes.  We would - we encourage - during the day we have a bar service.  So people go to the bar to get themselves a drink so all the alcohol is served by that bar person.  That bar person is generally a more mature aged person that has barista experience with coffee and (indistinct).  So in South Australia we have to have a responsible person - like an RP - that is badged and on duty at all times.  So that person, generally, is a more senior staff member, myself and my managers or the senior staff manager that has been badged and then at the evening times is when we employ more staff and we do full table service.  So that's where our 18 and 19 year old floor staff will take (indistinct) to the table and then they will go to the bar, give the order to the bar person.  They will mix the drinks and direct the floor staff to whichever table that they need to go to.


JUSTICE ROSS:  Can I just - Mr Bunder, you've mentioned that during the day people go up to the bar to get drinks but earlier you had said that you didn't have a license that permitted you to sell alcohol directly from the bar.  It could only be served at the tables?‑‑‑No.  Our license doesn't allow the patrons to stand at the bar drinking.


Right?‑‑‑So they are allowed to come to the bar, buy themselves a drink and then they must go back to their table and sit down and consume their drink.


Okay.  No.  I follow, thank you?‑‑‑So they're not allowed to consume their drink at the bar or standing in the restaurant or we have an al fresco dining area - like an outside area - and if they are standing there drinking they are asked by our staff to please sit down.


Okay.  Thank you.


MR BULL:  Currently the junior staff that serve alcohol and have completed the Responsible Service of Alcohol qualification do they take wine orders or do they simply deliver the drinks to the table?‑‑‑No, they take wine orders as well.


Okay?‑‑‑At certain times they can (indistinct).


JUSTICE ROSS:  Just a minute, Mr Bunder.  We just have - no, no just a minute.  We're just having a bit of trouble with the microphone.  So the question was whether the wait staff - the 18 and 19 year olds both deliver drinks to the table as well as taking orders for wine and the like from the patrons at the table.  And as I understood your answer - - -?‑‑‑No.  This - - -

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


- - - the answer was "yes" to that?‑‑‑Yes.


All right.  Thank you.


MR BULL:  Okay.  For a junior employee under the age of 18 they should theoretically not be in much of a position to advise your customers about which particular wine to have and so forth because one would assume they haven't been consuming all your wines.  You'd agree with that proposition?‑‑‑Yes.


So they'd be able to give fairly limited advice if a customer asks, "What's your best rose?" or - - -?‑‑‑Yes, I mean in our - in my restaurant they would be employed as a food runner only.


Okay.  And that would - - -?‑‑‑Which we currently do not have any of those employees on our register.  So they would only be legally allowed to (indistinct) clear empty glasses and empty plates.


JUSTICE ROSS:  Can I just explore that with you, Mr Bunder?  So this is someone who - you don't have any of these employees at the moment - wait staff who are - - -?‑‑‑No.


- - - 16 or 17?‑‑‑Yes.


And you mentioned that they can only legally remove empty glasses.  They can't deliver or serve alcohol.  Can you just expand on that point a little bit for me?‑‑‑Well, that's my understanding of the laws.  So if we had a 16 or 17 year old person taking an order at the table they could take a food order but they would not be allowed to take an alcohol order for drinks.


All right?‑‑‑I would need to get another staff member to come over to the table that is of age - 18 or over - to take that order for alcohol and deliver that order to the bar person and (indistinct) to that table.


All right?‑‑‑So that we would only employ them as what we call in the industry - a food runner.


Yes.  Okay.  So, really, the claim before us really relates to the 18 and 19 year olds who are - - -?‑‑‑Yes.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


- - - legally allowed to serve alcohol provided they've got their RSA?‑‑‑Yes.


But at the moment the award requires them to be paid at the adult rate.  Is that right?  That's the focus of your concern?‑‑‑Yes.  That's correct.


Yes.  Okay.  Thanks.


MR BULL:  And you've chosen in relation to the wait staff that you currently employ that are over 18 to - you've directed them to serve alcohol and so forth and you're paying them the adult rate - that's correct?‑‑‑That's correct.  Yes.


Okay.  Now just in relation to your - the profit and loss statements that you provided - last year, or rather this year, you effectively made a profit before income tax was paid of 204-odd thousand dollars?‑‑‑Yes.


JUSTICE ROSS:  I might note for the record this aspect of the transcript will be marked as "confidential" having regard to the scope of the confidentiality orders issued by Commissioner Lee.


SHORT ADJOURNMENT                                                                  [11.05 AM]

RESUMED                                                                                             [11.08 AM]

<KRIS RAYMOND BUNDER, RECALLED                                   [11.09 AM]



JUSTICE ROSS:  Mr Bull, you were just asking about shift lengths, I think.


MR BULL:  Yes, I think.  Mr Bunder, can you hear me?‑‑‑Yes, I can.


So I think you were telling us with your kitchen staff they all work split shifts?‑‑‑Not all of them, no.  So we have a variety of split shifts and straight shifts.


By split shifts you mean some of them start the breakfast service, work till - - -?‑‑‑Not breakfast service, it would be a lunch and then dinner service together.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


So they start, what, lunch at 10 o'clock or something, or 11?‑‑‑Yes, so say 10 o'clock till three, and then they have a break for two hours, come back at five and go through till close which could be 10, could be 10.30.


So when do they start the evening shift?‑‑‑About 5 o'clock normally.


Are they rostered till 10 or - - -?‑‑‑They're rostered until required so we use an until required scenario.  So that's - if it's a busy night, they may go past 10 o'clock. They may go till 10.30, 11 and that's when we need to give them a break.  Sit them down for half an hour and then bring them back into the kitchen to clean up.


But those working split shifts generally if all goes to plan, they won't need a break because neither of the split shifts will be greater than five hours?‑‑‑No.  That's correct, yes.  It's the breakfast shift and the evening shift or the afternoon shift that requires the breaks.


The evening - - -?‑‑‑So we have a breakfast - - -


Sorry, sir?‑‑‑We have a breakfast shift that starts at 7 am.


JUSTICE ROSS:  I tell you what, why don't you just run us through - - -?‑‑‑And finishes at three in the afternoon.


Just run us through the shift arrangements you operate and broadly who they apply to?‑‑‑Okay. So in the kitchen we run a 7 am breakfast cook, so they will go from 7 am till 3 pm or 4 pm and they will have a break after five hours. So normally around 11.30 or 12 o'clock.  Then they'll go three till two, three or four, depending how busy it is.  Then we have two people come on for a split shift in the kitchen, so our main shift comes on at 9 o'clock.  Our other shift comes on at 10 o'clock, they go through till somewhere between two and 3 pm, and then they break, then they both come back at 5 pm.  We have a kitchen hand that comes on at 11, finishes at three, comes back at six and goes through till close, and we have an afternoon shift starting at 2 pm and finishing at - somewhere between 9.30 and 10.30 at night.  That's our kitchen.  Front of house is very similar, so we have four staff generally on Monday to Friday, five staff on Saturday and Sunday.  So generally we have a 7 o'clock person that comes on and works through till 2 o'clock, 3 o'clock.  7.30, again works through till probably 3.30 or four, and then a split shift person comes on at 9 o'clock and we have another straight shift person comes on at 8 o'clock in the morning.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


The 9 o'clock split shift, how does that work?‑‑‑So that's our managers like myself or my assistant manager or duty managers, they do nine till two, so it's just a straight five hour shift and then they come back at five till they close the restaurant.


Yes, and what's the other straight shift?‑‑‑So the other straight shift is 2 pm till close, so they come on the same time as the kitchen staff do and then they run the afternoon, run the restaurant in the afternoon and then they have a break, a tea break normally at night time and then go through till close.


MR BULL:  What time is close generally?‑‑‑Generally - winter time generally it's 9.30 to 10 o'clock.  Summer time when it's - with daylight saving it's normally 10.30, 11 o'clock.


Now you - - -


COMMISSIONER LEE:  Sorry, Mr Bull.  Can I just ask, is there a liquor licence restriction on when service of alcohol has to cease?‑‑‑No.  No, because we're a restaurant licence, providing we've served - we can serve alcohol at any time while we're open providing the patron is seated.




MR BULL:  You're probably the hardest person working in your restaurant.  You'd agree with that proposition?‑‑‑Yes.


What time do you generally get there?‑‑‑I get there at 8 o'clock in the morning.  I go - sorry?


You'd often be there till close?‑‑‑Yes.


You find that you need to take a break don't you, sometime during the day when you work - - -?‑‑‑Yes.  Yes, I'm not as young as I used to be so, yes, I do need to take a break, sit down for a meal and - yes.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


So you'd often have a lunch break?‑‑‑Generally no, I don't eat lunch normally.  So I would normally go through eight till probably four or 5 o'clock without a break.  But I mean some of that time is me sitting down in front of my computer and looking at the business and working out prices and talking to suppliers.  So it's not - I'm not always on my feet because my staff generally are.  So I'm not working the floor as we say all the time.  I do get to sit down at times and use my computer and do things as well.  So I'm not physically (indistinct).


There's obviously particular service times when your restaurant is busier than other times.  You'd agree with that proposition?‑‑‑Yes.


So obviously lunch starts to get busy at about midday and finishes around three.  Is that correct?‑‑‑We get busy (indistinct).


We're having trouble again with the link.


JUSTICE ROSS:  Can you just talk into the microphone for us, Mr Bunder.  Have you got much more?


MR BULL:  Not much.  Is that better?  Mr Bunder, what I'm saying is - - -?‑‑‑The microphone's right in front of me so I'm not sure what's happening.


I think it's better if you talk directly into the microphone.  So the staff on their feet, that's obviously a more tiring work experience than you because you have the capacity to spend some of your time in the office and sit down.  You'd agree with that?‑‑‑Yes.


Do you currently have any of your staff on individual flexibility arrangements?‑‑‑No.


Do you understand that an individual flexibility arrangement needs to place the employee in a better off position than they would be under the award?‑‑‑Yes.


You're proposing that to do a - what we'll call an IFA where they - - -


JUSTICE ROSS:  Are you moving in the merits submission or - - -


MR BULL:  Well, I'm asking him some questions about what he'd proposed to do in relation to possible individual flexibility arrangements.



***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


MR BULL:  Essentially, if you just have an arrangement where they don't get a break, that wouldn't necessarily qualify as a valid individual flexibility arrangement under the award.  You need to - - -


JUSTICE ROSS:  Are you asking him for a legal opinion?


MR BULL:  I'm not asking for a legal opinion.  In terms of individual flexibility arrangements that you would propose to do with your staff, what benefit would you provide to them in relation to not providing the award provisions in relation to breaks?‑‑‑Well, it's going to allow them to get to go home earlier.  So we have a number of staff that do an afternoon shift or an evening shift that have been at school maybe or have been at - this is their second job, and once their shift goes past six hours, we need to sit them down or five hours, as per our award. We sit them down for a half an hour break.  It means that they cannot - they get to go home half an hour later than they normally would (indistinct) cleaning the kitchen up or restocking the kitchen for the next day, or doing the bar, restocking the bar as the front of house staff. So they have come to me personally, I have not approached them, and they have said can we sign a waiver to say that we don't want to take a break, we'd rather do our seven hours or six and a half hours and then go home?  So that's purely the reason for my suggestion to this arrangement, that we be able to sign and (indistinct) an agreement with our staff that they do work - now I'm not saying we want them to work eight or nine hours and I'm not saying they want to work a silly amount of hours, but the current situation does restrict us in allowing them to get home at a reasonable hour and that's the main reason for us asking for this change.  I know when I was a young employee in the industry in the late 80s I would rather work through my shift and go home early than be there at 11 o'clock at night.  It gives (indistinct) sit down for half an hour and have a meal break.  So that's the general reason from our point of view.


Do you provide your staff with a staff meal?‑‑‑Yes, we do.


Okay, so you currently don't charge them?  You provide them with a staff meal?‑‑‑If they're on a designated meal break then yes we do have a small charge for the meals.


JUSTICE ROSS:  What do you charge for the meal?‑‑‑It's our cost so it's our - it's like a $5 meal break.  If they have a - if they want to have a meal after their - in the middle of their split shift they are able to do that.


Right.  Thank you.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


MR BULL:  So if you could do these individual flexibility arrangements where they could work eight hours and just go home then it's likely then that they wouldn't even have a meal, they'd just go home.  You'd agree with that?‑‑‑Yes and no.  We would provide them with a meal at the end of the night to take home if they wished.  Yes, but we're not - we're certainly not asking for an eight hour shift.  No, I think that's a bit too much to ask someone to do an eight hour shift.  But generally our shifts last six, between six and seven hours.  That's our - the majority of our shifts that we could do without a break.  The ones that go eight, nine hours like the 7 am till three, which is an eight hour shift, then we give our staff breaks.


The award - - -?‑‑‑In those shifts.


The award requires you to have a half an hour unpaid break after five hours of continuous work?‑‑‑That's correct.


And you have some - particularly when it's busy you'll require staff to be on shift for longer than five hours?‑‑‑Yes.


And the longer shifts will generally coincide with when your restaurant is particularly busy.  You'd agree with that?‑‑‑Yes, that's correct.


So they'll be more intense periods of work?‑‑‑Yes.


So for your kitchen and your floor staff they'll be working harder for those hours in which they're working than if it's slow.  You'd agree?‑‑‑Yes.


So if you're on your feet as a waitperson you'd agree that you do get tired after five hours in a busy restaurant on your feet serving people?‑‑‑Yes.


And whether they want to go home early or not, there is some good occupational health and safety reasons for them to take a break and have the opportunity to eat a meal?‑‑‑That's correct.


Many of your staff drive home?‑‑‑Yes.


And if you've been working for nine hours in a busy restaurant on your feet without a break, you'd agree that that likely increases the risk of fatigue and the possibility of an accident as they drive home?‑‑‑Yes, but we would not make our staff work nine hours without a break.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


But you're asking for the capacity to do an arrangement where you're not obliged to give your staff a break after five hours.  That's correct, isn't it?‑‑‑Yes, but there would be - if we were able to do that then I would imagine that there would - we would put limits in there as to the length of those - of that shift.  So we would not - I personally in my restaurant would not make my staff work more than seven hours without a break.


MR WARD:  If I may, Commissioner?  The submissions pertain to flexibility not a requirement.


JUSTICE ROSS:  Well, the flexibility waives the requirement, that's why the question is being asked.


MR BULL:  Can you - - -?‑‑‑So what we're saying is that it would be flexible between the employer and employee and again that would need to be signed off by I imagine Fair Work Australia so that the employee isn't exploited.  I know for a fact, and I can honestly sit here and say I would not expect my staff to work seven or eight hours straight without a break.


But you've spoken about people wanting to get home early and so forth.  That's the principal reason you've given why there's some desirability in having the capacity to exclude breaks.  That's correct?‑‑‑Yes, it is.


And if you have a busy chef who wants to get home early and wants to not have a break, that wants to work a nine hour shift, even though that person wants to get home early you'd agree it would contribute to that person being more fatigued after nine hours of continuous work than if the person had worked nine and a half and taken a break and had a meal and some time out, so to speak?‑‑‑Yes, I would agree with that.


So that even though the person was in the workplace for a longer period, with a break that person would be less fatigued at the end of their shift?‑‑‑Yes.


And particularly if that person has to drive some distance it would be safer for that person?


JUSTICE ROSS:  Well, let's not drift into hypotheticals.


MR BULL:  All right, I won't drift into hypotheticals.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


Do you have many occasions where you're simply unable to give staff a break because you're so busy?‑‑‑There are times certainly when we need the staff to be in the kitchen.  But that's when I would normally step in and help out and put that person on a break because I cannot afford to pay overtime wages for that person.  Like it's just unsustainable to pay the extra wages just because it's busy.  So I'm in a lucky position I suppose that I'm a chef so I can step in and help out.  So we generally have to negotiate our roster system so that, you know, we adhere to the legislation and where our - what we're asking is that if it's a little bit more flexible within individual employees then we could be a little bit more flexible with our roster and allow them to just sort of pick and choose when they have a break.


You've said in your statement that being able to have flexibility, individual flexibility agreements which effectively avoid the award provisions concerning breaks would reduce your overall wage costs and allow you - I withdraw that.  You're saying that it will reduce your overall wage costs.  Is that the principal reason why you believe the facility to make these agreements would benefit your business?‑‑‑It's probably not the principal reason, no.  I think it's - from my reasoning it's serving customers better.  Having all of the staff on at the busy times is better for me, it's better for my customers.  They get served quicker, they get what they pay for and then they in turn come back and become repeat customers.  We do have issues when we have got less staff on about service and service issues and service standards.  So generally if I was able to keep all of my staff on at the busy times then we're able to provide a better service to the customers and that would in turn create better revenue for the restaurant.


You've said that you would, in terms of just your management, not allow staff to work 10 hours straight.


JUSTICE ROSS:  No, he said he wouldn't allow them to work nine hours without a break.


MR BULL:  That was your evidence, you wouldn't let them work nine hours without a break?‑‑‑No, I wouldn't.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


And why would you not let them work nine hours without a break?‑‑‑Because it's unsafe, as you said, and it's not going to - it's going to make them tired, they're going to make mistakes, they're going to make errors. So we have to look after - I've got to look after them as employees, which in turn looks after my business.  So making someone work nine hours without a break is - it's going to damage my business, it's going to damage them personally, so that's the reason I said that.  I've worked in this industry for the 35 years.  I've worked nine, 10 hours straight before and it's not that much fun.  So that's the reason I would not allow my staff to work.  I have had staff in the past that I have had to force to go on a break.  They don't want to have breaks - some of them - so you have to say to them - from now I'm not paying you for the next half an hour.  So it's - yes, an issue within the hospitality industry.  It always has been and I believe it always be.


And you'd agree that the current award provision requiring a break after five hours is essentially directed to that issue about acknowledging that the work can be tiring and that staff need a break after five hours of continuous work.


JUSTICE ROSS:  Yes.  This witness's evidence about the purpose of the award provisions is not going to assist us.


MR BULL:  Okay.  I withdraw that.  That's my cross-examination of this witness.


JUSTICE ROSS:  Thank you.  Mr Bunder, can I just ask you a question?  Going back to the liquor licensing issue and the proposal is that - particularly in relation to your business - that 18 and 19 year old's who serve alcohol would not be required to be paid the adult rate.  And in your evidence you have indicated that that will provide a saving to you because you will be paying those employees of the 18 or 19 year old rate, rather than the adult rate.  Now these are the - I take it these are the full-time employees that we're talking about?  Or these are the casuals or - - -?‑‑‑Ah, no.  Mainly this is casual.


Okay.  And how many casuals do you have in that category?  So people who would be wait staff in that 18 to 19 year old bracket?‑‑‑Three.


Okay.  So if the variation was granted there would be a saving to your business of the difference between the 18 and 19 year old rate for those three casuals and the 20 year old rate.  Is that right?‑‑‑That's correct.


And how many hours do those casuals roughly work a week?‑‑‑It varies.  So one of them it's her second job so she would only do about 15 to 20 hours a week.


Yes?‑‑‑The other two it's their only job so they could range from 25 up to 35 - 38 hours a week.


Okay.  And - - -?‑‑‑It changes.  It changes on a weekly basis.


No, no.  I understand.  I just wanted to get a rough.  And you indicated that you would change your employment arrangements if this change was made?‑‑‑Yes.

***        KRIS RAYMOND BUNDER                                                                                                            XXN MR BULL


And can you just tell me what would you change if the variation was made so that those wait staff serving alcohol who were 18 and 19 are paid their 18 and 19 year old rate and not the adult rate?‑‑‑Yes.  So it would encourage us to employ more 18 and 19 year old staff.


So - yes?‑‑‑Say, instead of getting older staff we would be encouraged to employ younger staff.


All right?‑‑‑It would give them a start-up and give them experience in the hospitality industry so when they go to university or they go to Adelaide to study or somewhere they've got - - -


All right?‑‑‑- - - a lot of our young kids in Port Lincoln head off to Adelaide without experience.


Okay?‑‑‑And they go to the university and they can't find jobs.


Yes?‑‑‑So that would be one - that would be one reason.


Well - - -?‑‑‑And it would encourage me to employ more 18, 19 year olds to improve my wage.


Okay.  So is it fair to say that it would shift the age demographic within your existing number of employees?‑‑‑So at the moment you employ seven full time and 20 casual with some increase over the peak period.  But of those 27 I think you're one of the full-timers.  So the 26 people you employ you're saying, as I understand it, that if this change went through then you would have a preference or be encouraged to employ more 17 and 18 year old wage staff in that mix, rather than employing more mature wage staff?‑‑‑Yes, that would be correct.


Okay.  All right.  Thank you.  Any re-examination?


MR WARD:  Very quickly.

RE-EXAMINATION BY MR WARD                                               [11.33 AM]


Mr Bunder?‑‑‑Yes.

***        KRIS RAYMOND BUNDER                                                                                                          RXN MR WARD


Is it fair to say, based on your experience that not all wait staff are created equal?


JUSTICE ROSS:  Don't lead.


MR WARD:  Apologies?‑‑‑Yes.  That's fair.


Based on your experience are wait staff who are more senior and have more experience better able to carry out their duties?‑‑‑Yes, with more experience they certainly are.  Yes.


Comparing apples to apples if you had a junior employee with limited experience next to a more senior employee and they were both to be paid the same rate, as an employer, who would you employ?‑‑‑A senior employee.


And based on your interpretation of the award are you able to clearly distinguish between the definitions of service versus dispensing and selling?


JUSTICE ROSS:  How does that arise in cross-examination?


MR WARD:  I'm sorry?


JUSTICE ROSS:  How did that arise in cross-examination?


MR WARD:  It goes to his understanding of the award.


JUSTICE ROSS:  Well, I know what it goes to.  But you're doing re-examination here.


MR WARD:  It's withdrawn.




MR WARD:  Moving on to the break provisions, Mr Bunder?‑‑‑Yes.


Through your personal experience in hospitality are the peak times consistent and predictable?‑‑‑No.

***        KRIS RAYMOND BUNDER                                                                                                          RXN MR WARD


Also through your - - -?‑‑‑Well, they are in - - -


Sorry?‑‑‑They are in certain aspects lunch and dinner but we can have afternoons where we might get 30 or 40 people come into the restaurant.  So it is becoming more and more unpredictable as the population eats at different times.


Certainly.  Again, through your personal experience, are the needs of different employees consistent and predictable?  And I'll just expand on that.  Do you find that some employees fatigue faster than others or have differing requirements when it comes to the need for a break?


MR BULL:  I object to this.


JUSTICE ROSS:  Yes.  Look, this isn't an opportunity for you to lead evidence.  You've had that opportunity.  This is an opportunity for you to clear up anything that's arisen in cross-examination.


MR WARD:  Apologies.  Withdrawn.  I was just attempting to address Mr Bull's submissions on driver fatigue and the issues resulting from that.  I'll withdraw that.


JUSTICE ROSS:  For what it's worth, we take notice of the fact that people fatigue at different times.


MR WARD:  Thank you.


JUSTICE ROSS:  It's just a statement of the obvious.


MR WARD:  Would you say that there are specific times where breaks simply aren't plausible?  Based on the operations of your restaurant.


MR BULL:  I object to this.


JUSTICE ROSS:  No, you asked a question about this.


MR BULL:  All right.

***        KRIS RAYMOND BUNDER                                                                                                          RXN MR WARD


MR WARD:  Sorry, go on Mr Bunder?


JUSTICE ROSS:  The witness has already answered this question in cross-examination but - the witness's evidence was he was asked, "Are there times when it's not feasible."


MR WARD:  Mm'hm.


JUSTICE ROSS:  "To provide a break in the kitchen."  And he said, "Yes, there were and on those occasions rather than paying the overtime rate he would step into the kitchen as he's a qualified chef and he would undertake the tasks."


MR WARD:  Thank you, Commissioner.  If I can move on to - sorry that concludes.


JUSTICE ROSS:  Nothing further for Mr Bunder?




JUSTICE ROSS:  No?  Thank you very much for your evidence, Mr Bunder.  We'll let you get back to your café?‑‑‑Thank you.  Thank you very much.


All right.  We'll adjourn for five minutes while we get the link to Mr Braddon.

<THE WITNESS WITHDREW                                                          [11.37 AM]

SHORT ADJOURNMENT                                                                  [11.37 AM]

RESUMED                                                                                             [11.50 AM]




MR WARD:  Your Honour, Mr Francis Edmund Brailey.


MR BRAILEY:  Correct.


JUSTICE ROSS:  Just a minute.

***        KRIS RAYMOND BUNDER                                                                                                          RXN MR WARD


THE ASSOCIATE:  Mr Brailey, can you please state your full name and address?


MR BRAILEY:  Francis Edmund Brailey, (address supplied).

<FRANCIS EDMUND BRAILEY, AFFIRMED                             [11.51 AM]

EXAMINATION-IN-CHIEF BY MR WARD                                   [11.51 AM]


MR WARD:  I tender the witness statement, your Honour.


JUSTICE ROSS:  Mr Brailey, have you got a copy of a signed witness statement dated 24 July 2018 of some 18 paragraphs before you?‑‑‑Well, I've got 20 paragraphs.


Just a minute, Mr Brailey.  Mr Ward, where's your witness statement?


MR WARD:  Your Honour, it appears there are two versions circulating around - - -


JUSTICE ROSS:  Well, I want to know which one you want and then I want you to tender it.


MR WARD:  I do have the one with 18 paragraphs in front of me, if I can perhaps send that to Mr Brailey now.


JUSTICE ROSS:  Well, no, no.  Look, we'll stand down, get your witness statements sorted out.  Make sure your witness has got the right one and then we'll tender it.  If you need it printed you can talk to our Associate.

<THE WITNESS WITHDREW                                                          [11.52 AM]

SHORT ADJOURNMENT                                                                  [11.52 AM]

RESUMED                                                                                             [11.54 AM]

<FRANCIS EDMUND BRAILEY, RECALLED                            [11.54 AM]


***        FRANCIS EDMUND BRAILEY                                                                                                        XN MR WARD

***        FRANCIS EDMUND BRAILEY                                                                                                        XN MR WARD


JUSTICE ROSS:  Which statement?


MR WARD:  The witness has a copy of the 18 paragraph statement, your Honour.


JUSTICE ROSS:  So that's the one you're tendering?


MR WARD:  Yes, your Honour.


JUSTICE ROSS:  Mr Brailey, can I take you to the paragraph - the 18 paragraph statement which you've signed, dated 24 July?‑‑‑Yes.


Do you say that statement is true and correct?‑‑‑Yes, there's a minor typing error in it but that doesn't really change it.


Can you take me to the typing error?‑‑‑It's in clause 17.


Yes?‑‑‑The fifth line.


Yes?‑‑‑It says:


Typically staff do not compulsory -


And it should say:


Typically staff do not want compulsory meal breaks.


Right, thank you.  With that change, do you say the statement's true and correct?‑‑‑Yes, I do.


Thank you.  I'll mark the statement exhibit RSI1 - RCI1, sorry.  Two, sorry.



Mr Bull.

***        FRANCIS EDMUND BRAILEY                                                                                                        XN MR WARD

CROSS-EXAMINATION BY MR BULL                                         [11.55 AM]


MR BULL:  Just a few questions.  Mr Brailey, my name's Stephen Bull, I'm the representative of United Voice and I'm just going to ask you a few questions?‑‑‑Right.


You should have a few documents in addition to your statement.  There will be, I think, a payroll activity - a document titled Payroll Activity 5 November 2018, which - - -?‑‑‑I actually - yes, I do have that, yes.


Beg pardon?  Have you got that?‑‑‑I do have that.


Then there's an employee detail for Claire Cooper-Southam?‑‑‑Yes.


Then there's - - -


COMMISSIONER LEE:  Can I just indicate, consistent with the confidentiality order that I've made that the material in these documents is confidential and the transcript will reflect that.


MR BULL:  That's Lee C talking, Mr Brailey, and he's just indicating that your financial records, no one but us can look at them, and we can't talk about them and we won't?‑‑‑Okay, yes, (indistinct).


Then there's a profit and loss statement for 1 July 2016 to 30 June 2017?‑‑‑That's right.


I think that's it.  You've also got a copy of the New South Wales - - -?‑‑‑There's also a statement of ours there for Claire for that same week.


Yes, that's a payslip effectively.  Have you got a copy of the New South Wales Liquor Act?‑‑‑Yes, I was sent that too.


Now I'm just going to ask you a few questions.  So your restaurant trades seven days a week.  You've got five full-time staff, eight casual staff.  How many of those staff are kitchen staff?‑‑‑In the - we have two - sorry, one permanent in the kitchen and four casuals and we have two permanent front of house staff and the rest are casuals.


So you've got four casual kitchen staff?‑‑‑That's right.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


And none of those would be involved in the service of alcohol?‑‑‑No.


And you've got one permanent, that's the head chef?‑‑‑That's right.


And you brought that person in on a 457 visa?‑‑‑Well, no, the current head chef is actually not a visa holder.


Okay, because you indicated you had some sponsorship expenses.  Did that relate to a previous employee who - - -?‑‑‑Yes, I mean we have various other members of staff who are on 457 visas but the current head chef is not.


So you've got front of house staff on 457 visas?‑‑‑Yes.


And they're all over 20?‑‑‑Yes.


And that's indicated you've had some difficulty getting staff, that you've had to bring them in from overseas?‑‑‑Yes, that's right, particularly so right now.


Okay?‑‑‑I mean we didn't actually bring them from overseas.  They were already here and they applied for a job with us while they were here.


So another employer had sponsored them and they'd changed employers?‑‑‑Yes, that's right or we - they came and worked for us while they were on a different type of visa and then they applied for a 457.


And they're wait staff?‑‑‑Yes.


And that's an indication of the general difficulty of getting wait staff in the particular part of Sydney you're located?‑‑‑That's correct.


And you pay those staff on the award?‑‑‑Well, I think they're all paid above the award these days.  I mean that - normally speaking they start work for us on the award and then if they prove themselves they get a review.


All right, so they're on common law contracts where you pay in excess of the award?‑‑‑That's right.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


So you've got two of your wait staff on 457s, is that correct?‑‑‑I think one of the 457s has recently received permanent residency but, yes, generally speaking that's true.  I mean the thing is that we have quite a heavy staff turnover so between the time when I made this statement and now there could have been changes, and you're asking me questions about what the current situation is.


Okay, fair enough.  Because in your current - when you made this statement in July you've got 13 staff.  Is that still the case?‑‑‑Yes, well it's probably higher now because we're busier now.


All right, so - - -?‑‑‑But not, you know, hugely different.


And the mix seems to be you've got about a little under 40 per cent in the kitchen and the rest are front of house.  Is that about right?‑‑‑That's about right, yes.


Okay, and you've only got one person who is under the age of 20?‑‑‑That - currently that's correct.


All right, and that person - forgive me if I haven't read it in your statement - that person doesn't serve alcohol?‑‑‑No.  No, she has - she doesn't have an RSA.


So she couldn't serve alcohol.  She can't serve alcohol because she's not qualified under the Liquor Act to serve alcohol?‑‑‑That's right.  If she got an RSA she could serve alcohol.


And you'd have to pay her the - - -?‑‑‑But she doesn't have it.


You'd have to pay her the adult rate?‑‑‑That's right.


So if this variation to the award which your Association proposes became the award it would make no difference in relation to your current junior employee because she doesn't fulfil the qualifications under the legislation that would allow her to serve alcohol?‑‑‑That's correct.


Okay and she's a productive, useful employee?‑‑‑Yes, she's actually been with us for quite a while and, you know, we encourage her to get an RSA.  So far she hasn't.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


And Samantha - sorry, I withdraw that - Clare, how old is she now?‑‑‑Nineteen.


Nineteen.  Is she a full‑time or a casual employee?‑‑‑Yes, she's a casual.


How many hours a week does she work?‑‑‑Well, it varies but normally speaking about 12 to 16, say.


Is she a student?‑‑‑Yes, she is.  She's a uni student.


And you've asked her to get a Responsible Service of Alcohol certificate and she just hasn't had the opportunity or decided not to do it?‑‑‑Well, that's right.  I think her studies, they're sort of taking up most of the time that she's not working and that's probably the reason.


Is there any reason why in your business you only appear to have one person under the age of 20 working in your café?‑‑‑No, there's no reason.  We'd like to employ more young people but unfortunately we don't get people with the right attitude who stay long enough.  You know, the - I think they find it a bit hard or something like that.  I don't know.  I mean, Clare's actually a very - she's got a great attitude and, you know, other people come and go.  We've actually had - over the - I mean we've been there for seven years and we've had lots of juniors over that time but they haven't stuck it out for whatever reason.


And it's got nothing to do with the award or the legislation concerning serving alcohol that you've had difficulties with maintaining junior staff.  Is that correct?‑‑‑Yes.


And just for the benefit of the Bench who may not know Sydney well, you're in somewhat of an obscure pocket of Sydney?‑‑‑Well, I wouldn't call it obscure.  It's on the shores of Pittwater on the southern shores and it's a very built up area.  It's - there's a lot of population in that area.  It's sort of not on the fringes or anything like that.


But there's a population on Scotland Island and on the bays around?‑‑‑Yes.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


There's only one bus service that goes past your restaurant, is that correct?‑‑‑Yes, that would be correct.  I mean, Mona Vale is about two kilometres away and Mona Vale is a very big transfer - transport hub.  The bus that goes past our café is a bus that actually terminates about two kilometres past us and then you've got national park.  But no, our café is sort of, you know, in a very built up area and there's lots of traffic goes past it.


Okay, and theoretically young people who might be living with their parents who could work for you?‑‑‑I'm sorry, what was the question?


Theoretically young people who might be living at home with their parents who could work for you?‑‑‑Yes.  Yes, there are.  There's a sort of major high school within a kilometre and the area is a normal family residential area.  Scotland Island would be an exception really because, you know, it's offshore from us and I mean there wouldn't be that many sort of living over there I wouldn't think.


Fifty per cent might be holiday houses?‑‑‑Yes, that's correct.


MR WARD:  Well, this - - -


MR BULL:  I'll move on.


JUSTICE ROSS:  Yes.  Good.


MR BULL:  Quickly, just in terms of the style of your restaurant, do you have a full wine list?‑‑‑We do.


How many wines do you serve?‑‑‑Well, it changes all the time but, you know, we - at any time we would have maybe 20 on the list and, you know - - -


Sorry, sir?‑‑‑ - - - as far as beer in concerned we probably stock, you know, a dozen.


You've chosen not to have a sort of wine waiter division of labour within your café?‑‑‑Well, we don't really - we're not big enough to do that.  You know, to have a specialist wine person (indistinct) and BYO as well and, you know, a lot of people bring their own wine.


The phone just went a bit funny, I don't know whether you changed how you're holding it.  Do you understand that in New South Wales a minor is defined as a person over - under 18 and by the legislation can't serve alcohol?‑‑‑Yes, I do.


So if there was this variation to the award it would only effect junior employees essentially over 18 and before they turned 20?‑‑‑That's correct.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


So you'd still have the issue where persons under 18 wouldn't be able to serve alcohol because of the way of the liquor law works in New South Wales?‑‑‑Yes, that's currently the position.


Do you also know that there are penalties that apply to a licensee and also a person other than the licensee who supplies liquor to an intoxicated person on licensed premises?‑‑‑Yes, that's right.


So a person between the age of 18 and 20 who has the responsible service of alcohol certificate, who mistakenly serves alcohol to an intoxicated person can themselves be liable to a fine?‑‑‑That is correct.


JUSTICE ROSS:  Which section?


MR BULL:  That's section 73(2) of the Liquor Act 2007 New South Wales.


JUSTICE ROSS:  Thank you.


MR BULL:  So in a practical sense the limitations of the award in relation to having to pay the adult rate if the junior serves alcohol hasn't actually affected your business at all.  That's a correct statement, isn't it?‑‑‑Currently that's correct, yes, but in the future it may change.


But it hasn't had any practical effect because Claire for whatever reason has not sought to obtain the responsible service of alcohol certificate?‑‑‑Yes, that's currently the position.


You believe it would assist you because it would reduce your potential labour costs because you could hire persons over the age of 18 and under the age of 20 with the responsible service of alcohol certificates and you could pay them less than the adult rate?‑‑‑Yes.  That's correct, but that's not the total story but that particular statement is correct.


Thank you.  Now just in relation to the financial material which you've supplied?‑‑‑Yes.


If you can look at the profit and loss statement?‑‑‑Yes.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


Your net profit - this is for the year ending 30 June 2017 - was $146,000?‑‑‑That's right.


Your principal expenses were wages and salaries?‑‑‑Yes.


Did you pay yourself a wage?‑‑‑Well, I don't get paid.  It's actually my son's business and the other thing to remember is that he is not an employee, he owns the business through a trust and the net profit gets distributed to him, so effectively he doesn't get paid either.


So you didn't take any wage from the business?‑‑‑No.


You're the licensee?‑‑‑Correct.


You say your son doesn't take a wage?‑‑‑No, no, he gets the trust distribution.


Right.  With your 13 or 15-odd employees, how many - you've been involved in the business since it started?‑‑‑Since it started, yes.


It started in 2012?‑‑‑Yes, that's correct.


It's broadly been profitable since it started?‑‑‑No, no, the first three or four years we made a loss every year.


Have you ever done an individual flexibility arrangement with any of your employees?‑‑‑What do you mean by individual flexibility arrangement?


Well, one of the matters that your professional Association is seeking is a variation of the award which will allow the award provisions concerning breaks to effectively be - - -


JUSTICE ROSS:  Mr Brailey, an individual flexibility agreement's a legal agreement between you as the employer and an individual employee that has to meet certain requirements under the award.  Has to be in writing and it can vary certain provisions of the award.  To your knowledge, have you entered into one of those agreements with any one of your employees?‑‑‑No, no, we have not.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


MR BULL:  Do you intend to do that in the future?‑‑‑We certainly would do it in respect of breaks because breaks are a particular irritation for us.


They're an irritation for you as an employer?‑‑‑Yes.  I mean it's an irritation for the employees as well.  I mean, you know, a lot of them don't want to actually take breaks at all - - -


Let's us - sorry.  You say your operating times during the week are 8 am to 3 pm Sunday to Thursday?‑‑‑That's correct.


Then it's 8 am to 10 am Friday to Saturday?‑‑‑10 pm.


10 pm, I'm sorry about that.  Now in terms of your kitchen staff, can you tell us what the typical roster periods are?‑‑‑Well, normally they start at 7.30 am, half an hour before the restaurant opens and they have a break, you know, some time between 11.30 and 2.30, and then they finish at four, something like that depending on how long it takes to clean up.


Is that all the kitchen staff?‑‑‑Yes.


The wait staff, what are the typical roster periods for them?‑‑‑Well, the wait staff start - I mean one will start at 7.30 am to get the restaurant ready to receive patrons and then there might be, depending on what day of the week it is, there might be a staggered time when the restaurant staff, you know, one might start at 8 o'clock, one might start at 8.30, so then you've got three by 8.30.  Then they finish generally speaking at 4 o'clock.  I mean normally the café closes at 3.30 and they're there for half an hour, just to do the - you know, put the chairs on the tables and all that sort of thing.


JUSTICE ROSS:  What about on those days where you are open from 8 am to 10 pm on the Friday and the Saturday?‑‑‑Yes, well they generally - normally speaking there's a change of staff between the finish at lunch and the start or the commencement of dinner.


Well, could you just - - -?‑‑‑So they might actually have a break of an hour - - -

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


Could you just run us - sorry, could you just run us through for the kitchen staff and then the front of house staff what sort of rosters operate on those Fridays and Saturdays?‑‑‑Okay.  Well, the - as I said, for the other days of the week, from 7.30 am and then when they finish at four or 4.30, they have a break for an hour and then they start again and they finish at 9.30 or whatever it is when the last patron's there.  Now generally speaking the same person actually works the whole of that time in the kitchen.


All right?‑‑‑But in front of house there's actually a different staff come on at - like a staff that's been on all day will finish at 4 o'clock and then a new person will start at 5.30 or 5 o'clock and work through till 10.


So your head chef will be on Fridays and Saturdays working a significant number of hours per day?‑‑‑Yes.  Yes, they call it a double shift.


Right, okay.  Now if you had the ability to do an arrangement where there was no obligation to give them a break - - -?‑‑‑No, mate, we don't want to eliminate breaks.  What we want to do is to have flexibility about when they have their breaks.


Right, and you think five hours is an inappropriate point at which they need to have a break?‑‑‑Well, it's impossible to look at it on that basis because you - like we never know how busy we're going to be until we're actually doing it and therefore, you know, if we're not busy that's an ideal time for the people to have a break, right?  So what we want to do is to actually have the flexibility around that.  So, you know, if we're busy for the first six hours then we want them to be able to have a break after that, you know?  If we're not busy well, you know, then we'd like them to have a break before so that, you know, with the change from breakfast to lunch you have the people available to work when the work's there.  One of the great problems of the restaurant trade is that you just never know when they're going to turn up.  Sometimes they turn up in the most unusual times.  It can be blowing a gale outside or something like that and your restaurant's full, and vice versa.


Do you think that - you don't work in the restaurant do you, sir?‑‑‑No.


All right?‑‑‑Well, you know, I don't work on the floor or in the kitchen, that's right.  I do plenty of work.


Your son works in the restaurant?‑‑‑Yes.


Is he a qualified chef?‑‑‑He is.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


All right, do your staff generally drive to work?‑‑‑It's about - I think that's probably true.  We have a parking problem so sometimes when they drive to work if the car park's full they have to park, you know, up to a half a kilometre away.


But you'd agree there's a point where fatigue will set in if - the periods where you're asking permission not to allow staff to have breaks will coincide with when the restaurant is particularly busy.  You'd agree with that?‑‑‑Correct.  Yes.


So there will be a greater intensity of work when effectively you're asking permission not to allow staff to have a break?‑‑‑That's right.


So they'll be working longer more intense durations.  You'd agree with that?‑‑‑That's right.  That's right, yes.


And all things being equal most people will have greater fatigue?‑‑‑Greater?  Greater than what?


They'll get tireder because they're - - -


JUSTICE ROSS:  Than what?


MR BULL:  Than if it wasn't so busy?‑‑‑I see.  If they have to work six hours straight then they'll be tireder than they would if they had a break at three hours?  Yes, that's correct.


All right, or even five hours?‑‑‑Well, currently you've got to give them a break at five hours.


Correct.  You'd agree that there are issues about when people are fatigued and they haven't had a break that they make more mistakes, drop things at work, all that sort of thing?‑‑‑Well, I suppose they do.  I mean it's not really noticeable unless they're actually working 10 hours or something without a break and we - you know, we wouldn't - you know, we'd make sure that didn't happen.


You'd agree there's also greater risk of people having accidents and so forth if they're driving a long distance home without having had a break after a long shift?‑‑‑Well, I suppose that's possible if - you know, the restaurant business is a tough business and it does tire people, no question about that.

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


In terms of there's a current entitlement to a half hour unpaid break under the award, with these arrangements what were you proposing to provide in compensation for loss of that entitlement in these proposed individual flexibility arrangements?‑‑‑Well, we're not - they're not going to lose the entitlement.  We're just going to have a flexible arrangement about when they take their break, that's all.  I mean there's no change to the fact that they get a break, you know?  It's just a question of when.


But they won't have - well, currently if they work five hours and they don't take a break you then have to pay overtime effectively?‑‑‑Well, what we're trying to do is to free the award up to correspond with the actual working conditions and the demands on the business.


Do you pay overtime regularly because you're so busy that you can't give them a break after five hours, your employees?‑‑‑I don't - I think we actually give them a break at five hours.


All right, and your business has been able to function with that?‑‑‑Well, like anything else I mean if you've got absenteeism on a day, you know, where - and it's busy, I mean sometimes - the whole thing is that this is a moving feast, you know.  You've got sometimes staff, they can't come into work and they give you notice late so you're unable to do anything about it and everybody else has to, you know, put their shoulder to the wheel in those sort of circumstances, but they still get their break.


But the fact that someone doesn't turn up, it's not going to change if you get the ability to do arrangements where people don't have breaks.  You'd agree with that?‑‑‑Well, people are going to have breaks.  It's a question of the flexibility about when to take them, right?  And currently the award doesn't allow for that.


If you had a chef who for whatever reason wanted to go home early do you think it would be appropriate for that chef to work a 12 hour shift without any break then drive home?‑‑‑Well, so the way the restaurant works, if they're going to work a 12 hour shift then they're going to actually have quite a long break in the middle of it because that's the time between service for lunch and dinner.  You know, there's never going to be a position where they're working non‑stop for 12 hours.  It's not going to happen.


Right, so in your café you've got quite defined service periods?‑‑‑Yes, we do.


Right, and it's reasonably predictable?‑‑‑Well, to that extent, yes it is.  I mean if people are sort of still in the restaurant at 4 o'clock then we're trying to move them out.  You know, the - we don't - we stop serving food - we stop taking orders at, you know, up to probably 3 o'clock would be the latest and we're closing at - - -

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


And usually if they're still there at four they're just drinking alcohol, is that generally the case?‑‑‑Well, yes, but I mean we don't actually have a lot of people who do that.  I mean sometimes if people are having a good time or they've got a particular thing to talk about or whatever, they might want to stay later.  But, you know, we encourage them to move on once the, you know, service of food is finished.


All right, so if you have the ability to make individual flexibility agreements where the breaks or the requirement to provide a break was not an obligation on the employer that would reduce your labour costs, wouldn't it?‑‑‑Um - I don't know that it would.  I mean we're not trying to take anything away from the employees that we don't - that we provide them now.  All we're trying to, sir, is to get flexibility about running the operation of the restaurant.  We're trying to free up the thing and we're doing it in concert with our employees.  We're not going to actually try and stand over them and say, "You will do this or you will do that."  We're going to say to them, "Look, it would be really handy if you could take the break now."  All right?  "It would be really handy if you could work through the lunch service and take your break at the end of that.  Do you agree with that?"  And if they say, "No." well, you know that's the end of the discussion.


But it will save you some money if the kitchen staff - - -?‑‑‑It's not going to save us any money.


JUSTICE ROSS:  It's only going to save money if they don't provide the breaks now and they have to pay the overtime.


MR BULL:  Correct.


JUSTICE ROSS:  He's already indicated that's not what he does.


MR BULL:  Because they take the break.


JUSTICE ROSS:  That's right.


MR BULL:  Okay.  No further questions.


MR WARD:  There's no - - -

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL


JUSTICE ROSS:  Mr Bradley, can I just ask you a question?  You mentioned a number of times that you see the provision as providing flexibility and that the employees would get a break?‑‑‑Yes.


You mentioned at one point that - you know - you thought it would be unreasonable if they had to work 12-hour shifts et cetera?‑‑‑Sorry, I'm not catching this.


At one point you mentioned - you said that it wouldn't happen that they would work for 12 hours without a break and - - -?‑‑‑That's correct.


- - - my recollection is that at another time you said that you're looking at maybe they worked for six hours without a break?‑‑‑That's possible.


And what - if this provision was introduced in the normal course - the flexibility you're looking for at the moment you have to provide it within five hours what additional period do you think would be reasonable?‑‑‑Well, if someone - if a front of house staff for instance starts at nine o'clock, all right - where everybody else has started at 7.30 or 8.00 or whatever - then, you know, it would be reasonable for them to work through the lunch service.  You know?  That would take it past six hours but not very far past six hours.  So - you know - if I said six and a half hours I think that would be reasonable.  That would encompass the outer limits of what the flexibility that we'd probably need.


Okay.  All right.  Thank you for that?‑‑‑Okay.


Anything further for the witness?


MR WARD:  No, thank you your Honour.


JUSTICE ROSS:  Thank you for your evidence, Mr Bradley.  You're excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW                                                          [12.31 PM]


JUSTICE ROSS:  So we'll adjourn and be back at two o'clock.

LUNCHEON ADJOURNMENT                                                         [12.31 PM]

RESUMED                                                                                               [2.02 PM]

***        FRANCIS EDMUND BRAILEY                                                                                                        XXN MR BULL




MR BULL:  We're dealing with I suppose a cluster of claims concerning the tool allowance - - -




MR BULL:  - - - which touch upon the Hospitality and the Restaurant Award.  Our claim broadly is that the allowances in both these awards as they cover similar work should be broadly the same.  So I understand in relation to the Australian Hotels Association there's a concession that the indexation factor for the tool allowance in that award perhaps is not the appropriate one, and the appropriate one should be the one which contains tools rather than clothing.


JUSTICE ROSS:  If that's accepted by - I thought that had been agreed by all. Does anyone take a different view on the adjustment fact?


MS THOMSON:  No, your Honour.


JUSTICE ROSS:  No, right.


MR BULL:  That's an easy one.  The second matter as I understand there's also a reasonable concession from the AHA that it's not unreasonable for apprentices to be explicitly covered by the tool allowance in that award.


JUSTICE ROSS:  In the Hospitality Award?


MR BULL:  In the Hospitality Award.


JUSTICE ROSS:  That's the position of the ABI as well, I think.


MS THOMSON:  Yes, your Honour.


JUSTICE ROSS:  So I think the area on contest is the extension if the Restaurant Award to include cooks.  It currently only covers apprentices doesn't it?


MR WARD:  Yes, your Honour.




MR BULL:  So the situation is we say it's discordant with the, I suppose, related award that in the Restaurant Award apprentices get a tool allowance but then when you cease to be an apprentice and be a qualified cook or chef, you don't get an allowance and that it's appropriate that the Restaurant Award provide a similar allowance to qualified cooks.  We're principally putting that to the Commission as a matter which we haven't presented evidence and it's a - it's we say a rational matter in terms of how these allowances in the related award will be and also how these type of tool allowances generally appear to apply across the Modern Award system, where they deal with the disutility of being directed to use your own tools by your employer.


Perhaps a critical matter is that the allowance relates - there is a certain amount of choice, well there is ultimate choice.  It's the employer who directs the employee to use their own tools and not provide tools for them and in those circumstances, we say, that it's appropriate that a chef who is covered by the Restaurants Award should get some amount for being directed to use their own tools.


I might make a general comment about these allowances generally.  There is under both these awards a reimbursement provision where the employer when they're initially purchased is obliged to reimburse the employee for the cost of tools.  I just indicated I rely on our written submission in relation to these matters and I'm going to basically summarise the written submission and deal with any questions that arise out of the written submission.


JUSTICE ROSS:  Look, the main area in contest, leave aside RCI's point about the extension is the quantum and speaking for myself, I'm not sure what the basis is for the $11.20.  Where does that come from?


MR BULL:  Good question.  It was essentially a number picked from comparable awards - - -


JUSTICE ROSS:  Which ones?


MR BULL:  Aged care and health professionals and support services, which appear to be, we say, dealing with chefs and provided some level of comparability.  There is a sense where there is an arbitrariness to whatever number and there's perhaps an element of ambit in the claim that we've made.  It would not be an egregious error were the Commission not to accept what we suggest is the appropriate amount, being $11.25 - - -


JUSTICE ROSS:  Well, that's a comfort to me, Mr Bull.


MR BULL:  I can assure you we're not preparing the prerogative writs in the Federal Court to - - -


JUSTICE ROSS:  No, I follow.  So you've seen there's a tool allowance for chefs in the two other awards you've mentioned.


MR BULL:  Correct.


JUSTICE ROSS:  You're really posing the question? "Well, why shouldn't it be the same?"


MR BULL:  Or similar.




MR BULL:  Thereabouts, and once again I'm not being facetious.  There was a resource issue where, you know, I have not engaged an expert in terms of valuing what tools cost and, you know, in terms of across the Australian capital cities, you know, people who sharpen tools charge and so forth.  I don't think in terms of a cost benefit it wouldn't have really got us anywhere.  There's a table at paragraph 53 of our submission where I summarise some of the allowances in modern awards, and aged care is one where they seem to - you have chefs and cooks covered by that award who work in aged care facilities.  Their allowance is $11.45.  I've had a quick look, there doesn't seem to be a reimbursement.




MR BULL:  So that may account for the higher rate of that allowance.




MR BULL:  But the problem with the allowance in both the Restaurant and the Hospitality Award, you can't completely say it's an amortisation of the initial cost - well, there's reimbursement but there's also the issue that people move around so in relation to the Hospitality Award it's assuming that they've already bought the tools, I assume as an apprentice potentially, and they would have been reimbursed under the provisions of the award; that it will be paid in circumstances where if they've worked for a previous employer, bought tools, been reimbursed, the allowance isn't - it's dealing with owning the tools and maintaining them and the risk of loss.


So I'm not an actuary.  I've got some proficiency with numbers but it was beyond my capacity to sort of produce an algorithm to work out all these imponderables, and it is a matter I say where unfortunately it falls to the Full Bench to make some determination about what sort of figure would be a reasonable figure.


JUSTICE ROSS:  All right.


MR BULL:  And there is - just going through it briefly, aged care seems to be the highest.  There's no reimbursement so we can say that that's level because they're not initially reimbursed.  We don't know the history of how people get to work in aged care facilities, whether it's an end care job for chefs and cooks and they've worked elsewhere and bought their tools.  That's a submission I can't make.  Building and construction, the General Onsite Award, seems to have the most generous allowances.  Those allowances contain reimbursement and are significant, so they're getting paid a weekly rate, they're also getting reimbursed.


JUSTICE ROSS:  But they've got different sets of tools.


MR BULL:  They're different sets of tools.


JUSTICE ROSS:  So that's not a comparable.


MR BULL:  And also different industrial context which may contribute to the more robust allowances.  The Funeral Industry Award is the lowest, once again different tools.  I can make a supposition that not as many coffins may be handmade as used to be, but I don't know.  Gardening and landscape, different tools.  Hair and beauty is different tools but they get reimbursed.  Health professionals is also quite high but they don't seem to be reimbursed.  Higher education simply has reimbursement but no ongoing allowance.  Local government has a higher allowance, once again it's for the tool CPI but no reimbursement.


Plumbing has on the face of it quite a high allowance.  There's no initial reimbursement but then there's reimbursement for loss during employment up to $1,300.  On one level the Commission's given some answer in relation to the Hospitality Award in that it's said at paragraph 35 of the background paper had the initial amount been indexed to what we - which seems to be acknowledged as the correct CPI factor, it would have been $7.93 an hour.  We would say that what would be appropriate at the least is that the allowances across both awards are the same and it would be appropriate to at least make them comparable with the Restaurants Award which provides currently $8.49 an hour and a related weekly amount.


So we leave it in your hands.  We suggest that it wouldn't be inappropriate to increase the allowance by some increment but it should be done in a uniform manner, and in the event that you're minded to leave it as it is so to speak, the allowances should basically reflect the higher rate of the Restaurants Award which would mean the Hospitality Award would go up to $8.49 and the comparable weekly amount.  I think in a logical sense it's hard to point to whether, you know, it should be $9 or $10.  We say it should be higher.  We've put in an amount which has a certain amount of ambit in it.


JUSTICE ROSS:  All right.


MR BULL:  Make them both $9 and we'd be more than happy with that.  But I think there's some sense in that the two awards cover very, very similar work and that the coverage of the allowances and the amounts paid and the CPI paid should be the same.


JUSTICE ROSS:  All right.


MR BULL:  And I've elaborated on these matters in my submission.




MR BULL:  That's all I wish to say.


JUSTICE ROSS:  All right.  Thanks.


Mr Ward, what do you wish to say in support of your two claims?


MR WARD:  Thank you, your Honour.  I'd seek to rely on the written submissions and I'm in the Commission's hands if they require assistance.


JUSTICE ROSS:  All right, then let's just go - if I take you to the background document.  Do you have that in front of you?


MR WARD:  Yes.


JUSTICE ROSS:  All right, just start at paragraph 102 and you'll see that you set out some of the history, and then when you go to 106 and attachment C did you take any issue with the content of attachment C?


MR WARD:  No, your Honour.


JUSTICE ROSS:  No.  There are some questions for you at the bottom of that page.  Let's start with the second one and let me test my understanding of the evidence that we've heard from the two witnesses.  That at least in South Australia and New South Wales if a junior - that is someone who is 18 or 19, that's what I mean by junior in this context - delivers an alcoholic beverage to a customer at a table then they're required to have a Responsible Service of Alcohol certification, and if they serve an intoxicated customer then they're liable to a penalty under the legislation?


MR WARD:  Yes, that's correct.


JUSTICE ROSS:  And I think under each of them you have to be 18 years of age before you can serve alcohol to a customer.


MR WARD:  Correct.


JUSTICE ROSS:  Okay.  If I go to the first question -and that answers the second question - one of your submissions is that the amendment you're seeking is as you put it in line with the modern awards objective.  I wonder if you could just elaborate on that?


MR WARD:  Referring to the provision of the need to promote social inclusion through increased workforce participation, specifically in the evidence it was addressed that the issue of providing liquid incentive to hire junior employees.  This goes to a much larger issue that we're facing in the industry of a skills shortage and new, fresh, young employees aren't being trained to replace the ones that are moving on.  So providing that incentive, however small it may be, for an employee - or rather removing a disincentive for employers to hire young people and invest in the training.


JUSTICE ROSS:  Right, okay, and a similar question is put to you on page 48.  This is about the breaks proposition, and on what basis do you say that what you're seeking is in line with the Modern Award objective?


MR WARD:  The need to promote flexible work practises.




MR WARD:  And efficient and productive performance of work.  The hospitality is one as you heard in the evidence that there's not a lot of predictability available to the employers and operators.  It's also one of very diverse needs from the employee's side as well so that we submit that it's within both parties' interests to have that flexibility or to at least allow the employee to be able to engage in flexible discussions with the employer to come to an agreement on that point.


JUSTICE ROSS:  All right.  Thank you.  And you rely on your written submissions which we've set out in the background paper?


MR WARD:  Yes.


JUSTICE ROSS:  Thank you.  Was there anything further?


MR WARD:  I don't believe so, no.


JUSTICE ROSS:  All right.  ABI want to say anything about this - the restaurant matter or not?


MS THOMSON:  Not the restaurant matter.  No, thank you, your Honour.


JUSTICE ROSS:  No.  Okay.  The Associations?


MR RYAN:  Not for the restaurant matter, your Honour.


JUSTICE ROSS:  Thank you.  Anything in reply?  Or are you content to rely on your written submissions.


MR BULL:  My colleague is just going to address you.


JUSTICE ROSS:  All right.  Ms Dabarera?


MS DABARERA:  We do have some comments in reply, your Honour.  We do rely upon our submission in reply dated 2 November and in addition to that we say that there's no demonstrated need to vary the award to allow breaks to become the subject of individual flexibility agreements and there are reasons why breaks should not become the subject of IFA's.  First and foremost is that breaks play an important role in reducing fatigue and allowing employees to rest, recover and eat and that was acknowledged by both witnesses today.


Restaurants to be busy at specific times - breakfast, lunch and dinner - with quieter periods in between and these busy periods can be quite intense.  The witnesses today gave evidence - so Bunder gave evidence that there are both split shifts and straight shifts and the split shifts are organised to accommodate the lunch and dinner periods and Brailey agreed that there was some predictability in the organisation of working at restaurant, although there may be some unexpected busy periods as well.


Our submission is is that the award as it currently is provides employees with appropriate breaks.  If these breaks were altered it is not unforeseeable that there could be an increase in accidents which are risky especially during busy periods when employees in the kitchen will be working with sharp tools at a fast pace and food and beverage attendants will be carrying glass and potentially hot food and beverages.


Providing appropriate breaks as the award currently does reduces the risk of such accidents and allowing meal breaks to become the subject of IFA's with the possibility of say, an employer and an employee agreeing that the employee will not take a break on an eight-hour shift and leave work 30 minutes early will increase workplace risks related to employee fatigue.


In relation to that the witnesses today - Bunder stated that they may not be seeking to have the employees work more than seven or so hours.  And Brailey says that the outer limit for their restaurant is 6.5 hours without a break.  Regardless the actual effect of an IFA is that there would not be a limit under the award - it would be simply up to an agreement between the individual employer and the employee.


The second reason as to why the variation sought by RCI is not necessary is that there is already a level of flexibility within the clause itself.  If there are exceptionally busier time periods under clause 32.3 and 32.4 the employer can require an employee to work through the break and instead pay the employee 150 per cent of their ordinary rate of pay from the time of the missed meal break until they get the break or the shift ends.


So there is a penalty - an additional cost for the employer in doing this and the evidence today, Bunder said it was unsustainable to pay the overtime and Brailey stated that they organised their restaurant to give the breaks rather than pay the penalty.  However, it's not particularly unusual for employers to want to avoid paying additional penalties and we say it's not particularly relevant.


The additional penalty in the current award is entirely appropriate because it means that employers are encouraged to provide the break and it means that they will generally only require the employee to work through the break in exceptional and unusual circumstances.


The current clause 32 is structured so that employees will have appropriate breaks and in circumstances, where necessary, the current clause already allows the employer to require the employee to work through the break with an additional payment.  IFA's would not facilitate this.  IFA's are not structured to provide a once-off change to allow the employee and employer to deal with an unusual busy period unlike the current clause 32.  IFA'S must be in writing and may only be terminated by agreement or with 13 weeks' written notice.  They are suited to more long-term arrangements and in that itself increases the possibility that agreements will be made that increase workplace risks due to fatigue.


Also, as we've stated in our submission IFA's are not subject to monitoring.  There is no real mechanism to ensure that employees will actually be better off and there are already high levels of non-compliance in this industry.  Amending the award to allow breaks to become the subject of IFA's will simply open up further opportunities for non-compliance.


We note that one witness, Bunder, referred to IFA's as being signed off by the Fair Work Commission.  This does not occur.  There is no requirement for this to occur under the award.  We say that RCI's claim should be rejected.


In relation to junior employees we agree with the statement of the Commission dated 21 November 2018 which went through the age that an employee must be in each State and Territory to serve alcohol as well as the fact that they would need a relevant certificate.


We also note that paragraph 36 to 39 of our submission dated 2 November 2018 was agreed to by RCI.  That is that in addition to the matters covered in the statement what was agreed was that there are significant penalties for breaching Responsible Service of Alcohol requirements and that, for example, in New South Wales an employee can face a fine of up to $11,000 for supplying alcohol to an intoxicated person.


We say that there's no difference in either the qualifications required or the penalties faced by junior employees and adult employees when it comes to the service of alcohol.  It was acknowledged by both witnesses today that for each staff delivering alcohol would need an RSA in their respective Stats.


We say that all employees involved in the service of alcohol take on significant responsibilities.  RCI's claim is that there is a distinction between employees who deliver alcohol to a table and those who dispense alcohol at the bar.  This is an artificial distinction.  An employee who delivers liquor to the table of customers is still involved in the supply and service of alcohol.  There is no difference in their legal obligations and that of the employee who dispenses alcohol at the bar.


The employee who delivers liquor to a table must have an RSA or relevant qualification and ensure that they're complying with their obligations under State liquor laws.


In respect of the Modern Awards' objective we say a consideration must be section 134(1)(a) the needs of the low paid.  Just in terms of the wage rates if we're looking at a food and beverage attendant Grade 2 , which is level 2 under the Restaurants' Award, if an employee was 18 years of age the junior rate per hour is 70 per cent of the adult rate and it's currently $14.15.  The adult rate currently is $20.22.  So the difference in wages that they would be experiencing is they would get $6.07 less per hour.


If they were 19 years old the current junior rate is $17.19 per hour and they would be getting $3.03 less per hour.  So there is a significance in terms of the impact on the employees.  And we also say that the effect of RCI's claim would be to reduce labour costs and increase profits.  One witness, Bunder, admitted this would be the principal advantage in the reduction of rates.  And the other witness, Brailey, whilst stating it was not the total story admitted that it would assist in potentially reducing labour costs.


The current award clause 15.1 meets the Modern Awards objective.  It is fair and relevant in that it provides for those junior employees who have the RSA and who are required to serve, supply or deliver alcohol thereby taking on additional responsibility that they are appropriately paid the adult rate.  Your Honour, that's our submissions unless you have further questions.


JUSTICE ROSS:  Thanks, Ms Dabarera.  Anything in reply, Mr Ward?


MR WARD:  Only if I may and I'll stay on a short leash with this.  Just to speak to the underpinning of our submissions they go to addressing as Mr Brailey stated that the hospitality industry is a moving beast and any attempt to apply rigid and inflexible rules will only stifle the industry.  I mean cherry picking unique situations can support arguments of both side but for the industry to function from a higher level and address issues like training and inclusion of young people and are giving flexibility for people to make their working arrangements suit their personal lives and things like this we need to have an open mind and consider the larger situations.


JUSTICE ROSS:  Thank you.  So nothing further in relation to the restaurant matters?  No.  Then as I indicated earlier, there are some issues around the hospitality matter that we wanted to raise with you and we'll give you this document.  It's probably particular for your benefit, Mr Ryan really.  But let me just go through some of the claims and go to some of the questions that arise in them and some provisional views.


In relation to the payment of wages claim, both of the submissions refer to the provisional view of the Payment of Wages Full Bench.  Well, given that that hasn't been finalised and there's no model term, on the face of it this claim can still be determined in the award stage of the review but not now.  So the provisional view is that that should be deferred until the finalisation of the payment of wages common term.  I expect that will occur in the first quarter of next year.


The second issue, the public holidays matter.  The point that we want to draw the Association's attention to here, we understand what United Voice says about the 28 days being sufficient, but the Association's proposal would have no outer limit on when that accrued time off could be taken and there's a question of consistency with the arrangements for the taking of time off in lieu of overtime.  That's a point we'd make to United Voice as well.


They're both accrued time off in lieu of a penalty rate.  One is for working on a public holiday and the other's working overtime.  It gives rise to the question about why you should have different provisions applying to potentially the same issue.  So in other words, why not have a longer period within which the accrued time off for public holidays is to be taken.


As with the minimum hours provisions, this is something that it - certainly speaking for myself - I had a bit of trouble following the submissions on this point and what it was seeking to achieve, what was the problem it was trying to solve and what were the arguments in favour and against. They're both pretty short on both sides of the ledger on this point and it's really drawing that to your attention.


In relation to the averaging options, this is item 21 from paragraph 7 down. The first one is 76 hours over a two week period.  The question that's put is currently the options have four weeks and it also specifies a minimum number of days off.  Well, if you are going to have 76 hours over two weeks, then why wouldn't you also have the prescription that there's a minimum of four days off in each two week period for consistency with the four weeks?  I understand what United Voice say about it's not necessary but if you were to have it, why wouldn't you also have the two weeks off?


The averaging over the 26 hours, I think your claim's problematic.  It on its face would provide a more substantive change.  It's unsupported by any evidence.  It would seem to permit and it may not but it would seem to permit hours to be averaged over a peak holiday period of six months, effectively permitting the deferral of any overtime payments until the end of the 26 week period.


MR RYAN:  Your Honour, if I may - - -




MR RYAN:  - - - just to short circuit this, correspondence is likely to filed with the Commission today withdrawing that one.


JUSTICE ROSS:  That's fine.  Look, really we're just pointing out that you can revisit the issue but it might be better to revisit in the context of the annualised salary matter, and that might be a more appropriate place for the point to be argued, and I've just drawn your attention to - there are four model clauses that that Bench has developed that you might want to have a look at, and one of them may be appropriate and cover the sort of circumstance you're trying to deal with here, okay?


MR RYAN:  May it please.


JUSTICE ROSS:  Item 34, look the short point here is that as United Voice points out, Clubs Australia made a similar application in the Clubs Award.  The question of whether the Clubs Award is subsumed within hospitality is a live issue.  If it's not subsumed within the Hospitality Award then the Public Holidays Full Bench is going to determine the Clubs application, and I'm anxious not to have two Full Benches dealing with the same issue.  So to try and avoid that, then we'll wait and see what happens with the Clubs Award.  If it's subsumed into this award your claim will still be live and it will be then referred and determined by the Public Holidays Full Bench, okay?


MR RYAN:  That's an appropriate course.


JUSTICE ROSS:  Deductions for meals.  There are two points raised here.  The first is it does seem odd that the meal allowance clause when the employer's obliged to pay an employee a meal allowance is adjusted by the Takeaway and Fast Foods component of the CPI, yet the deduction clause is adjusted by movements in the annual wage review.  As you see from that table that means that the deduction amounts increased at a faster rate than the meal allowance amount.  On its face, given both of them are about the cost of providing or purchasing a meal, why would you have a different adjustment mechanism?  Now that wasn't something that's agitated but because the issue's now raised, we want you to have a look at it.


Also prima facie it seems that the reference to per week is a drafting error and the deduction should be per meal.  But as United Voice points out, that's not the end of the issue.  There's still a question of whether a deduction of $8.37 per meal is reasonable but more particularly, and something that the submissions don't address, is whether it's permitted within sections 324 and 326 as a deduction.  For example, how can you make any deduction for an employee under 18 without the written consent of their parent or guardian in accordance with the Act.  We've heard evidence today from Mr Bunder who when asked, well how much do you deduct for a meal, he said well, the cost of the meal, about $5.  So it sorts of raises a question about if you go to per meal then you're not dealing with the cost what the employer would sell the meal for, or what an employee would have to purchase the meal, but rather it's more about the cost of producing it, marginal cost of producing the meal.


The provision also raises questions like - it almost seems like you could read it but if the employer provides a meal whether the employee wants it or not the amount can be deducted, which just seems a bit - and it doesn't seem that the employee's ever told that if we provide you a meal then we're going to deduct that amount.  So there are those features of it that I think on the face of it I think you properly raise the question of per week, on the history it just doesn't seem to make a lot of sense.


I know there's a degree of inconsistency with the other provisions but the other provisions are a dog's breakfast in any event, so I'm not sure how much comfort I drive from that.  I think if there is to a provision around deduction it should be properly structured and appropriately set and that's something that I think there could be useful discussions between the parties about.  If not then you're on notice about the sort of issues we want you to talk about.  You'll have to talk about how it fits with the broader scheme of the Act and deductions and you'll have to talk about the quantum question, whether that's appropriate and if so what's it based on. Also talk about the adjustment of it, because on its face it seems that anything to do with meals, whether it's the payment of an allowance or the deduction of an amount, they're referable to the costs of producing a meal and purchasing one.  So it would seem to follow that they should have the same adjustment factor.


In terms of classifications the short question here really is, to United Voice, you say in your submission that there was evidence adduced in the restaurant proceedings.  I'd be assisted if you could take us at some point to where that evidence was.  I might also say, Mr Ryan, while I've got you, in your submission when you deal with the history of the meal allowance provision and you talk about the 2004 proceedings, which I think were before Lawson C, I've tracked down the order but you refer to a print number in the footnote but it's incomplete.  So I just don't have a copy of the print so if you wouldn't mind bringing that tomorrow that would be of assistance.


MR RYAN:  Yes.


JUSTICE ROSS:  I suspect the print isn't going to help me because it looks like it was a consent matter so it's likely to be - - -


MR RYAN:  It was a consent between United Voice and the AHA.


JUSTICE ROSS:  Yes.  Yes, so it's not likely to say much but for the record it would be good to just close off and have a look at it.  In relation to the clerical classifications, look I think - - -


MR RYAN:  Your Honour, if I can short-circuit that one?


JUSTICE ROSS:  Yes, sure.


MR RYAN:  That will be withdrawn.




MR RYAN:  And might I just for the record now say multi‑hireable as well.


JUSTICE ROSS:  Okay.  So just to be clear, multi-hire and the - - -


MR RYAN:  The hours of work averaging provision over 26 weeks.


JUSTICE ROSS:  Yes.  Thanks for that indication, Mr Ryan.


Any questions or anything you want to - is it fairly clear?  Look, I mean, like all these things it's a balance.  Do you raise it with them or do you just rather - do you see it in the decision, and I thought it would be in your interests to hear some preliminary views at this stage so that you can address the questions tomorrow.  In relation to some of the matters I'd encourage you to have discussions about and there may be a pathway you can agree on, otherwise we'll hear and determine the matter; and really as you said, Mr Bull, the question of the deduction on meal allowances, it's likely to be more art than science and not unlike some of the tool allowance provisions, and I think when you're in that space it's better to provide the parties with an opportunity to have a discussion and see if you can reach some reasonable basis, based on perhaps your experience in practice about what actually happens and what is actually deducted and how does it work.


But whatever outcome you come on that(sic) we'll need to frame a provision that is consistent with the Act, and it's likely that we would do that in a provisional way and provide you with a further opportunity to comment on it if that's the path we go down.  So if ultimately we conclude, yes it was a drafting error, yes it should be per day, yes the amount should be whatever the amount should be and this is the adjustment factor, then it's likely the clause would deal with more than just that.  It would need to be placed in the context of the statutory provisions that restrict the capacity for deductions to be made.  Okay?  All right, thanks.


MR BULL:  Your Honour, are we commencing tomorrow at 9.30, or?




MR BULL:  No, I'm just checking, sorry.




MR BULL:  I was away all last week, so.


JUSTICE ROSS:  Yes, unless - - -


MR BULL:  Well, we can talk to Mr Ryan a bit now, so.


JUSTICE ROSS:  It's really whether you think - I don't think it will take that long given what has been withdrawn and what we've got left with.  So we'd be content to move it to 10.30.


MR BULL:  Mr Ryan - - -


JUSTICE ROSS:  And to provide you with some opportunity to have some discussion if that assists?


MR BULL:  He just indicated to me he has got to leave for a personal matter to pick up a child.


JUSTICE ROSS:  Sure, sure.


MR BULL:  So we can't talk to him.  When we do get on and we do actually have constructive - - -


JUSTICE ROSS:  Well, why don't we do it at 10.30?  But look, also take - well, show up then but if, you know, you're close on an issue and it's likely to be more productive we'll be flexible about the start time.  But we'll adjourn it today till 10.30 tomorrow.


MR BULL:  Thank you.


JUSTICE ROSS:  And if you need more time, come in, just keep RCI and ABI informed so that they're not unduly inconvenienced.  All right, thanks, see you at 10.30 tomorrow.

ADJOURNED UNTIL TUESDAY, 27 NOVEMBER 2018               [2.43 PM]



KRIS RAYMOND BUNDER, SWORN............................................................... PN20

EXAMINATION-IN-CHIEF BY MR WARD..................................................... PN20

EXHIBIT #RCI1 WITNESS STATEMENT OF KRIS RAYMOND BUNDER DATED 24/07/2018................................................................................................................. PN34

CROSS-EXAMINATION BY MR BULL............................................................ PN45

KRIS RAYMOND BUNDER, RECALLED..................................................... PN123

CROSS-EXAMINATION BY MR BULL, CONTINUING............................. PN123

RE-EXAMINATION BY MR WARD................................................................ PN290

THE WITNESS WITHDREW............................................................................ PN328

FRANCIS EDMUND BRAILEY, AFFIRMED................................................ PN334

EXAMINATION-IN-CHIEF BY MR WARD................................................... PN334

THE WITNESS WITHDREW............................................................................ PN341

FRANCIS EDMUND BRAILEY, RECALLED............................................... PN341


EXHIBIT #RCI2 WITNESS STATEMENT OF FRANCIS EDMUND BRAILEY DATED 24/07/2018............................................................................................................... PN355

CROSS-EXAMINATION BY MR BULL.......................................................... PN356

THE WITNESS WITHDREW............................................................................ PN493