PN1

THE ASSOCIATE: Matter AM2021/72, for directions before Hatcher VP.

PN2

THE VICE PRESIDENT: Can I take the appearances? Mr Avallone, you appear for Menulog?

PN3

MR B AVALLONE: Yes, Vice President.

PN4

THE VICE PRESIDENT: Mr Gibian, you appear for the Transport Workers Union?

PN5

MR M GIBIAN: May it please the Commission.

PN6

THE VICE PRESIDENT: Ms Rafter, you appear for ACCI and ABI?

PN7

MS A RAFTER: Yes, your Honour.

PN8

THE VICE PRESIDENT: Ms Paul, you appear for the Ai Group? You're microphone is not on.

PN9

MS V PAUL: Sorry, yes, your Honour.

PN10

THE VICE PRESIDENT: Mr Ryan, you appear for the Australian Road Transport Industrial Organisation?

PN11

MR P RYAN: That is correct, your Honour.

PN12

THE VICE PRESIDENT: So we're just here to finalise some procedural issues for next week's hearing. First of all, can I confirm that it's only the parties present, I think, who plan to appear in person, except for AiG, is that right?

PN13

MS PAUL: Yes, your Honour, I'll be appearing by Teams.

PN14

THE VICE PRESIDENT: All right. And all other parties here are appearing in person, is that correct?

PN15

MR GIBIAN: Yes.

PN16

THE VICE PRESIDENT: Now for the length of the hearing. So there's two witnesses, Mr Belling and Mr Clayton. Are either of those witnesses required for cross-examination?

PN17

MR AVALLONE: Not from my respective, Vice President, and not so far as I'm aware. To be fair, the only representative that I had a discussion with is Mr Gibian. We, Menulog, do not require the TWU's witness and I understand that the TWU do not require Mr Belling for cross-examination. I'd be grateful if I could ask, through you, Vice President, for some indication as to whether any of the other interveners do seek Mr Belling to be available for cross-examination.

PN18

THE VICE PRESIDENT: All right. Well, that's my question as well. So does any party here present today require any of the witnesses for cross-examination?

PN19

MS RAFTER: Ms Rafter, for the Australian Chamber and ABI, I confirm we had intended some short time to cross-examine Mr Belling.

PN20

THE VICE PRESIDENT: All right. What's your estimate of time for that?

PN21

MS RAFTER: We had estimated about 30 minutes to 40 minutes for that. That estimate was originally based on the assumption that the TWU would be cross-examining, so I would estimate around 40 minutes.

PN22

THE VICE PRESIDENT: All right. Mr Gibian, can you confirm you don't require him for cross-examination?

PN23

MR GIBIAN: Yes, that's correct, your Honour. I'm getting a bit of feedback, if you can hear me adequately. I was just going to make one observation about that. There is a good deal of material in Mr Belling's statement with which we don't, necessarily, agree and in relation to which we would contest his capacity to give that evidence, particularly those parts that appear from paragraph 49 onwards or, perhaps, more particularly, from paragraph 74 onwards, in which various generalised assertions are made as to comparisons between the manner in which Mr Belling understands what he describes as the on-demand industry and the way in which Mr Belling understands the road transport industry, or aspects of it, and how they traditionally operate.

PN24

However, we don't regard those matters as, on any parties submissions, relevant to or determinative of the threshold issues of award coverage which are being dealt with by the Full Bench at this stage.

PN25

We would apprehend that they may be said to be relevant to matters of merit, in relation to appropriate award provision, if the matter progresses beyond this stage, in which case we would have both cross-examination and much to say about the substance of those factual assertions, which are made. But, as I say, on the parties submissions, we don't think it necessary to ventilate those matters, for the purpose of the threshold argument as to whether, particularly, the Road Transport Award applies.

PN26

THE VICE PRESIDENT: All right. Does it follow from that, though, that there won't be a formal objection to those paragraphs? That is, that, in effect, they're just matters as to the probative value of the evidence?

PN27

MR GIBIAN: Yes, your Honour. So far as the threshold stage, at least, is concerned. We may well adopt a different view, depending upon how and if they are relied upon, at a subsequent stage in the proceedings.

PN28

THE VICE PRESIDENT: All right. Mr Ryan and Ms Paul, do you require any witness for cross-examination?

PN29

MS PAUL: From our part, your Honour, no. But on the same basis that we see this as just dealing with the issues relating to threshold issues so, therefore, we reserve our right if and when the matter proceeds.

PN30

THE VICE PRESIDENT: Mr Ryan?

PN31

MR RYAN: In the same situation, your Honour.

PN32

THE VICE PRESIDENT: All right. So, Mr Avallone, can you make Mr Belling available, on the basis of the time estimate given?

PN33

MR AVALLONE: Yes, your Honour. Just so I can give him an indication, your intention, Vice President, would be to hear from the witness first and then go into submissions?

PN34

THE VICE PRESIDENT: Yes.

PN35

MR AVALLONE: Thank you.

PN36

THE VICE PRESIDENT: All right.

PN37

MR GIBIAN: Your Honour, can I just add, I just foreshadow, if there is anything arising out of ACCI's cross-examination I may seek leave, at that point, if there's anything arising from the evidence that Mr Belling gives, at that stage. But we'll cross that bridge when we get to it.

PN38

THE VICE PRESIDENT: All right. Now, so, Mr Clayton will not be required to attend, Mr Gibian, on the basis of that indication, so we can simply receive his statement into evidence.

PN39

So next thing is the issue of time. So a second day was reserved but given that there'll only be oral evidence to the extent discussed and every party has filed detailed written submissions, will there be any need for the matter to go beyond one day?

PN40

MR AVALLONE: I certainly hope not, Vice President, and I don't think so, based on the estimate that's been given.

PN41

THE VICE PRESIDENT: Obviously there's quite a few parties involved so I wouldn't expect - and there's a great deal of overlap between a lot of the parties submissions, so hopefully if one party takes a lead from a certain perspective that there's no need for extensive repetition by other parties.

PN42

Well, we'll keep the second day in reserve, but I think the expectation should be that it will finish within the first day.

PN43

The next thing is, in the statements of Mr Belling and Mr Clayton there's a good deal of redacted material. Is it the intention of the parties that the Commission not see the unredacted material - the redacted material? That is, that we not see an unredacted version?

PN44

MR AVALLONE: That was my client's intention, Vice President, that we file is what we file, if that's what we propose to put before the Commission.

PN45

THE VICE PRESIDENT: Okay. Is it the same for your side, Mr Gibian?

PN46

MR GIBIAN: I understand so, your Honour, but I'm not sure there was any particular objection to the Commission seeing it, if the Commission wished to. I think it was more the public nature of it that was of concern.

PN47

THE VICE PRESIDENT: All right. Are there any other procedural issues we need to deal with?

PN48

MR AVALLONE: Just in terms of batting order, your Honour, really just to - I've made an assumption that, as the applicant, we'd open the batting and then it's a matter for you, Vice President, as to who goes next and the interveners. I just wanted to clarify that, so that we're all - - -

PN49

THE VICE PRESIDENT: Yes. Well, I think Menulog will go first, as the applicant. I must say I'm not entirely sure yet what you're applying for, but proceedings have taken a path, so I'm not going to take a right from that path.

PN50

Then, beyond that point, I'll leave it to the respondents, before next week, to work out between themselves what order they wish to make submissions.

PN51

MR AVALLONE: Thank you, your Honour. Just one other quick thing, can I just indicate this, that conscious of the COVID restrictions, I do ask that if it were possible that I have with me it's up to an additional four people with me. Mr Belling, of course, as the witness, but three instructors after that, to give me some instructions, if required.

PN52

THE VICE PRESIDENT: So my associate's been making arrangements for this. So I think the total number we're permitted to have in the court room, apart from each members and staff, is 20 persons. The note I have is that there'll be five from Menulog, two from the TWU, two from ACCI and one from RTO, is that right?

PN53

MR AVALLONE: That's my understanding, yes.

PN54

THE VICE PRESIDENT: So the only issue, Mr Avallone, is not the total number, but there may be some (indistinct) about the list, but there may be some need for some degree of distancing between your five and everyone else, of course.

PN55

All right. Any other procedural matters we need to deal with?

PN56

MR AVALLONE: No, thank you.

PN57

THE VICE PRESIDENT: All right. Thank you for your attendance and we'll see you next week.

PN58

MR GIBIAN: May it please.

ADJOURNED INDEFINITELY [9.40 AM]