PN915

VICE PRESIDENT CATANZARITI: Thank you. Yes, Mr Ferguson?

PN916

MR FERGUSON: Vice President, before we get to the first witness I thought I might just tender the statement of Patrick Sullivan.

PN917

VICE PRESIDENT CATANZARITI: Yes.

PN918

MR FERGUSON: It includes annexures A to H.

PN919

VICE PRESIDENT CATANZARITI: That will be exhibit 4.

EXHIBIT #4 STATEMENT WITH ATTACHMENTS A TO H OF PATRICK SULLIVAN

PN920

MR FERGUSON: Thank you. I now call Elke Richter.

PN921

THE ASSOCIATE: If you just stand up and face the Full Bench. Could you please state your full name and address for the record.

PN922

MS RICHTER: My name is Elke Richter, (address supplied).

<ELKE RICHTER, AFFIRMED [10.04 AM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [10.04 AM]

PN923

MR FERGUSON: Good morning, Ms Richter?‑‑‑Good morning.

PN924

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

PN925

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

PN926

Is it some 40 paragraphs in length?‑‑‑Yes.

PN927

Did you sign that statement on 13 March 2018?‑‑‑Yes, I did.

*** ELKE RICHTER XN MR FERGUSON

PN928

Is it true and correct to the best of your knowledge as at that date?‑‑‑As at that date, yes.

PN929

I tender that statement.

PN930

VICE PRESIDENT CATANZARITI: Exhibit 5.

EXHIBIT #5 STATEMENT OF ELKE RICHTER DATED 13/03/2018

PN931

MR FERGUSON: I just have a small number of questions related to updating and clarifying the statement.

PN932

VICE PRESIDENT CATANZARITI: Yes, go ahead.

PN933

MR FERGUSON: Ms Richter, can I take you to paragraph 1? You there refer to a salon Forever Beautiful. Is Forever Beautiful still owned by your family's business?‑‑‑No, so we sold that business in May of 2018 and we no longer have any concerns with running of that business anymore.

PN934

So you're not involved?‑‑‑No.

PN935

The other salon there, Advanced Beauty Concepts and Medi Spa, has the name of that salon changed?‑‑‑Yes. It's now Mosman Spa & Dermal Clinic.

PN936

Could you repeat that again?‑‑‑Mosman Spa & Dermal Clinic.

PN937

Could I just ask you to turn to paragraph 5? You see there you say that Forever Beautiful employs five casual therapists and two casual receptionists. Where you use the word 'employs', do you mean that those therapists and receptionists work at the Forever Beautiful salon?‑‑‑Correct.

PN938

Who is their employer?‑‑‑So Jasspen Pty Ltd is our family company and we employ ‑ ‑ ‑

PN939

Sorry, just repeat the name of that company again?‑‑‑Jasspen Pty Ltd.

PN940

Thank you. Is that your family's business?‑‑‑Correct.

*** ELKE RICHTER XN MR FERGUSON

PN941

Did that business own the salons?‑‑‑Yes.

PN942

I just ask you to go down to paragraph 8. You there talk about employees at the Advanced Beauty salon. Were they employed by Jasspen?‑‑‑Yes.

PN943

You there talk about a casual receptionist. Did that casual receptionist sometimes work at Forever Beautiful also?‑‑‑Yes.

PN944

Was she included in your reference to two receptionists at paragraph 5?‑‑‑Correct.

PN945

I take you to paragraph 10. You there say Skin Inspired also runs a small beauty salon. Does Skin Inspired still run a beauty salon?‑‑‑No, no longer.

PN946

Can I just take you to paragraph 12? You there refer to a casual therapist employed by Advanced Beauty. Was that therapist actually employed by Jasspen also?‑‑‑Yes.

PN947

I just take you to paragraph 28. You there refer to an impending relocation of the Advanced Beauty salon. Has that relocation occurred?‑‑‑It has. It occurred in May of 2019.

PN948

Thank you. Those are the questions. The witness is available for cross‑examination.

PN949

VICE PRESIDENT CATANZARITI: Thank you. Mr Bakri?

CROSS-EXAMINATION BY MR BAKRI [10.09 AM]

PN950

MR BAKRI: Thank you, your Honour. Ms Richter, if I could first ask you to clarify one of the answers you gave to Mr Ferguson. The Skin Inspired small beauty salon, did you say that that's no longer operating?‑‑‑Yes, that's correct.

PN951

So the current situation is that there is only the clinic - the salon, I should say, at the Mosman Shopping Centre?‑‑‑Correct.

PN952

Which is called the Mosman Spa & Dermal Clinic?‑‑‑That's right.

*** ELKE RICHTER XXN MR BAKRI

PN953

That operates as part of your business?‑‑‑Yes.

PN954

Thank you. Could I ask you to clarify the number of therapists that are employed at the Mosman salon?‑‑‑As at now?

PN955

As at now?‑‑‑Yes. So we have five therapists hands‑on and we have two receptionists.

PN956

Are all of these employees employed on a casual basis?‑‑‑Two are full‑time and - sorry, one is full‑time, one is permanent part‑time.

PN957

And are they therapists or ‑ ‑ ‑?‑‑‑They are therapists, yes.

PN958

Am I correct in understanding that your business has classified the receptionists at level 1 under the Hair and Beauty Industry Award?‑‑‑Level 6 is the diploma trained. Is that correct?

PN959

That's right?‑‑‑So all girls are at diploma level.

PN960

That includes the receptionists, does it?‑‑‑Receptionist is also level 6, but she is working on a receptionist - she is employed as a receptionist only.

PN961

Yes, but she's getting paid at the level 6 rate or the level 1 rate?‑‑‑She is paid - no, she's paid at the reception - sorry, she's actually paid on a different rate. So we pay her higher than the reception rate but she does not do any hands‑on.

PN962

Okay?‑‑‑So she doesn't do any therapy treatments.

PN963

But the rate that you pay her is lower than the level 6 diploma rate?‑‑‑Correct, yes.

PN964

So am I correct in understanding that each of the employees at the salon hold a diploma in beauty therapy or equivalent?‑‑‑Yes. Yes, all bar one of the - the receptionist. So we have someone that does a little bit of casual reception as well.

PN965

The second receptionist?‑‑‑Yes.

PN966

Does that person hold any qualifications?‑‑‑No.

*** ELKE RICHTER XXN MR BAKRI

PN967

But everyone else has their diploma?‑‑‑Yes.

PN968

And your understanding is that that diploma takes how many years to attain?‑‑‑One full year.

PN969

One full year. Thank you. You understand that level 6 is the highest classification under the award?‑‑‑Correct.

PN970

So you would agree that your staff at the salon, the therapists are all highly qualified?‑‑‑Yes.

PN971

In your statement you set out the opening hours of the three salons. We now understand that there's only one that's operating as part of your business. Is it still the situation that the Mosman salon is closed on Sundays and public holidays?‑‑‑Correct.

PN972

And the balance of the opening hours have remained the same, have they?‑‑‑Relatively similar to that, yes.

PN973

Can you explain the changes to those hours?‑‑‑To the hours?

PN974

Yes?‑‑‑Yes, sure.

PN975

If we can start with Monday, at paragraph 7 of your statement on page 2 ‑ ‑ ‑?‑‑‑Yes.

PN976

‑ ‑ ‑ you've got 9 to 5.30. What is it now?‑‑‑So 9 till 6 Monday and Tuesday. Wednesday is 9 till 7, Thursday is 9 till 8, Friday is 9 till 6 and Saturday is 8.30 till 4 o'clock.

PN977

Sometimes do you close earlier than those times if there's insufficient demand?‑‑‑On the odd occasion, but very - the majority of the time we are open the full hours.

PN978

I'm assuming that you're renting the property in the shopping centre?‑‑‑Yes, we are.

*** ELKE RICHTER XXN MR BAKRI

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 979-980

PN981

You would agree with me that in the Mosman Park Shopping Centre only a handful of shops are open on Sundays?‑‑‑That's correct.

PN982

I understand that to be Bakers Delight, Coles ‑ ‑ ‑?‑‑‑So - yes.

PN983

‑ ‑ ‑ and a pharmacy?‑‑‑So the centre has had some massive renovations being done, so Bakers Delight is currently closed in that centre at the moment, but they will be reopening again, and currently there are quite a few shops in that centre that are vacant, but there are a lot moving in at the moment. So obviously with the refurbishments more businesses will be coming back in and a few of those will be open on a Sunday. There's a café and ‑ ‑ ‑

PN984

Yes, but at present ‑ ‑ ‑?‑‑‑At present ‑ ‑ ‑

PN985

‑ ‑ ‑ we're talking about Coles ‑ ‑ ‑?‑‑‑Yes, Coles.

PN986

‑ ‑ ‑ and a pharmacy that are open on Sunday?‑‑‑And the pharmacy are both open Sunday.

PN987

So it's fairly quiet on a Sunday ‑ ‑ ‑?‑‑‑Yes.

PN988

‑ ‑ ‑ in that shopping centre, isn't it?‑‑‑There's quite a flow of traffic through, but - yes.

PN989

I'd now like to ask you about the hourly rates that you're currently paying the level 6 beauty therapists. Can you tell me what the normal ordinary hourly rate is?‑‑‑For?

*** ELKE RICHTER XXN MR BAKRI

PN990

For a level 5 beauty therapist?‑‑‑A level 6. So on a Monday - sorry, during the week?

PN991

Yes?‑‑‑To be honest, I don't actually have the rates in front of me, so I don't know 100 per cent, but I know the rates during the week are obviously slightly less than a Saturday, and then the Sunday obviously are even higher.

PN992

VICE PRESIDENT CATANZARITI: Mr Bakri?

PN993

MR BAKRI: Yes?

PN994

VICE PRESIDENT CATANZARITI: The difficulty with where you're going - and I'm not even sure what is the relevance to this matter in front of us, is that the witness hasn't been warned that you're potentially getting admissions from her for some other purpose. So that's not appropriate in these circumstances without a proper warning. If you're suggesting that she's underpaying ‑ ‑ ‑

PN995

MR BAKRI: Well, she can be warned. She can be warned. It's not my role, your Honour, with respect, to warn her.

PN996

VICE PRESIDENT CATANZARITI: But the questioning itself, I don't find the relevance to the matter in hand, which is reduction in penalty rates. So there's an argument about that as well, so I question whether ‑ ‑ ‑

*** ELKE RICHTER XXN MR BAKRI

PN997

MR BAKRI: I can address the question of relevance, your Honour, if that would assist.

PN998

VICE PRESIDENT CATANZARITI: Do that first and then we'll rule on that.

PN999

MR BAKRI: Yes.

PN1000

MR FERGUSON: What I might also say, I'm not sure that counsel's understanding of the rates is accurate. It might be that we should have a discussion about that as well, but perhaps the relevant point ‑ ‑ ‑

PN1001

VICE PRESIDENT CATANZARITI: If he's putting a false proposition that's even worse. We'll take a short adjournment.

<THE WITNESS WITHDREW [10.18 AM]

SHORT ADJOURNMENT [10.18 AM]

RESUMED [10.24 AM]

PN1002

VICE PRESIDENT CATANZARITI: We'll just ask the witness to step outside, because we have some questions of you as to how you calculated the questions, Mr Bakri.

PN1003

MR BAKRI: Yes, your Honour. Your Honour, I can indicate that ‑ ‑ ‑

PN1004

VICE PRESIDENT CATANZARITI: Just a second while the witness goes outside.

PN1005

MR BAKRI: Your Honour, if I could indicate, I intend to withdraw the question about the hourly rates and to indicate that there was a typographical error in the notes I was reading from. So I do apologise.

PN1006

VICE PRESIDENT CATANZARITI: Yes. We recalculated the rates and formed a different view. These are very important matters ‑ ‑ ‑

PN1007

MR BAKRI: A different view, your Honour?

*** ELKE RICHTER XXN MR BAKRI

PN1008

VICE PRESIDENT CATANZARITI: A different - the figures you gave seem to be incorrect.

PN1009

MR BAKRI: Incorrect, yes. That's what I'm saying, your Honour.

PN1010

VICE PRESIDENT CATANZARITI: In a matter that is this serious, counsel should be absolutely crystal clear of getting these things accurate.

PN1011

MR BAKRI: Yes, your Honour, and I apologise for ‑ ‑ ‑

PN1012

VICE PRESIDENT CATANZARITI: So you are warned that I will not tolerate in this courtroom misleading questions of that nature which have serious implications to a witness.

PN1013

MR BAKRI: Yes, your Honour.

PN1014

VICE PRESIDENT CATANZARITI: If it happens again I'll refer the matter to the Bar Association. Senior counsel should be alive to that issue.

PN1015

MR BAKRI: Yes, your Honour.

PN1016

VICE PRESIDENT CATANZARITI: These are very serious things that occur in these courtrooms and I will not tolerate them.

PN1017

MR BAKRI: Yes, your Honour. I apologise to the Commission and to the witness. It was a typographical error and there was no intent to mislead there.

PN1018

VICE PRESIDENT CATANZARITI: Yes. As you can see, the Commission went outside and had a look at the figures itself. Thank you. Bring the witness back.

<ELKE RICHTER, RECALLED [10.26 AM]

CROSS-EXAMINATION BY MR BAKRI, CONTINUING [10.26 AM]

PN1019

VICE PRESIDENT CATANZARITI: Thank you. Those questions have been withdrawn and your answer will be struck from the record. Yes, Mr Bakri?

*** ELKE RICHTER XXN MR BAKRI

PN1020

MR BAKRI: Thank you, your Honour. Ms Richter, you would agree that the success of the salons is largely dependent on the salons providing a good service to the customers that walk through the door?‑‑‑100 per cent.

PN1021

100 per cent. Therefore the success of the salon depends on the quality of the service that your therapists provide?‑‑‑Yes, absolutely.

PN1022

So for the salon to succeed you need to recruit and retain highly qualified and skilled staff?‑‑‑That is correct.

PN1023

You would agree that recruiting and retaining highly skilled staff is a challenge that the business must continually deal with?‑‑‑Always, yes.

PN1024

And that sometimes recruiting and retaining highly skilled staff is challenging?‑‑‑It is challenging.

PN1025

At paragraph 26 of your statement you say that some employees are paid above the award as this necessary to attract some employees?‑‑‑That's correct.

PN1026

So it's your view, I take it, that the wages that you offer to pay to therapists impacts on whether you can recruit and retain suitable staff?‑‑‑Yes.

PN1027

You would accept that working late hours and weekend hours is unattractive to some beauty therapists?‑‑‑It can be, yes.

PN1028

And asking a potential job candidate to work late nights or weekends can make it harder to recruit them?‑‑‑In some cases, yes.

PN1029

Yes?‑‑‑However, in some cases we have a number of girls who are mums who actually quite enjoy working weekends and late nights.

PN1030

Yes, and those ‑ ‑ ‑?‑‑‑Those hours work for them.

PN1031

In relation to those that currently do work on the Saturday, part of the arrangement is that they get paid the penalty rates mandated by the award. Yes?‑‑‑That is correct.

*** ELKE RICHTER XXN MR BAKRI

PN1032

When you are deciding when to open the salon and how many employees to roster at a salon on a particular day of the week, the key matter that you take into account is how much demand there is likely to be for services on that given day?‑‑‑That's right.

PN1033

This is because you don't want to pay wages to an employee who will then have insufficient work to do?‑‑‑Correct.

PN1034

Yes?‑‑‑Yes.

PN1035

That's because it's just not cost effective to pay wages for no productive work?‑‑‑Correct.

PN1036

This applies on every day of the week, whether it's a week day or a weekend day. Yes?‑‑‑Yes.

PN1037

This would be your view, that you want to avoid employees being rostered on and then being idle, with insufficient work, regardless of the pay rate that applied?‑‑‑Of course.

PN1038

Yes?‑‑‑Financially it's better off, yes.

PN1039

Thank you. You accept that penalty rates are designed to compensate your employees for the disutility of having to work on Sundays?‑‑‑I do.

PN1040

You accept that there is a disutility for working on Sundays?‑‑‑Yes. I'm not comfortable about it, but yes.

PN1041

Yes, you'd prefer to be at home with your family, wouldn't you?‑‑‑No, I would be happy to work, but I just think that those rates are too high.

PN1042

I'll move on. You've agreed that the success of the salons is largely dependent on the salon providing a good service, so you would also agree with me, I take it, that your staff are key to the success of the business. Yes?‑‑‑Yes.

PN1043

Given the importance of your staff to your business and the importance of staff morale, I take it that you speak to them about any changes in the business that may impact on them?‑‑‑Always.

*** ELKE RICHTER XXN MR BAKRI

PN1044

Always. Given the importance of your staff to your business, you will speak to them about opening the salon on Sunday before making definite plans to do this?‑‑‑Yes.

PN1045

Because you haven't made any such definite plans, you haven't spoken to them yet about this, have you?‑‑‑We have plans to open, but we haven't actually put a timeline on it because of the rates.

PN1046

Yes, you haven't made any definite plans?‑‑‑Any definite, no.

PN1047

Thank you. You've given evidence in your statement that if Sunday penalty rates were reduced you would open the salons on a Sunday. You accept that whether you would open or not would largely depend on your assessment of the level of customer demand on Sundays at that time. Yes?‑‑‑I think if it's put to clients we know we'll get the clients there. So regardless of whether we know the salon's going to be open, if we put it to the clients we know we'll get the bookings. So I don't think we'd have any issues with filling a Sunday, if that's where you're going.

PN1048

But in deciding whether to open the doors on a Sunday, you would have a think about, 'How many clients do we think ‑ ‑ ‑?‑‑‑The structure, yes.

PN1049

‑ ‑ ‑ will come in? How many hours should we open for'?‑‑‑Yes.

PN1050

'How many employees do we need'?‑‑‑Yes.

PN1051

So a key factor that you're taking into account is the level of anticipated customer demand?‑‑‑Yes.

PN1052

Thank you. In your statement you refer to approaching opening on Sundays cautiously, initially, by opening for half the day with a small number of employees, and then you would consider the situation?‑‑‑Yes.

PN1053

So I take it from that statement that you haven't determined how many employees you would roster on?‑‑‑Not at this point.

PN1054

No, and you haven't worked out exactly ‑ ‑ ‑?‑‑‑Until you ‑ ‑ ‑

*** ELKE RICHTER XXN MR BAKRI

PN1055

‑ ‑ ‑ how many hours and which hours?‑‑‑We've worked out roughly how many hours we believe we would need to trial it, and we would possibly look at say one to two staff members and then we would go from there. It's a little bit like how we plan any other day during the week.

PN1056

Yes, but no definite plans. It's still unclear?‑‑‑We're forming some definite plans. So we're at the stage where we're ready, we would like to, but again, until we can see some changes with some rates there's no point in us opening, because we need to be assured that it's going to be financially viable for us to do that.

PN1057

Your rough plan would be to open, you say, for limited hours on a Sunday, and then assess whether the demand sustained being open for that amount of time or whether you should open for longer. Yes?‑‑‑Yes.

PN1058

So you would be experimenting, in effect, as to how much demand there was and whether that could sustain the increase in trade?‑‑‑Yes. I guess you would have to start one way, see how it goes, and then decide as to whether you extend or keep them at that hours, yes.

PN1059

If the insufficient customers took up the service on the Sunday, you accept that you would potentially no longer open on the Sundays. Yes?‑‑‑I would like to believe that in time we will have Sunday as a set day, because I think it would be ideal to add - as I say, we're paying rent on seven days a week, so ideally for us to trade is great.

PN1060

Yes?‑‑‑But there's no point us going there until we know what can we do ‑ ‑ ‑

PN1061

I'll try and ask the question a little bit clearer?‑‑‑Sure.

PN1062

If you did open for a few hours on the Sunday with a limited number of employees, and having done that for a period of time, be it a number of weeks or a month or two, you realised that you weren't making sufficient revenue from doing that, even with the reduced penalty rates, you would most likely look at reducing those hours back to the Monday to Saturday, wouldn't you?‑‑‑Yes.

PN1063

So the risk involved in opening on Sundays, just like any other day, is that there might not be enough customer demand to justify the wages bill. You would agree with that?‑‑‑Yes, wages.

*** ELKE RICHTER XXN MR BAKRI

PN1064

This risk exists every day of the week in your business - in any business?‑‑‑It exists much more on a Sunday than it does during the week.

PN1065

I take it that given that you've not made any definite plans about the number of staff on a Sunday, that you would employ on a - roster on a Sunday, I should say, and the number of hours you would be open, that you haven't been able to calculate precisely the cost of opening on a Sunday. You haven't performed that calculation, have you?‑‑‑Not to that exact extent, but I am aware if we were to look at it we would probably look at three to four hours, and roughly what that costing would sort of be with regard to ‑ ‑ ‑

PN1066

But you haven't sat down and worked out what the wages bill looks like and what the other operating costs would be?‑‑‑Well, if we know the rate then we have, I guess, to an extent. We have looked at that. So, yes, we have, because we're keen to do it and so we've looked at it to an extent with some costs, and at this point in time, as we say, it is too high. It's too high for us to commit to that.

PN1067

I'll put the question a different way. Have you calculated the difference between your current wages bill and what your wages bill would be if you were to open on Sunday? You haven't performed that calculation, have you? And that is under the revised rates if you were to open on the Sunday?‑‑‑On the Sunday. We've looked at it from a Sunday perspective. We haven't added it in to the actual costings for that total week. So we've just done a costing for a Sunday, say for four hours.

PN1068

On what rate have you calculated on the Sunday?‑‑‑Well, I believe I'm working off the correct rates.

PN1069

So you mean the current level of penalty rates?‑‑‑The current rates, correct.

PN1070

I take it then that you haven't worked out that costing on HABA's proposed reduced penalty rates?‑‑‑We've done a rough costing on it, yes.

PN1071

What's that ‑ ‑ ‑?‑‑‑So I don't have those figures in front of me. These are things that we've worked out prior to and ‑ ‑ ‑

PN1072

Thank you, Ms Richter. In your statement you don't say anything about enterprise bargaining. I understand that there is no enterprise bargaining agreement that applies at the salon. Is that correct?‑‑‑I'm not sure what you mean.

PN1073

Do you know what an enterprise agreement is?‑‑‑No.

PN1074

Let me explain. So that is an agreement that ‑ ‑ ‑

*** ELKE RICHTER XXN MR BAKRI

PN1075

VICE PRESIDENT CATANZARITI: What's the point of this question? She says she doesn't know what an enterprise agreement is. Why are you giving her an explanation of what it is?

PN1076

MR BAKRI: Yes, your Honour.

PN1077

VICE PRESIDENT CATANZARITI: How is it going to assist the Commission in what is a penalty rates cases?

PN1078

MR BAKRI: Thank you, your Honour. In your statement you've referred to competition that's faced by your business. Just to clarify this evidence, they are your personal views about who your salons are competing with, and you're referring to, I understand, other beauty salons there. Yes?‑‑‑Yes.

PN1079

Thank you. No further questions.

PN1080

VICE PRESIDENT CATANZARITI: Thank you. Mr Ferguson?

PN1081

MR FERGUSON: No, nothing arising.

PN1082

DEPUTY PRESIDENT ASBURY: Ms Richter, can I just understand, you were asked about opening on a Sunday. Would you consider that a Sunday, in terms of customer take‑up and the cost to you of opening, would be similar to a Saturday?‑‑‑No, it's higher.

PN1083

Currently, but if this proposal was granted would you look at it in the context of a Saturday?‑‑‑Absolutely, yes. I mean, it's - the rates will drop a little bit, it's not going to be quite the same as the Saturday rate, it would still be a little bit higher, but, yes, I would certainly look at opening.

PN1084

You think if you offered the services that you currently offer to your clients on a Sunday and let them know, 'We're open on a Sunday,' that some of them, at least, would take that up?‑‑‑Absolutely, yes. I believe personally our business has the demand there to open, it's just that it's too financially not viable for us at this point.

PN1085

Thank you. Is there anything arising from that?

*** ELKE RICHTER XXN MR BAKRI

PN1086

MR BAKRI: No, there's not, your Honour.

PN1087

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

<THE WITNESS WITHDREW [10.40 AM]

PN1088

VICE PRESIDENT CATANZARITI: Mr Ferguson, that's the last witness you're calling, is it?

PN1089

MR FERGUSON: Yes, in relation - the only ‑ ‑ ‑

PN1090

VICE PRESIDENT CATANZARITI: Ms Harmon? What's the situation?

PN1091

MR FERGUSON: Yes. We've indicated to my learned friends that if we don't get an answer today we'll indicate that we're withdrawing the statement.

PN1092

VICE PRESIDENT CATANZARITI: All right. So the statement of Mr Khoo has not been tendered yet.

PN1093

MR FERGUSON: No.

PN1094

VICE PRESIDENT CATANZARITI: Do you want to tender that now so ‑ ‑ ‑

PN1095

MR FERGUSON: No, we need to withdraw that statement as well.

PN1096

VICE PRESIDENT CATANZARITI: You're withdrawing it?

PN1097

MR FERGUSON: Yes.

PN1098

VICE PRESIDENT CATANZARITI: Right, okay. So that's the evidence?

PN1099

MR FERGUSON: That's the evidence.

PN1100

VICE PRESIDENT CATANZARITI: Yes, thank you. Thank you, Mr Dowling?

PN1101

MR DOWLING: Thank you, your Honour. I wondered if we might just have two minutes.

PN1102

VICE PRESIDENT CATANZARITI: Absolutely. Thank you.

PN1103

MR DOWLING: I understand Ms Gedney is ‑ ‑ ‑

PN1104

VICE PRESIDENT CATANZARITI: We'll take an adjournment.

PN1105

MR DOWLING: Thank you.

SHORT ADJOURNMENT [10.41 AM]

RESUMED [10.48 AM]

PN1106

VICE PRESIDENT CATANZARITI: Thank you, Mr Dowling.

PN1107

MR DOWLING: Thank you for that time, your Honour. Ms Gedney is in the witness box.

PN1108

THE ASSOCIATE: If you just stand up and face the Full Bench. Can you please state your full name and address for the record.

PN1109

MS GEDNEY: Carrie Gedney, (address supplied).

<CARRIE GEDNEY, AFFIRMED [10.49 AM]

EXAMINATION-IN-CHIEF BY MR DOWLING [10.49 AM]

PN1110

MR DOWLING: Thank you, your Honour. Ms Gedney, could you please repeat your full name and address?‑‑‑Carrie Gedney, (address supplied).

PN1111

And your occupation?‑‑‑Hairdresser.

PN1112

Thank you. You've prepared a statement for the purposes of this proceeding?‑‑‑I have.

PN1113

Do you have that statement with you, in front of you?‑‑‑I do.

*** CARRIE GEDNEY XN MR DOWLING

PN1114

Thank you. There are a number of matters that you need to update from that statement?‑‑‑I do.

PN1115

Can I ask you first then to go to paragraph 4? You say there, 'I'm currently employed at the JustCuts franchise in Newcastle as a part-time employee. I work at three different JustCuts salons in the Newcastle area.' Do you wish to correct that second sentence?‑‑‑Yes, I do.

PN1116

Should that now read, 'I work at Charlestown JustCuts salon in the Newcastle area'?‑‑‑Yes, it should.

PN1117

Thank you. If you can then turn, please, to the next paragraph, which starts, 'My regular hours of work are from 17 to 25 per week.' Do you wish to correct that sentence?‑‑‑Yes, I do.

PN1118

Should that now read, 'My regular hours of work are 28.25'?‑‑‑Yes, it should.

PN1119

When did that change?‑‑‑Just this week.

PN1120

Just this week?‑‑‑This week.

PN1121

Prior to this week what was the figure?‑‑‑The hours that I formerly told you, 26.25.

PN1122

Thank you. So just to be clear, so we have a chronology, the 26.25 hours, the hours that were the case prior to this week, how long did you work those 26.25 hours?‑‑‑I believe for the last six months.

PN1123

Thank you. Returning to the 28.25, which are your hours as of this week, they are made up how? In respect of a Monday, what are the hours?‑‑‑9 till 5.30.

PN1124

Nothing on a Tuesday?‑‑‑No.

PN1125

Nothing on a Wednesday?‑‑‑No.

PN1126

Thursday?‑‑‑12 till 9.

PN1127

12 pm till 9 pm?‑‑‑Yes.

*** CARRIE GEDNEY XN MR DOWLING

PN1128

And Friday?‑‑‑I do 9 till 3.

PN1129

Thank you. And Sunday?‑‑‑10 till 5.

PN1130

Just to clarify one other matter, those hours you've just described are 28.25?‑‑‑Yes.

PN1131

When you were working the 26.25, which are the hours over the last six months, the difference in the two hours, where was that in respect of the days you've described?‑‑‑On the Friday. I started at 9 and finished at 1.

PN1132

I see. So when you're working 26.25 it's the same as those hours you've described, except Friday is 9 till 1. It is now 9 till 3?‑‑‑Yes, correct.

PN1133

Thank you. Can I ask you then, please, to turn to paragraph 7 where you set out your normal rate of pay?‑‑‑Yes.

PN1134

Do you see that paragraph?‑‑‑Yes, I do.

PN1135

Do you wish to correct the rates of pay and figures in that paragraph?‑‑‑Yes, I do.

PN1136

Should that read, 'My normal rate of pay is $22.70'?‑‑‑Yes, it should.

PN1137

In place of the words 'around 21'?‑‑‑Yes, it should.

PN1138

'And I earn on average around $683.40 net'?‑‑‑Yes, that's correct.

PN1139

The 683.40 net is working the 28.25 hours?‑‑‑That's correct.

PN1140

When you were working 26.25 the figure was 650.40 net?‑‑‑That's correct.

PN1141

Thank you. The gross figures that match those two, under the 28.25 hours it's $794.22?‑‑‑That's correct, yes.

PN1142

Under the 26.25 it was 743.40?‑‑‑That's correct.

*** CARRIE GEDNEY XN MR DOWLING

PN1143

Thank you. If you could please turn the page ‑ ‑ ‑

PN1144

DEPUTY PRESIDENT ASBURY: Sorry, while you're clarifying ‑ ‑ ‑

PN1145

MR DOWLING: Certainly, Deputy President.

PN1146

DEPUTY PRESIDENT ASBURY: ‑ ‑ ‑ can I just understand, is that $22.70 an hour net or gross?‑‑‑That would be gross, yes.

PN1147

MR DOWLING: If I can ask you then to turn to paragraph 9 and 10 where you set out some calculations about what you will lose. Do you wish to correct paragraph 9?‑‑‑Yes, I do.

PN1148

Is the calculation now that if there was a reduction in penalty rates you would lose a gross amount of $73.78. Correct?‑‑‑Correct.

PN1149

Which is a net figure of $47.96. Correct?‑‑‑Correct.

PN1150

Does that mean in the following paragraph, 'A loss of around $80 per week is massive for me and my family,' that that should read, 'A loss of $73.78'?‑‑‑Correct.

PN1151

Does your evidence otherwise stay the same, that, 'That is massive for me and my family'?‑‑‑Correct.

PN1152

Thank you. You say there you are a single mother with two children. I take it that's not changed in the time since you prepared the statement?‑‑‑That's correct, yes.

PN1153

Thank you. For the Commission, can you just clarify the age of your children?‑‑‑I have a daughter who is eight and a daughter who is 16.

PN1154

And your age, Ms Gedney?‑‑‑I am 50.

PN1155

Thank you. Two last matters. Are you the sole income earner in your household?‑‑‑I am.

*** CARRIE GEDNEY XN MR DOWLING

PN1156

What percentage of your income is used to pay for essential household expenses?‑‑‑Of my income I would say up to - close to 75 per cent.

PN1157

Are there any other income or allowances that your household receives?‑‑‑I do receive child support and the family tax benefit A and part B and a minimal amount from Newstart.

PN1158

Why is it you receive the Newstart allowance?‑‑‑Because I am classed as a low income earner and because I have two children to support, to supplement my income.

PN1159

Thank you. One last question. Are you able to say in a normal shift at the Charlestown JustCuts the percentage of your time spent selling hair products?‑‑‑I would probably spend five to 15 minutes.

PN1160

In a shift of how long?‑‑‑Of an eight and a half hour shift.

PN1161

Thank you. That's the evidence of Ms Gedney.

PN1162

VICE PRESIDENT CATANZARITI: Mr Dowling, I should say, the figures in paragraph 7 may need to be relooked at, because on a quick look at it, it doesn't work out, because if the gross figure is $20.70 it's odd that the next figure would be 683.40.

PN1163

MR DOWLING: Yes.

PN1164

VICE PRESIDENT CATANZARITI: Because they're very close to each other, having done the maths.

PN1165

MR DOWLING: Yes.

PN1166

VICE PRESIDENT CATANZARITI: It's a matter for you how you wish to address that subsequently.

PN1167

MR DOWLING: Yes. I'm happy to do that now or - well, perhaps you can tell us, Ms Gedney, how it is you calculated the gross per week rate that you earn?‑‑‑How I calculated it?

*** CARRIE GEDNEY XN MR DOWLING

PN1168

Yes?‑‑‑I would have done my normal hours - so I work the 6.5 hours at penalty rates, the Sunday rate, and the rest would have been calculated at normal rate, 22.70. So not having a calculator in front of me, like, I would have taken the tax out, calculated the gross amount and then ‑ ‑ ‑

PN1169

So tell us again how you understood the exercise. What were the penalty rate hours, the Sunday hours?‑‑‑The Sunday hours are 6.5 hours at 45 - I think they're 45.40 for Sunday.

PN1170

Two times 22.70?‑‑‑Yes, that's correct.

PN1171

So 45.40?‑‑‑Yes.

PN1172

And you said 6.5. You work between 10 and 5 on a Sunday?‑‑‑Yes.

PN1173

That's seven hours, but is there an unpaid break in that time?‑‑‑We have an unpaid break. Yes, that's correct.

PN1174

So your total for the week should be 45.40 times 6.5?‑‑‑Yes.

PN1175

That leaves a balance of just under 22 hours - 21.75, on my rough calculation, your Honour. That should be ‑ ‑ ‑

PN1176

VICE PRESIDENT CATANZARITI: Sorry, Mr Ferguson wants to say something. Yes, Mr Ferguson?

PN1177

MR FERGUSON: Counsel's just feeding the witness all these answers. It's clearly a leading question.

PN1178

VICE PRESIDENT CATANZARITI: Yes, well ‑ ‑ ‑

PN1179

DEPUTY PRESIDENT ASBURY: We've asked for the ‑ ‑ ‑

PN1180

VICE PRESIDENT CATANZARITI: We've asked her how ‑ ‑ ‑

PN1181

DEPUTY PRESIDENT ASBURY: We've asked for the information.

*** CARRIE GEDNEY XN MR DOWLING

PN1182

VICE PRESIDENT CATANZARITI: We asked for information. I mean ‑ ‑ ‑

PN1183

MR DOWLING: I don't think it's a topic on which leading is inappropriate. We're just trying to work out the calculation. I think we're left then with 21.75 hours. That should be multiplied by 22.7?‑‑‑That's correct.

PN1184

That's how you did the calculation?‑‑‑That's correct, yes.

PN1185

So we should have - Mr Bakri's going to do that for me while I'm on my feet, your Honour. So we should have ‑ ‑ ‑?‑‑‑Yes.

PN1186

‑ ‑ ‑ 6.5 times 45.4 and 21.75 times 22.7.

PN1187

DEPUTY PRESIDENT ASBURY: I haven't got a calculator, but 22.70 looks roughly the weekly rate divided by 38, which is the level 3, as I understand it.

PN1188

MR DOWLING: It's the level 3 rate.

PN1189

DEPUTY PRESIDENT ASBURY: Level 3 rate, yes.

PN1190

MR DOWLING: The 22.7 is the level 3 rate.

PN1191

DEPUTY PRESIDENT ASBURY: Which is the C10 equivalent rate in this award, isn't it?

PN1192

MR DOWLING: Yes, it is.

PN1193

DEPUTY PRESIDENT ASBURY: Yes, okay.

PN1194

MR DOWLING: Mr Bakri tells me that those two figures calculated together are 788.825. I think the gross you indicated to me, Ms Gedney, was 743.40?‑‑‑Okay.

PN1195

No, sorry, 794.22. So we're out by $6, I think, your Honour. I take it from your Honour's question you had a bigger discrepancy.

*** CARRIE GEDNEY XN MR DOWLING

PN1196

VICE PRESIDENT CATANZARITI: I'm more concerned with the net figures, really, but anyway ‑ ‑ ‑

PN1197

MR DOWLING: Yes.

PN1198

VICE PRESIDENT CATANZARITI: But it is what it is.

PN1199

MR DOWLING: I think I'm content for the witness to have explained how she's done it and we'll work with gross figures.

PN1200

VICE PRESIDENT CATANZARITI: Yes. We'll independently have to look at it.

PN1201

MR DOWLING: Thank you, your Honour.

PN1202

VICE PRESIDENT CATANZARITI: Yes, Mr Ferguson?

PN1203

MR FERGUSON: Look, sorry to seek an indulgence - just a lot of new information. I just want to work through some of that. Can I seek a short adjournment, no more than 10 minutes?

PN1204

VICE PRESIDENT CATANZARITI: Yes, we'll do that. Just before you do that, when we get back, Mr Dowling, we'll also do the housekeeping to make sure you actually tender the remaining statements in your case after this ‑ ‑ ‑

PN1205

MR DOWLING: I've got a list of housekeeping items and statements, your Honour.

PN1206

VICE PRESIDENT CATANZARITI: Yes. We'll take a short adjournment. You'll be excused momentarily.

<THE WITNESS WITHDREW [11.01 AM]

SHORT ADJOURNMENT [11.01 AM]

RESUMED [11.10 AM]

<CARRIE GEDNEY, RECALLED [11.10 AM]

EXAMINATION-IN-CHIEF BY MR DOWLING, CONTINUING [11.10 AM]

*** CARRIE GEDNEY XN MR DOWLING

PN1207

VICE PRESIDENT CATANZARITI: Yes, you're back on your former oath. Mr Dowling?

PN1208

MR DOWLING: Sorry, your Honour, I just want to find the most efficient way of getting to the bottom of your Honour's concern.

PN1209

VICE PRESIDENT CATANZARITI: Yes.

PN1210

MR DOWLING: Ms Gedney, can you just please explain to the Commission how it is you calculated the net figures that I described for?‑‑‑I would have added up my hours, my complete hours, and I downloaded the ATO weekly tax - where you take your tax out, and that's how I've calculates my net income.

PN1211

I take it you receive pay slips from your employer?‑‑‑I do.

PN1212

Would you be able to provide to the Commission a pay slip when you were working at 26.25 hours?‑‑‑I can, yes.

PN1213

Are you yet able to provide a pay slip for when you're working at 28.25 hours?‑‑‑I can as of next Monday.

PN1214

Could you please produce two pay slips, done at 26.25 and one at 28.25?‑‑‑I can, yes.

PN1215

If in that exercise the 26.25 is not reflective of your normal 26.25, perhaps give us more than one?‑‑‑Yes.

PN1216

I spoke to my learned friend about that, about requesting the pay slips, and we hope that's the ‑ ‑ ‑

PN1217

VICE PRESIDENT CATANZARITI: That would certainly resolve the problem.

PN1218

MR DOWLING: We hope so. Thank you very much. Vice President, I think I neglected to formally tender the statement, so I do that now.

PN1219

VICE PRESIDENT CATANZARITI: Yes, that's true. Exhibit F.

*** CARRIE GEDNEY XN MR DOWLING

EXHIBIT #F STATEMENT OF CARRIE GEDNEY

PN1220

MR DOWLING: Thank you very much.

PN1221

VICE PRESIDENT CATANZARITI: Thank you, Mr Ferguson.

CROSS-EXAMINATION BY MR FERGUSON [11.11 AM]

PN1222

MR FERGUSON: Thank you. Ms Gedney, my name is Mr Ferguson. I act for Hair & Beauty Australia in these proceedings. I've just got a relatively small number of questions. Just taking you to your current hours of work, when you work on a Monday do you have any unpaid breaks?‑‑‑I do.

PN1223

What are they?‑‑‑They are half an hour lunch break.

PN1224

Yes?‑‑‑And sometimes a 15‑minute unpaid break.

PN1225

What about on a Thursday? Do you have any breaks?‑‑‑I have always a half an hour lunch break.

PN1226

That's unpaid, I assume?‑‑‑That's unpaid.

PN1227

That's your only unpaid break?‑‑‑I occasionally will have another half an hour unpaid break.

PN1228

I assume you take an unpaid break on the Friday as well. How long is that?‑‑‑When I was working the four hours on the Friday?

PN1229

Your current hours?‑‑‑Sorry?

PN1230

For the current hours?‑‑‑Maybe a 15‑minute unpaid break.

PN1231

Do you take any breaks on the Sunday?‑‑‑Half an hour unpaid break.

PN1232

Under the current working hours have you ever had to work any overtime?‑‑‑No.

*** CARRIE GEDNEY XXN MR FERGUSON

PN1233

Under the immediately preceding set of hours ‑ ‑ ‑?‑‑‑No.

PN1234

‑ ‑ ‑ did you ever work any overtime? No?‑‑‑No.

PN1235

You were previously working an arrangement of hours, as I understand it, where your regular hours were at least 17 hours in a week?‑‑‑Yes.

PN1236

When you worked additional hours were they paid at overtime rates?‑‑‑No.

PN1237

When you work on a Sunday does anybody look after your children?‑‑‑I have my ex‑husband or my family look after the children.

PN1238

Yes, and you don't pay them?‑‑‑No.

PN1239

Is that the same when you work on a Friday night - Thursday night, sorry?‑‑‑I have my mother look after the family.

PN1240

Who looks after them, and you don't pay her?‑‑‑No.

PN1241

So you don't incur any child care costs on those occasions?‑‑‑Only when I'm at work - child care would be after school care, OOSH.

PN1242

Yes?‑‑‑On a Monday my daughter is in OOSH. On a Thursday when I'm working she's in OOSH till 6 pm and Monday till 6 pm.

PN1243

Yes?‑‑‑So there's after school care there.

PN1244

DEPUTY PRESIDENT ASBURY: What's OOSH?‑‑‑Out of School Care, it's called.

PN1245

Out of School Care, okay?‑‑‑OOSH, yes.

PN1246

MR FERGUSON: Are you currently trying to obtain any additional hours of employment?‑‑‑Not at the moment, I'm not.

*** CARRIE GEDNEY XXN MR FERGUSON

PN1247

Ms Gedney, I just want to ask you some questions about the shopping centres in the Newcastle area. I understand that you currently work in the Charlestown Square Shopping Centre. Is that right?‑‑‑I do.

PN1248

That shopping centre is obviously open on a Sunday, isn't it?‑‑‑It is, yes.

PN1249

And the JustCuts salon, as you've said, opens on Sunday, obviously?‑‑‑It does.

PN1250

You're aware, aren't you, that there's also a store by the name of Allan's Mens Hairdressing in that centre?‑‑‑Yes.

PN1251

It's also open on a Sunday, isn't it?‑‑‑It is.

PN1252

There's also a store by the name of April's Massage in that centre, isn't there?‑‑‑I think. I don't know for sure.

PN1253

You'd be aware that there's an Australian Skin Clinics in the centre?‑‑‑Yes.

PN1254

It's open on a Sunday also, isn't it?‑‑‑Okay. I can't confirm that they're open on a Sunday. I don't know.

PN1255

There's also a Barber Industries store?‑‑‑There is.

PN1256

You're aware that that opens on a Sunday?‑‑‑Yes.

PN1257

Then there's a Christiane's Hair Design as well?‑‑‑Correct.

PN1258

That also opens on a Sunday?‑‑‑Correct.

PN1259

There's an Ella Bache in that store as well, isn't there?‑‑‑Again, I don't know Ella Bache.

PN1260

There's a Golden Beauty & Nail store, isn't there?‑‑‑I don't - I'm not aware of that one.

PN1261

You might know this. There's a Just Teezn?‑‑‑I do know that one.

*** CARRIE GEDNEY XXN MR FERGUSON

PN1262

That's also open on a Sunday?‑‑‑I do know that one.

PN1263

That also provides hair services, doesn't it?‑‑‑Sure. I do know that one.

PN1264

There's also a Laser Clinics Australia in that centre, isn't there?‑‑‑I'm not aware of that one, no.

PN1265

There's also a Magic Hands Massage?‑‑‑I do know that one.

PN1266

You're aware that that's also open on a Sunday?‑‑‑Correct.

PN1267

There's also a Pearl Nails in that centre, isn't there?‑‑‑Yes, correct.

PN1268

That's also open on a Sunday, isn't it?‑‑‑Correct.

PN1269

There's a Price Attack?‑‑‑Yes.

PN1270

That's also open on a Sunday?‑‑‑Correct.

PN1271

There's a ProfessioNAIL?‑‑‑Correct.

PN1272

That's also open on a Sunday, isn't it?‑‑‑Mm hmm.

PN1273

There's a Star Nail & Beauty in the centre as well, isn't there?‑‑‑I think. I don't know that one myself. I do know ‑ ‑ ‑

PN1274

Yes, that's fine?‑‑‑Yes.

PN1275

I understand you previously worked at salons at two other locations in the Newcastle area. Just to clarify, were all of those salons owned by the same franchisee?‑‑‑At the time they were, yes.

PN1276

So at that time was that franchisee your employer?‑‑‑Yes.

*** CARRIE GEDNEY XXN MR FERGUSON

PN1277

I understand there are actually five shopping centres in the Newcastle area. Is that your understanding?‑‑‑I'm just trying to think. There is. Would you like me to name them?

PN1278

Yes?‑‑‑There is Glendale, there's Marketown, Kotara, Charlestown, and they do Jesmond Shopping Centre as well.

PN1279

Yes?‑‑‑That's five that I know.

PN1280

Was one of the salons that you've worked in in Marketown Shopping Centre?‑‑‑Yes, correct.

PN1281

That centre was open on a Sunday, wasn't it?‑‑‑Correct.

PN1282

The JustCuts was open on a Sunday there as well?‑‑‑Correct.

PN1283

You'd agree that there was Christiane's Hair Design in that centre?‑‑‑Correct.

PN1284

That was open on a Sunday?‑‑‑Yes.

PN1285

There was also an April's Massage?‑‑‑I don't know April's Massage there.

PN1286

There was also a Platinum Nail Bar in that centre?‑‑‑Again, I don't know that one.

PN1287

Have you ever worked with the Jesmond Stockland Mall- or at the Jesmond Stockland Mall?‑‑‑I have done one shift there.

PN1288

It was open on Sundays as well?‑‑‑Yes, that's correct.

PN1289

The JustCuts was open on a Sunday?‑‑‑Correct.

PN1290

You're aware that that shopping mall also had a Christiane's Hair Design?‑‑‑I don't know Christiane's there.

PN1291

Would you agree with me that there was a Rainbow Nails?‑‑‑At Jesmond?

*** CARRIE GEDNEY XXN MR FERGUSON

PN1292

Yes?‑‑‑I don't know the Jesmond Shopping Centre well.

PN1293

Are you familiar with the Westfield Kotara?‑‑‑Kotara.

PN1294

Kotara?‑‑‑Yes.

PN1295

That's open on a Sunday, isn't it?‑‑‑It is, correct.

PN1296

You'd agree with me that there are a number of hairdressing stores or salons in that centre?‑‑‑There are some, yes.

PN1297

You're aware that some of those salons are open on a Sunday?‑‑‑Correct.

PN1298

What about the Glendale Stockland mall? You're aware that that's open on a Sunday as well?‑‑‑Correct.

PN1299

You're aware that there is a Christiane's Hair Design in that mall as well?‑‑‑Yes, correct.

PN1300

You'd agree that's open on Sunday also?‑‑‑It is.

PN1301

Are you aware that there are also a number of stores opening, Nail & Beauty Services?‑‑‑Correct.

PN1302

In Glendale, yes. You're aware that they're open on a Sunday as well?‑‑‑Correct.

PN1303

Can I just take you to paragraph 15 of your statement? You there say you have a friend who is a cleaner who earns $30 per hour. Is your understanding of what she earns just based on your discussions with her?‑‑‑Correct.

PN1304

Those are the questions.

PN1305

VICE PRESIDENT CATANZARITI: Thank you. Mr Dowling?

PN1306

MR DOWLING: No re‑examination, your Honour.

*** CARRIE GEDNEY XXN MR FERGUSON

PN1307

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

<THE WITNESS WITHDREW [11.21 AM]

PN1308

VICE PRESIDENT CATANZARITI: Can we have the next witness?

PN1309

MR DOWLING: That is all of the witnesses who are required to attend.

PN1310

VICE PRESIDENT CATANZARITI: So Rachel Hubert will not be attending.

PN1311

MR DOWLING: She's not required to attend. Her statement will be relied upon, save for paragraphs 9 and 10 are to be deleted.

PN1312

VICE PRESIDENT CATANZARITI: So the version I have at the moment is not marked up that way.

PN1313

MR DOWLING: That's correct.

PN1314

VICE PRESIDENT CATANZARITI: We'll delete item - so that will now become exhibit G.

EXHIBIT #G STATEMENT OF RACHEL HUBERT

PN1315

MR DOWLING: Thank you, your Honour. Chantelle Geritz, is not required for cross‑examination. We tender her statement, and it's a statement that does have some strike‑throughs. I can identify the relevant paragraphs.

PN1316

VICE PRESIDENT CATANZARITI: Yes.

PN1317

MR DOWLING: The form of the statement to be tendered for Ms Geritz is the form that the Commission presently have. There are no third changes to the strike‑throughs from the version the Commission holds.

PN1318

VICE PRESIDENT CATANZARITI: That will become exhibit H.

EXHIBIT #H STATEMENT OF CHANTELLE GERITZ

PN1319

MR DOWLING: Thank you, your Honour. The same applies to Ms Brandreth, save one correction that my learned friends are on notice of. She describes herself in that statement as employed by the AWU. She is and has been since 8 March of this year employed by the National Tertiary and Education Union. Save that correction ‑ ‑ ‑

PN1320

VICE PRESIDENT CATANZARITI: Exhibit I.

EXHIBIT #I STATEMENT OF MS BRANDRETH

PN1321

MR DOWLING: Thank you, your Honour. That then, lastly, leaves Associate Professor O'Brien. I say associate professor. I think when he signed his expert report he signed it as senior lecturer. He's since received - or he signed it as Dr O'Brien, senior lecturer. He's since become an associate professor.

PN1322

We tender his report. We were told there are a very small number of typographical errors. I've advised my friend of this. Associate Professor O'Brien is going to tell us those, so we're sorry we're not in a position to tell you today, but what we propose is to provide the corrected copy - I think they are very small and of no substance, but I think the associate professor was just concerned if his report's going to appear on the Internet that there's not a full stop out of place.

PN1323

VICE PRESIDENT CATANZARITI: All right. It will be exhibit J, as amended.

EXHIBIT #J STATEMENT OF ASSOCIATE PROFESSOR O'BRIEN AS AMENDED

PN1324

MR DOWLING: That is all of the witness evidence for the two union respondents. That only leaves a couple of housekeeping matters from me, your Honour.

PN1325

VICE PRESIDENT CATANZARITI: Yes, go ahead.

PN1326

MR DOWLING: The first is in respect of Mr Thatcher. We've been told from our learned friends that he's provided an additional document, but has not yet provided one of the leases that were requested, and as we understand it he's travelling, but he's going to provide that to my learned friend, who will provide it to us as a matter of urgency.

PN1327

VICE PRESIDENT CATANZARITI: Right.

PN1328

MR DOWLING: That's a fair summary, my learned friend says. So that's as much as we can say about that item. In respect of the transcript ‑ ‑ ‑

PN1329

VICE PRESIDENT CATANZARITI: So you'll then form a view as to whether you need to ask him some supplementary questions when you've got the material.

PN1330

MR DOWLING: Yes, or indeed whether we might just tender the lease as it is and not ask him any supplementary questions, but we will do our best not to inconvenience everyone. We will only require him if it's absolutely necessary in the circumstances.

PN1331

In respect of the second item, the transcript, whether your Honour would like to make any arrangements in respect of how confidentiality may be dealt with. We are content for the transcript as it's released to go to our learned friend, who can then excise any relevant parts that he considers appropriate.

PN1332

VICE PRESIDENT CATANZARITI: Yes. I think yesterday's transcript will be available sometime today. So you'll get that, and then today's will be available some time tomorrow.

PN1333

MR DOWLING: Yes. I think, in contradistinction to what I just said, rather than it just going to my learned friend and him excising, I wonder if it could come to both the parties.

PN1334

VICE PRESIDENT CATANZARITI: Both parties, in its pure form.

PN1335

MR DOWLING: Yes, of course.

PN1336

VICE PRESIDENT CATANZARITI: Yes, that will be fine.

PN1337

MR DOWLING: To be treated confidentially by us until such time ‑ ‑ ‑

PN1338

VICE PRESIDENT CATANZARITI: Yes. It can be treated confidentially until the amendments have been made.

PN1339

MR DOWLING: Correct.

PN1340

VICE PRESIDENT CATANZARITI: It will not be posted.

PN1341

MR DOWLING: Thank you very much, your Honour. That only leaves the folder that ‑ ‑ ‑

PN1342

VICE PRESIDENT CATANZARITI: Yes, the folder.

PN1343

MR DOWLING: ‑ ‑ ‑ the Commission was provided with on Friday. I understand my learned friend's position is this, that there's no objection to any of the documents save the last three documents, which are the three academic articles, but I'll let him make his position clear.

PN1344

MR FERGUSON: We looked through the documents further overnight, and that is the position, in the sense that we don't oppose material other than the documents at 18, 19 and 20, which are some academic articles. The Bench will recall ‑ ‑ ‑

PN1345

VICE PRESIDENT CATANZARITI: I don't have the folder. Just one moment. We've only got one.

PN1346

MR DOWLING: We've got three sets we can provide to the Bench.

PN1347

VICE PRESIDENT CATANZARITI: Yes. The Bench doesn't have them.

PN1348

MR FERGUSON: I'm sorry about that. I understand - and my learned friend will correct me if I'm wrong - that they don't intend to rely on this material as evidence as such, it was just material that in some way might supplement or assist their submissions. In relation to items 1 to 17, and we will grapple with that detail in the period between now and the full hearing, but we are concerned that we won't be able to respond properly to the academic articles.

PN1349

If I take a step back, the Bench will recall that there was a set of directions that provided for comprehensive written submissions and any evidence to be filed by those opposed to the claim back in June 2018.

PN1350

It's not apparent what possible reason or necessity there was for this additional material to be filed at such late notice, late on the Friday before the hearing, especially - you'll recall that this matter was listed for hearing before and no such material was filed. It's only been adjourned subsequently at the request of the unions.

PN1351

The difficulty for us, or my client HABA, is in part the nature of the material. It appears to include various elements, at least in part, that constitute economic modelling or analysis of certain matters. That sort of material is not the sort of material that we would be in a position to grapple with properly between now and the hearing. It's the sort of material that we'd ideally seek expert assistance in terms of trying ‑ ‑ ‑

PN1352

VICE PRESIDENT CATANZARITI: Mr Dowling, what's the purpose of these three articles, one of which has not even been published?

PN1353

MR DOWLING: Your Honour, this is academic literature in the public domain

PN1354

VICE PRESIDENT CATANZARITI: One is not in the public domain?

PN1355

MR DOWLING: Sorry?

PN1356

VICE PRESIDENT CATANZARITI: It says the article has been approved for publication but not yet published.

PN1357

MR DOWLING: Yes. I think it still is in the public domain, but not in its published form. The applicant raises squarely as part of its case that there is an employment effect from a reduction in the penalty rates. We made very clear in our submissions in June of 2018 that we rejected that submission and they were on notice that our position is that there's no basis for that submission.

PN1358

The applicant, of course, chose not to lead any evidence about that proposition. It could have. It didn't. It still hasn't, and we put before the Commission - this is a review. We say the Commission should properly have regard to academic material and literature.

PN1359

VICE PRESIDENT CATANZARITI: Why are they served so late? If item 18 was available as of September 18, why did you hold back on them?

PN1360

MR DOWLING: There was no deliberate - if there's a suggestion there's some deliberate attempt to hold them and provide them late, that is not so, but the only thing that can be said about the late service is that there's some denial of procedural fairness.

PN1361

VICE PRESIDENT CATANZARITI: Exactly, and the point is if it's a serious one it will derail the case.

PN1362

MR DOWLING: But what we don't understand and what hasn't been explained by my learned friend is what is in any material sense the denial of procedural fairness, because this issue was live. From the moment the applicant filed its application it was clear that they were asserting that there was an employment effect, and as of June of 2018 it was clear we opposed that proposition.

PN1363

The applicant has had since filing its application an opportunity to put on material about the employment effects. That opportunity has been live from the moment it filed its application. It can't sensibly be said, in our submission, that that decision as to whether to file evidence about the employment effect only arose because they saw an academic article on the Friday.

PN1364

There is no material way in which an opportunity for procedural fairness is denied. This issue is live. This issue is something that the proponent for change should have been aware of and failed and chose, made a deliberate decision, not to put on evidence about. That didn't change as of Friday. That is something that has always been open. So in our submission it is completely misguided to suggest that there's some procedural fairness deficiency by raising the question of the employment effect by the service of these articles. That issue has always been there.

PN1365

In other respects, of course, articles 18 and 19 are authored by Mr O'Brien. We offered up Mr O'Brien to be cross‑examined. If my learned friend wanted to say there's some deficiency in these reports he could have put it squarely to Mr O'Brien. Again, he's made a deliberate forensic decision not to ask Mr O'Brien.

PN1366

VICE PRESIDENT CATANZARITI: Item 20 I've myself seen before.

PN1367

MR DOWLING: Yes, I'm sure you have, your Honour.

PN1368

VICE PRESIDENT CATANZARITI: It's been definitely out there.

PN1369

MR DOWLING: But clearly they could not have been filed, items 18 and 19, in our June submissions, but that's not material, in our submission. This issue is live, has been alive. That is the important aspect that my learned friend misses, in our submission. It is, as I said, a review - this is material that we say the Commission should not turn a blind eye to.

PN1370

VICE PRESIDENT CATANZARITI: Yes. What do you want to say, Mr Ferguson?

PN1371

MR FERGUSON: This material was not referred to in the submissions previously filed, nor did those submissions - and I ‑ ‑ ‑

PN1372

VICE PRESIDENT CATANZARITI: Mr Dowling says some of the material was.

PN1373

MR FERGUSON: I appreciate that, but nor did those submissions, in my view, cover the range of arguments that were potentially advanced now through these articles. They seem to - materially trying to expand the scope of the submissions that they're advancing in opposition to us by now tendering this at this late stage. I understood that this was not to be tendered as evidence. There wasn't any deliberate decision to not cross the expert witness in relation to this material. We had foreshadowed already that we opposed this. Obviously we would potentially need to revisit that issue.

PN1374

The unfairness to us is that we couldn't prepare our material in reply to their material given that we didn't have all of it, and we advanced a case in response to the case that was put against us. It's unfair that my client now be put in the position of having to materially change the case because at, you know, one minute to midnight a whole different array of material is advanced.

PN1375

I understand that it's a review, but the Commission does still have to deal with this in a procedurally fair manner, and I don't think fairness dictates that they be afforded endless opportunities to better their case in circumstances where they've sought an extension to the hearing dates. We say it will materially prejudice us. We're not in a position to deal with it. We wouldn't be in a position to cross the witness today. We would have needed to seek instructions.

PN1376

We'd also need to get some instructions as to whether we'd want to put on additional material in reply to this, and that may not be something that could be accommodated, but in any event, there's obviously significant costs that my client would now be incurring that we'd need to give thought to, and that shouldn't be something that we're put to at this stage, when there have already been directions for the filing of comprehensive material. As I said, we do strongly object.

PN1377

VICE PRESIDENT CATANZARITI: Is there anything you want to say, Mr Dowling, before we deal with it?

PN1378

MR DOWLING: Only this, your Honour. Again, there's ‑ ‑ ‑

PN1379

VICE PRESIDENT CATANZARITI: You want to lead it as evidence at this point. You don't want to just put it in as in the penalty rates case, or a number of articles just tendered for the benefit of informing the Bench.

PN1380

MR DOWLING: Yes, we want to put it in on that basis, your Honour, the latter basis, a number of articles to which the Commission should have regard.

PN1381

VICE PRESIDENT CATANZARITI: Does that make a difference, Mr Ferguson?

PN1382

MR FERGUSON: We still oppose it going in. We don't say it's something that you should have regard to. My primary concern is, as I said, we won't be in a position to deal with all of the complex matter.

PN1383

VICE PRESIDENT CATANZARITI: Yes. Anything further, Mr Dowling?

PN1384

MR DOWLING: Just one issue, your Honour, and my learned friend repeats the mistake, we say, which is to say they respond to the case put by us. It's the applicant's case. That's the decision it made. Unless you have any questions, they are the submissions I wish ‑ ‑ ‑

PN1385

VICE PRESIDENT CATANZARITI: No. We'll take a short adjournment to consider this.

SHORT ADJOURNMENT [11.37 AM]

RESUMED [11.50 AM]

PN1386

VICE PRESIDENT CATANZARITI: Thank you. We've considered the request to include in the bundle items 18, 19 and 20. We reject the tender of that material. We do so on the basis first that in the material filed by Dr O'Brien in the proceedings, in which a decision was made not to cross‑examine Dr O'Brien, there is no reference by Dr O'Brien that he's relied on any of that material. It could not be said therefore that Mr Ferguson would have been on notice in relation to how that material would be relevant.

PN1387

Secondly, given how old the majority of that material is, there was ample time to have filed that material prior to the hearing commencing.

PN1388

MR DOWLING: Just one matter by clarification, your Honour. I think your Honour in your ruling said 'We reject the tender' ‑ ‑ ‑

PN1389

VICE PRESIDENT CATANZARITI: Sorry, when I use the word 'tender' I mean we're not allowing it to be admitted at all for those three bits of material either by way of information or by way of a tender as part of the bundle.

PN1390

MR DOWLING: Thank you.

PN1391

VICE PRESIDENT CATANZARITI: Any housekeeping from you, Mr Ferguson?

PN1392

MR FERGUSON: No, Vice President.

PN1393

VICE PRESIDENT CATANZARITI: All right, so we'll resume next week in Melbourne.

PN1394

MR FERGUSON: Yes, your Honour.

PN1395

VICE PRESIDENT CATANZARITI: Thank you.

ADJOURNED INDEFINITELY [11.51 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #4 STATEMENT WITH ATTACHMENTS A TO H OF PATRICK SULLIVAN................................................................................................................................. PN919

ELKE RICHTER, AFFIRMED.......................................................................... PN922

EXAMINATION-IN-CHIEF BY MR FERGUSON......................................... PN922

EXHIBIT #5 STATEMENT OF ELKE RICHTER DATED 13/03/2018....... PN930

CROSS-EXAMINATION BY MR BAKRI....................................................... PN949

THE WITNESS WITHDREW.......................................................................... PN1001

ELKE RICHTER, RECALLED....................................................................... PN1018

CROSS-EXAMINATION BY MR BAKRI, CONTINUING........................ PN1018

THE WITNESS WITHDREW.......................................................................... PN1087

CARRIE GEDNEY, AFFIRMED.................................................................... PN1109

EXAMINATION-IN-CHIEF BY MR DOWLING......................................... PN1109

THE WITNESS WITHDREW.......................................................................... PN1206

CARRIE GEDNEY, RECALLED................................................................... PN1206

EXAMINATION-IN-CHIEF BY MR DOWLING, CONTINUING............ PN1206

EXHIBIT #F STATEMENT OF CARRIE GEDNEY................................... PN1219

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1221

THE WITNESS WITHDREW.......................................................................... PN1307

EXHIBIT #G STATEMENT OF RACHEL HUBERT.................................. PN1314

EXHIBIT #H STATEMENT OF CHANTELLE GERITZ........................... PN1318

EXHIBIT #I STATEMENT OF MS BRANDRETH...................................... PN1320

EXHIBIT #J STATEMENT OF ASSOCIATE PROFESSOR O'BRIEN AS AMENDED............................................................................................................................... PN1323