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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009�������������������������������������� 1052357

 

JUSTICE ROSS

 

AM2014/305

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards
(AM2014/305)

 

Melbourne

 

9.00 AM, THURSDAY, 27 AUGUST 2015

 

Continued from 21/08/2015

 


PN100      

JUSTICE ROSS:  Could I have the appearances in Melbourne, please?

PN101      

MS K BURKE:  My name is Ms Burke, initial K, seeking permission to appear on behalf of United Voice.

PN102      

JUSTICE ROSS:  Thanks, Ms Burke.

PN103      

MR MOORE:  Apologies for my lateness, your Honour.

PN104      

JUSTICE ROSS:  That's all right, Mr Moore.

PN105      

MR S MOORE:  Moore, initial S, permission to appear for the SDA.

PN106      

JUSTICE ROSS:  I don't think we need to do the permission each time, otherwise it will probably take up the first 15 minutes of every hearing.  Can I go to Sydney?

PN107      

MS S WELLARD:  Wellard, initial S, for the Pharmacy Guild of Australia, the Australian Hotels Association and the Accommodation Association of Australia.

PN108      

JUSTICE ROSS:  Thanks, Ms Wellard.

PN109      

MS L CRUDEN:  Cruden, initial L, appearing for the Australian Industry Group, your Honour.

PN110      

JUSTICE ROSS:  Thank you.

PN111      

MR WARREN:  If the Commission pleases, Warren for Clubs Australia Industrial.

PN112      

JUSTICE ROSS:  Thank you, Mr Warren.

PN113      

MR G PARKES:  Parkes, initial G, on behalf of Restaurants and Catering Australia.

PN114      

JUSTICE ROSS:  Thank you.

PN115      

MR N WARD:  If the Commission pleases, Ward, initial N, for Australian Chamber of Commerce and Industry, Australian Business Industrial and the NSW Business Chamber.

PN116      

JUSTICE ROSS:  Okay, thank you.  Look, it might assist if I make some preliminary observations about what I'm not going to be dealing with.  Then I particularly want to go to the SDA's written material and then go to the material that's been put in essentially by Restaurant and Catering, the AHA and the AAA.  I don't propose to deal with the Restaurant and Catering's application to vary the directions in relation to the filing of submissions at this point.  Mr Parkes, we'll deal with that matter;  it's just that until we have a better idea as to how we're going to be tracking with the expert evidence I think it would be premature to deal with it at the moment, okay?  But we will deal with it in the next group of sittings that we have and all parties will be put on notice as to when we'll deal with it, all right?

PN117      

MR PARKES:  Thanks, your Honour.

PN118      

JUSTICE ROSS:  The second thing I should indicate is that the expert evidence that we're looking to deal with if possible in the last week of the first three weeks of sittings commencing Tuesday week is the employer expert evidence.  It seems likely on any estimate that we won't get to any of the union expert evidence in that period.  So that's what I wanted to say about those matters.  In relation to the SDA's correspondence, I'm not intending to deal with much of that either, other than to say, "no", in relation to some of it.

PN119      

The request to vacate, the hearing of expert evidence on the 22nd to the 25th, the answer to that is no.  It's far too premature to make any assessment of that.  We'd already foreshadowed that we would be dealing with the expert evidence then.  We'll see how we go with the lay evidence. But on the estimates from United Voice, there will be some time available and frankly, I'm taking with a grain of salt some of the estimates, particularly that it will take 30 minutes to cross-examine each of the union lay witnesses, given the nature of their evidence.  I think that's unlikely.

PN120      

In relation to the notices to produce, what that I would propose is that - and these would be formalised by directions;  I'll outline the directions and see if anyone wants to say anything about the directions - the union parties are to file their notices to produce in respect of the employer expert evidence by 12 noon tomorrow.  Any objections to the notices to produce are to be filed by 4 pm on Wednesday 2 September;  Wednesday of next week.  The objections should take the form of a full written submission.

PN121      

Any reply to an objection is to be filed by 4 pm, Friday 4 September.  Again, the reply should take the form of a full written submission.  A short oral hearing in relation to any objections will take place at the commencement of the proceedings on Tuesday, 8 September.  Firstly, are there any questions about those proposed directions?

PN122      

MS BURKE:  Just two matters:  just going back to the estimates of the - - -

PN123      

JUSTICE ROSS:  No, no - I don't want to deal with that yet.

PN124      

MS BURKE:  Yes.

PN125      

JUSTICE ROSS:  I'm dealing with the notices to produce now.

PN126      

MS BURKE:  Just that there will be extreme difficulty meeting that timetable - our objections for lay evidence are due tomorrow.  We have the expert outlines and reports to finalise by 4 September - - -

PN127      

JUSTICE ROSS:  Yes, but you've known for some time what material you wanted to produce.  You've asked the employers what it is.  All you're being asked to do is to file your notices to produce by 12 noon tomorrow.

PN128      

MS BURKE:  Notices are one thing, your Honour;  the submissions might take a little more time.

PN129      

JUSTICE ROSS:  Well, you don't know, because you don't know what objections will be filed and you're given two days to do it anyway.  None of the material you have to file by this Friday affects any of that because all that will be in by Friday.

PN130      

MS BURKE:  I understand.

PN131      

JUSTICE ROSS:  So - and you know the basis of the objection because you've had the discussions with the employers.

PN132      

MS BURKE:  We've had some discussions with the employers.

PN133      

JUSTICE ROSS:  Well, they'll file their full objection on the Wednesday of next week.  Then you'll have two days to put in your reply.  Look, in the normal course, this would be dealt with in the running.  So it's just I don't want to take up the time of five bench members and every other party on what the SDA is foreshadowing might be an extensive argument.  So I'd rather get it all in writing.

PN134      

MS BURKE:  I'd be happy for it to be dealt with in the running, given that the running won't happen until the end of September.  It's just that the material that we have been provided with in respect of the Rose and Oldman reports reached me yesterday.

PN135      

JUSTICE ROSS:  No, we can't deal with it at the end of September because then if you're provided with material pursuant to the notices to produce, you'll want an opportunity to review that before you cross-examine.  So it's being deal with on the 8th for that reason, so you can deal with it early.

PN136      

MS BURKE:  Can I just mention one more thing, and that is the reply expert material is due on 16 September - - -

PN137      

JUSTICE ROSS:  Yes.

PN138      

MS BURKE:  - - and if necessary there may be need to seek further production.  I don't say anything other than just to note that.

PN139      

JUSTICE ROSS:  Well, there might be but that's - you can file a notice to produce once you get that material.

PN140      

MS BURKE:  Thank you.

PN141      

MR MOORE:  Can I just clarify one matter, your Honour?  Under your Honour's proposal the notices to produce would be filed by midday tomorrow.

PN142      

JUSTICE ROSS:  Yes.

PN143      

MR MOORE:  The submissions which the unions are to file;  is it intended that they be filed with that?

PN144      

JUSTICE ROSS:  No, no.

PN145      

MR MOORE:  In two days thereafter, is that what your Honour said?

PN146      

JUSTICE ROSS:  No, no.  You file your application for the notices to produce - - -

PN147      

MR MOORE:  Yes.

PN148      

JUSTICE ROSS:  - - by 12 noon tomorrow.

PN149      

MR MOORE:  Yes.

PN150      

JUSTICE ROSS:  If there's an objection to the notices to produce, the employers are to file that by 4 pm next Wednesday and then you are to file a reply to any objection by 4 pm on the Friday.

PN151      

MR MOORE:  I understand, your Honour.

PN152      

JUSTICE ROSS:  SO you don't have to file any submissions until you see whether there's an objection to your notice to produce, otherwise it will be assumed that it will be complied with and if you have the notices returnable, on the Tuesday the 8th.

PN153      

MR MOORE:  Yes, I understand that.  By way of background I should tell you, your Honour, that we have had constructive dialogue, as your Honour encouraged, with the employer parties and documents have been produced in binders.  The task which remains is to really - from our perspective - to crystallise exactly what hasn't been given - - -

PN154      

JUSTICE ROSS:  Yes.

PN155      

MR MOORE:  - - and to put that in a notice to produce.  Now, the documents that have been given, off the top of my head, I think go to six volumes.  I haven't looked at them.  We'd seek - I understand that the obligation is merely to file a notice to produce.  It might take a little bit more time than midday tomorrow to identify what it is we want from, for example - - -

PN156      

JUSTICE ROSS:  Well, but haven't the employers told you what they haven't produced that you want?

PN157      

MR MOORE:  It's not quite so clear.  There's just correspondence going between my client and a number of parties and it's not quite as crystallised as that, as I understand it, your Honour.  Excuse me, your Honour.  NO, they haven't identified what has been produced.  We've got, as I'm instructed - we've been provided with a wad of documents which needs to be reviewed, which is in part underway.  I say that to be entirely candid with you but we haven't been able to crystallise what it is that we've got and what it is that we're missing.

PN158      

JUSTICE ROSS:  Okay.  I'd rather apprehended from the earlier discussion that the objection was only in relation to a particular species of document over which legal professional privilege was being claimed.

PN159      

MR MOORE:  I understand in the case of one employer it's been spelt out in a reasonably precise way.

PN160      

JUSTICE ROSS:  That's not the case with others?

PN161      

MR MOORE:  That's right.  I think one employer has said, "Here is a bundle of documents.  We're giving you documents in these categories but we're not giving you documents in categories X and Y because of LPP."

PN162      

JUSTICE ROSS:  All right.

PN163      

MR MOORE:  So there's a little bit more - - -

PN164      

JUSTICE ROSS:  All right.  Are you in the same position, Ms Burke?

PN165      

MS BURKE:  Yes.

PN166      

JUSTICE ROSS:  Right.

PN167      

MR MOORE:  Yes, I'm reminded that actually this is something of a moving feast and this morning one of the employer parties provided some further documents today so it is - we're doing our best.  It just takes a bit more time, I'd submit, your Honour, to spell out with clarity in a list what we say we're entitled to from each employer.

PN168      

JUSTICE ROSS:  Why wouldn't you just spell out exactly what you've already requested and then the answer can be, "We've provided this material."

PN169      

MR MOORE:  Yes.

PN170      

JUSTICE ROSS:  Why don't you do it that way?

PN171      

MR MOORE:  Well, that's effectively - reverse-doing it.

PN172      

JUSTICE ROSS:  Well, what's wrong with that?

PN173      

MR MOORE:  Well, I don't see any particular problem with that.  The employers will come along and say - - -

PN174      

JUSTICE ROSS:  Say what?

PN175      

MR MOORE:  - - "We've given you X, Y and Z."

PN176      

JUSTICE ROSS:  That's fine.  They can do that when they file their material.  They can identify - that insures that you're not disadvantaged by late material coming to you.  As to whether it meets it, you just file your complete notice to produce - everything that you have already sought from the employers - - -

PN177      

MR MOORE:  Yes.

PN178      

JUSTICE ROSS:  - - in relation to their experts.  When they file their reply submission, they'll identify what they've given you by reference to the particulars on your notice to produce.

PN179      

MR MOORE:  I think that would overcome my difficulty.

PN180      

JUSTICE ROSS:  Yes, well, is there any reason that can't be done?

PN181      

MR MOORE:  No.

PN182      

JUSTICE ROSS:  All right.

PN183      

MR MOORE:  Not from my view, anyway.

PN184      

JUSTICE ROSS:  Ms Burke?

PN185      

MS BURKE:  NO, there is no difficulty with that process.  I'm aware I'm seeking an indulgence but is it possible to ask for the union's response to the objections to be filed 9 am on Monday rather than 4 pm on Friday?  Travelling the - getting our expert reports ready for filing along with our outlines by 4 pm on the 4th is already taking up a considerable amount of time.  We'd just like to be able to put something together that's been considered.

PN186      

JUSTICE ROSS:  All right.

PN187      

MS BURKE:  Thank you.

PN188      

JUSTICE ROSS:  Anything from the employers?  Who filed expert reports?

PN189      

MR PARKES:  No, your Honour.

PN190      

JUSTICE ROSS:  Okay.  Well, subject to the amendment that Ms Burke sought being made, I'll incorporate what I outlined earlier in the form of directions that will go out later today.  There is a further amendment that I want to foreshadow in relation to the revised directions.  Can I take you to the revised directions, which were - bear with me for a moment - which were issued on 7 August?  Paragraph 8 of those directions deals with the filing of objections to any expert evidence filed.  Those objections were to be filed by Tuesday, 8 September.  However, when you look at the directions in totality, that would only provide the employer parties with effectively two working days, the Monday and the Tuesday, because the - I think the union expert evidence isn't to be filed until 4 pm on 4 September.

PN191      

So I'd amend that date.  So any objections to any of the expert evidence to be filed by 4 pm Tuesday 15 September and I would have a further amendment that rather than a short submission in support of the position put, it should be a full written submission.  So the parties are on notice about in-full the nature of the objection.  Those were the general matters I wanted to raise.

PN192      

I want to perhaps go to the SDA's correspondence, because there are a number of aspects of it which really aren't the subject of this mention.  In relation to paragraph 4(c), I don't really - I suppose this was based on the proposition that we were going to deal with all the expert evidence in those last four days.  We're only talking here about the employer expert evidence.

PN193      

MR MOORE:  Well, I suppose the issue was open in the SDA's mind as to what witnesses would be heard in that week if the time is available.  But if it's clear that we're dealing with the employer witnesses, well, that's a matter for the employers themselves.

PN194      

JUSTICE ROSS:  Yes, that's exactly right.

PN195      

MR MOORE:  Yes.

PN196      

JUSTICE ROSS:  I mean, it was dealt with in the earlier statement.  It was made clear that we deal with the employer experts first.

PN197      

MR MOORE:  Yes.

PN198      

JUSTICE ROSS:  I think one of the reasons for that is there is an issue about the availability of one of their experts later.

PN199      

MR MOORE:  Yes.

PN200      

JUSTICE ROSS:  So we'll certainly endeavour to deal with that.

PN201      

MR MOORE:  I think the other thinking was, your Honour, that there had been some mooting - at least internally - about the idea that there might be some utility in some of the witnesses being grouped together where they're giving evidence on similar topics without departing too much from the notion that it's employers first.  But - so for example, by way of illustration, there may have been some utility in Professor Lewis giving evidence, followed by Professors Quiggin and Ballen.  That might assist the tribunal.  But if that course is not to be adopted - - -

PN202      

JUSTICE ROSS:  No, no, I think that course is still open but it will in part depend on how much time is available.

PN203      

MR MOORE:  Yes.

PN204      

JUSTICE ROSS:  It will also depend on the availability of the employer experts during that time period.

PN205      

MR MOORE:  Yes.

PN206      

JUSTICE ROSS:  I'd encourage the parties to have further discussions about the grouping of experts that you've identified.

PN207      

MR MOORE:  Yes.

PN208      

JUSTICE ROSS:  It may be that we can accommodate some of that during that week, if they're all available and - it's just that I want to make sure we use that week.

PN209      

MR MOORE:  I understand.

PN210      

JUSTICE ROSS:  In relation to - the SDA identifies a number of other matters which - if I can take you to paragraph 10, I don't understand the point you make in the fourth line:  "But right reserved in previous submissions."

PN211      

MR MOORE:  The point there is that in the outline of expert evidence filed by my client there was there set out a list of the experts to be called and information and outline of the evidence it was proposed that they give.  But the outline explicitly noted that of course there might be more experts insofar as there is a need for responsive evidence to the evidence that the employers put on.  We are obviously not in a position to finally with certainty say, "Here are all the experts we're going to call", until we see their evidence, bearing in mind particularly the very scant nature of the outlines provided by the employers.

PN212      

There was an explicit statement in our outline - - -

PN213      

JUSTICE ROSS:  So really - yes.  I don't think it matters so much what the explicit statement was.  It's really the proposition that you're seeking to file this material in response to the material that's been filed by the employer experts.

PN214      

MR MOORE:  That's right.

PN215      

JUSTICE ROSS:  Yes, all right.

PN216      

MR MOORE:  And the point there in paras (a), (b) and (c), we didn't want to be entirely open with the Commission and the parties to indicate, well, "Here's three other named persons who it's proposed to call evidence from that we'd not explicitly previously given notice of."

PN217      

JUSTICE ROSS:  All right.  Ultimately, that issue of the calling of expert evidence that you didn't previously explicitly give notice of can be dealt with if there's an objection taken to it.

PN218      

MR MOORE:  Indeed.

PN219      

JUSTICE ROSS:  In relation to Mr Armstrong, I'm not proposing to deal with that now.  I'd make two observations about it.  The first is that I'd encourage the parties in the retail group to confer and submit a list of draft directions about how the various objections might be dealt with and timeline and something that suits the convenience of the parties in that regard.

PN220      

I would have thought � I mean you've put the Pharmacy Guild on notice, but you can simply take an objection to the statement of Mr Armstrong at the appropriate time.

PN221      

MR MOORE:  We can.  The difficulty that we sought to elucidate though, your Honour, is that if the objection fails and his evidence is received, the position of my client might well be that because his evidence is in substance the nature of expert evidence, we might want an expert ‑ ‑ ‑

PN222      

JUSTICE ROSS:  Is he expressing an opinion?

PN223      

MR MOORE:  Indeed, absolutely.

PN224      

JUSTICE ROSS:  If he's expressing an opinion, then the evidence will be struck out if it's sought to be tendered as lay evidence.

PN225      

MR MOORE:  All right, thank you for that indication.

PN226      

JUSTICE ROSS:  I mean, that's what we said right at the beginning.

PN227      

MR MOORE:  Yes.

PN228      

JUSTICE ROSS:  That if it's opinion evidence, submission evidence or if it's hearsay, then the indication was the Commission will be taking a strict view about that and that's the risk the Pharmacy Guild takes.  Having said all that, I've not look at Mr Armstrong's statement, so I don't know.  I'd certainly encourage you to look at it, have the discussion.  It seems to me if it's about regulatory matters, well, those are matters that can be put in submissions.  If it's about the legal framework there's nothing to stop a party putting material along those lines in a submission.

PN229      

MR MOORE:  It's the next step, just to take that example, where there's opining about the consequences of that regulatory finding.

PN230      

JUSTICE ROSS:  That's a different issue.  Yes.

PN231      

MR MOORE:  Yes.  I understand.

PN232      

JUSTICE ROSS:  Or about how it might operate in practice or ‑ ‑ ‑

PN233      

MR MOORE:  Yes.

PN234      

JUSTICE ROSS:  But certainly a submission about the law isn't something that would normally be in a witness statement unless it's some � or a foreign law, but that's not the case here.

PN235      

MR MOORE:  No.  The concern really - I understand what your Honour says and the concern was that our expert evidence is due in next Friday and we're very troubled about what, to our view, appears to be clearly an objectionable witness statement or affidavit proposed to be filed that, you know, in the event that it's received, we'll feel prejudiced in that we won't have an opportunity to properly consider that and respond to it via expert evidence.

PN236      

JUSTICE ROSS:  I'd encourage you to have discussions with Ms Wellard, or for your instructors to have it, and to work out how we're going to deal with it, at least the process.

PN237      

MR MOORE:  Yes, your Honour.

PN238      

JUSTICE ROSS:  Okay.

PN239      

MR MOORE:  Can I deal with one other matter your Honour raised?  Your Honour mentioned in passing that to encourage the parties in the retail group to exchange proposals for the further programming of the retail group and that's a matter to which we advert at paragraph 16.  If it assists, I can put on the record now some suggestions for dates for each of the steps in paras (a) through to (d) there, which have been undertaken in respect of the hospitality group.

PN240      

JUSTICE ROSS:  My preference really would be � because none of the retailers are here.

PN241      

MR MOORE:  I see.  I see.  I understand.

PN242      

JUSTICE ROSS:  Yes, I think ‑ ‑ ‑

PN243      

MR MOORE:  I didn't appreciate that, your Honour.

PN244      

JUSTICE ROSS:  No.  I think it's probably best ‑ ‑ ‑

PN245      

MR MOORE:  We'll write to them.

PN246      

JUSTICE ROSS:  Yes.

PN247      

MR MOORE:  Yes.

PN248      

JUSTICE ROSS:  If you deal with it in correspondence with all of the interests � when I say "none of them are here", well, the Pharmacy Guild has an interest, but the other parties ‑ ‑ ‑

PN249      

MR MOORE:  I think the AIG might be here, too, but, your Honour.  I'm happy to deal with it by correspondence.

PN250      

JUSTICE ROSS:  Yes.  I'm conscious also that when I set down the purpose of the mention I didn't identify that, so I think it's best to see if you can reach an agreement around dates and a program and then submit that and we won't need to deal with it further.

PN251      

MR MOORE:  We will do that.  Your Honour, there is one matter that flows out of that in terms of the dates that might, for example, be agreed between the retail group parties to deal with the filing of notices to produce on lay retail evidence a hearing of those matters and objections to that evidence.  Those steps, I would suggest at least some of those steps, will probably need to be dealt with in the period of September, including ‑ ‑ ‑

PN252      

JUSTICE ROSS:  Sure.

PN253      

MR MOORE:  And that might affect the Commission's timetable for the hearing of the hospitality ‑ ‑ ‑

PN254      

JUSTICE ROSS:  No, it won't.  We'll deal with it out of session.  Yes.  We've already dealt with the � part of the Full Bench has already dealt with the notices to produce in relation to the lay hospitality evidence, and you're aware of that decision.

PN255      

MR MOORE:  Yes.

PN256      

JUSTICE ROSS:  All right.

PN257      

MR MOORE:  I'm aware of the orders that were made.

PN258      

JUSTICE ROSS:  Yes.

PN259      

MR MOORE:  I don't know if any reasons for decision are published.

PN260      

JUSTICE ROSS:  I don't know either.

PN261      

MR MOORE:  No.

PN262      

JUSTICE ROSS:  Can I raise two other general matters that come up in the United Voice submissions?  They come up at paragraphs 4 and 5 and I just wanted to indicate a view in relation to that.  Firstly, it's said at paragraph 4 that it's assumed there be no duplication of cross‑examination and that's my understanding as well.  Does anyone have any issues or questions with that, that is, if a witness is asked the question and answers it by a party, they're not going to be subject to the same cross‑examination twice?  Does everyone understand that?

PN263      

I would have assumed that the employer parties would have had a discussion amongst themselves prior to cross‑examination, as would the union parties, particularly in relation to the expert evidence, and have sorted out the lines they were going to take so that there's not duplication.  But if anyone strays off that, either the Commission will pull them up or a party will take objection to it.

PN264      

The second point that's raised is that the statements filed stand as the evidence‑in‑chief of the witnesses, absent leave being granted to ask questions and that's also my understanding.  So don't think you're going to get your witness to elaborate on what they've already said.  The statement stands as the evidence‑in‑chief and that applies to both the employer and the union lay witnesses.  Any questions about that?

PN265      

SPEAKER:  No, your Honour.

PN266      

JUSTICE ROSS:  No?

PN267      

SPEAKER:  No, your Honour.

PN268      

JUSTICE ROSS:  All right.  Can I go then to the schedule issue?  It does seem to me that if you look at the material filed, leave aside the location of the hearing in the third week for the moment, whether that's Melbourne or Sydney, we'll see how we go and make a decision about that.  That in part depends on which experts might be available to be called in that period.  If you look at the Meridian response and the material filed by Restaurant and Catering Industrial and we use that as the starting point, if you then look at what United Voice says about the time period that is required in relation to some of the estimates, rather, as to the cross‑examination of some of the witnesses to be called by the employers and you also look at the request by Clubs Industrial for the scheduling of their witnesses, and I think two of United Voice's witnesses to be on particular days, it does seem to me that subject to anything that either Restaurant and Catering or Ms Wellard on behalf of the AHA and the Accommodation Association which to say, but is there any reason why the request by Clubs Industrial and the estimates provided by United Voice and their proposal can't be accommodated within what you're proposing?

PN269      

MS WELLARD:  Your Honour, I'm just trying to understand exactly what that is.  The Clubs Australia Industrial proposal, as I understand it, was to have all of their witnesses on 10 September, which we've accommodated.

PN270      

JUSTICE ROSS:  Yes.  And also to have United Voice's witnesses interposed.

PN271      

MS WELLARD:  Your Honour, I, from my discussions with Registered Clubs, didn't appreciate that.  If it is the case that the union club's witnesses are to be dealt with on that day, we have no issue with that.

PN272      

MR WARREN:  If that could be so, your Honour, we would appreciate it.  It would suit our situation very well.

PN273      

JUSTICE ROSS:  Yes.  I'm not sure of that.  Can I take you to United Voice's submission and to the draft schedule attached?  Do you see there on Thursday the 16th, they've put in the estimate required of the witnesses and it's unlikely that on those estimates we would be able to deal with the two United Voice witnesses that are of relevance for the club's matter.  So what's proposed is that they would be dealt with at the commencement of the proceedings the following date.  Does that suit you, Mr Warren?

PN274      

MR WARREN:  Your Honour, it would suit us better, can I say, if the United Voice club's witnesses came on the Friday afternoon than on the Thursday?  We have fundamental problems with the 16th and that's why we're pursuing the club's evidence to be called on the 10th.

PN275      

JUSTICE ROSS:  Yes.  No, no.  The club's evidence would be called on the 10th, but do you see ‑ ‑ ‑

PN276      

MR WARREN:  And then the United Voice - I'm sorry, your Honour.

PN277      

JUSTICE ROSS:  You see, United Voice's evidence would be on Friday, the 11th.

PN278      

MR WARREN:  That would be fine.

PN279      

MS WELLARD:  Your Honour, if I could add to that?

PN280      

JUSTICE ROSS:  Yes.

PN281      

MS WELLARD:  Yes, your Honour, Mr Tindley, who represents the Australian Retailers Association has, subsequent to my filing of this document, let us know that Dr Shaun Sands is actually not available on Friday, the 11th, at 9.30 where we had him pencilled in and I think he has made other arrangements or had other discussions with the SDA about that.  So that time in our proposal is now free and could be used for the club's lay witnesses.

PN282      

JUSTICE ROSS:  All right.

PN283      

MS BURKE:  Can I mention � sorry, your Honour � just one more matter in relation to the club's evidence?  On the timetable by United Voice, one club's witness would be heard at 3.45 on Wednesday, the 9th.  So there's just that evidence starting that Wednesday afternoon, continuing through Thursday and then finishing up early Friday morning or Friday morning.

PN284      

JUSTICE ROSS:  Yes.

PN285      

MR WARREN:  We would prefer it all the one day, your Honour, but if that's the way it is, that's the way it is.

PN286      

JUSTICE ROSS:  It's just ‑ ‑ ‑

PN287      

MR WARREN:  Surely we can do all the club's evidence on the Thursday.

PN288      

JUSTICE ROSS:  Yes.  No, no, I appreciate that, Mr Warren, but I think the difficulty is that on the estimate as to how long it's likely to take ‑ ‑ ‑

PN289      

MR WARREN:  You're going to run out of time on Wednesday.

PN290      

JUSTICE ROSS:  Yes.  We will run out of time on Thursday.  Look, the alternative option for the parties ‑ ‑ ‑

PN291      

MR WARREN:  If that's the case ‑ ‑ ‑

PN292      

JUSTICE ROSS:  The alternative option for the parties to consider is to commence at 9 am on the Thursday and just deal with all the club's evidence that day.

PN293      

MR WARREN:  That would obviously suit us, your Honour.

PN294      

MS BURKE:  It's a very long day, your Honour, but if it's the ‑ ‑ ‑

PN295      

JUSTICE ROSS:  I don't think it will be the first or the last.

PN296      

MS BURKE:  If it's the only way that that would work then we accept the necessity of that.  If, however, it is still possible to work as proposed in this timetable, then that would be our preference.

PN297      

MR WARREN:  I've said what I've said.

PN298      

JUSTICE ROSS:  Yes, okay.  Ms Wellard and Mr Parkes, I'm just looking to � how do we now finalise the draft schedule?  There are two things involved here.  One is for you to seek to accommodate what we've just discuss with Clubs Victoria and you also have the United Voice's proposals in relation to the balance of the evidence.  So there's that broad scheduling issue.  Secondly, there's the identification of which witnesses will be heard at which times.

PN299      

You've got the estimate in relation to a number of those witnesses where the estimate departs from the standard that's been given.  The question now becomes:  how are we going to finalise the schedule?

PN300      

MR WARREN:  With respect to clubs, your Honour, we could certainly indicate, hopefully early next week, which people will be available at what time slots.  It's just a question of going back and sorting out who's best at what time.

PN301      

JUSTICE ROSS:  Sure.  I think the issue is really not so much clubs ‑ ‑ ‑

PN302      

MR WARREN:  I'm sorry, your Honour.

PN303      

JUSTICE ROSS:  It's the other parties, the other employer parties in particular, Ms Wellard and Mr Parkes.

PN304      

MR WARREN:  Your Honour ‑ ‑ ‑

PN305      

JUSTICE ROSS:  How do you propose I make a schedule?

PN306      

MR PARKES:  I am confident, your Honour, we can sort this out.  Our main constraints are we have some operators that close their business on Mondays, so they have a real desire that they're slotted in on that date of 14 September.  So we need to try and accommodate their availability and also we have some constraints with Mr Hart and that's why we propose the afternoon of 11 September, but other than that, we can I think push back some of the other Restaurant and Catering Industrial witnesses in the afternoon.  So from my side, I am sure I think we can accommodate a schedule within a short period of time.

PN307      

MS WELLARD:  Your Honour, I'm happy to undertake to continue the discussions with the parties and provide an updated schedule following those discussions, if we work on the basis that each of the employer witnesses will be required for about 45 minutes, other than those that United Voice has identified will be required for about an hour, and that the union witnesses are roughly 20 minutes, unless others have some specific requirements for a longer period.

PN308      

I can indicate now that there are at least three of the union witnesses that the AHA won't require for cross‑examination, so that will reduce that time a little.  A couple of others may fall away once the objections are dealt with, but we can't make a call on that right now.  But I think having regard to the fact that it is now just - we're sure that it's just the employer experts that are being dealt with in this time frame, I'm confident that it will all fit and I'm happy to circulate a proposal.

PN309      

JUSTICE ROSS:  Are you content to leave it on that basis, Ms Burke, that ‑ ‑ ‑

PN310      

MS BURKE:  Certainly the sequence of the employer witnesses is a matter for them really.

PN311      

JUSTICE ROSS:  Yes.  Can I leave it on the basis that Ms Wellard will coordinate the discussions with the SDA and Restaurant and Catering, having regard to what's been said about Clubs Victoria and doing whatever we can do to accommodate their issue.  If you can work to filing a � it may not go to the expert evidence at this point because that might be more challenging, but it would be of assistance if we can wrap up a draft schedule by the middle of next week because then everyone will know what the order is and they'll know when they can come in and the particular witnesses they've got an interest in.

PN312      

MS BURKE:  I'd be hoping we could do it earlier than that, your Honour.  Can I just mention one thing?  In the United Voice proposed schedule it has the employer witnesses first and then the union witnesses within Sydney and then the same pattern in Melbourne.  So in Melbourne, they're employer witnesses first, then union lay witnesses.  I haven't heard anyone object to that course.  That's certainly my preference.  If's that's something that anybody has a strong view about, it will be convenient to hear that now.

PN313      

JUSTICE ROSS:  Sure.  Look, it doesn't strike me as something that would give rise to a problem because it's not as if you've got conflicting evidence on a factual dispute.  So the order doesn't � the evidence is sort of they're passing like ships in the night.  They're about different issues really.  So on that basis I frankly don't really see why it matters much.  I think what is important is that we try and accommodate the relevant parties, so if they want their evidence dealt with largely in a block, it might be by location, but at least in a block, and the point that Ms Parkes raises about the Monday being a preference for them.

PN314      

MS PARKES:  Certainly.

PN315      

JUSTICE ROSS:  The same, Mr Warren's point.  Subject to all of those being accommodated, I think that may also mean that it makes sense to interpose some of the union evidence when we're in a particular location and also if we're organising a video‑link to Queensland ‑ ‑ ‑

PN316      

MS BURKE:  Yes.

PN317      

JUSTICE ROSS:  And there is a slot available and there's only one union witness in Queensland, or a couple, then we may as well deal with that at the same time.

PN318      

MS BURKE:  Yes.

PN319      

JUSTICE ROSS:  Just bearing in mind some of my past experiences with video‑links, I'd rather have as few of them as possible.

PN320      

MS BURKE:  We're in furious agreement about that, your Honour, and that's why we've indicated that it's our preference for witnesses to give evidence in person where possible and we've made arrangements for witnesses to travel.  I think Friday afternoon will be challenging for perhaps all of the lay witnesses, given their occupations.  If there are to be any administrative matters dealt with, perhaps they could be dealt with on Friday afternoon to take that into account.  I'm speaking on my feet without conferring with anyone else about this but maybe even the objections to expert evidence.

PN321      

JUSTICE ROSS:  I'm content if in the initial stages there be a discussion with Ms Wellard and Mr Parkes, try to organise a schedule and then perhaps broaden the discussions to the other parties and then file what you've come up with.  If there's not agreement on every point then at least identify where the issue remains, but I mean from our perspective we're not wedded to a particular schedule or order.  The one that was put up was simply to try and force the issue.

PN322      

MS BURKE:  It was very helpful.

PN323      

JUSTICE ROSS:  So I would much rather the matter be sorted out by discussion between the respective representatives and you can accommodate your respective interests that way.

PN324      

MS BURKE:  Thank you.  On the United Voice schedule, and I don't want to leap ahead, but the lay evidence will be finished on Thursday rather than the AHA, RCI schedule which has us finishing Tuesday afternoon.  To the extent that there will be expert witnesses heard in that week, is there - I'm assuming we should revisit that once the parties have the discussions that you've indicated just now.

PN325      

JUSTICE ROSS:  Well I think there are probably a couple of antecedent steps.  One is come up with a position about the lay evidence and what does the schedule look like for the lay evidence, then you know how many days are left and then the employers in the meantime can make some inquiries about what witnesses of theirs might be available.  I'd also encourage the discussion that was raised in the interchange with Mr Moore, that there might be some concurrent evidence that can be conveniently dealt with in that time period as well.  So whilst it's intended to be employer expert evidence, if there was concurrent that could be accommodated and the parties are agreeable and the witnesses are available, then we'd deal with that as well.

PN326      

MS BURKE:  Thank you.

PN327      

JUSTICE ROSS:  But let's see how we go.  Are you content to leave it on that basis, Ms Wellard?

PN328      

MS WELLARD:  Yes, your Honour.  I do have a couple of questions and I suspect this is not going to go down well in relation to video link and location.

PN329      

JUSTICE ROSS:  Yes.

PN330      

MS WELLARD:  At least half of the AHA witnesses are in remote locations.

PN331      

JUSTICE ROSS:  Yes.

PN332      

MS WELLARD:  In the Northern Territory, Lightening Ridge, Orange, Rockhampton, Cairns.  Is there any other location at which they might be able to attend to give their evidence as opposed to coming to the capital city?

PN333      

JUSTICE ROSS:  If you can provide the list to my Associate and we'll endeavour to find one.

PN334      

MS WELLARD:  Thank you, your Honour.

PN335      

JUSTICE ROSS:  The challenge is often there will be a regional court facility but that's usually under the control of a state court system, and trying to get access to that is usually challenging.  We'll certainly see what we can do.

PN336      

MS WELLARD:  Thank you, your Honour.  Even if we could get Newcastle or Wollongong or places like that, that might be helpful but I'm not sure.

PN337      

JUSTICE ROSS:  Newcastle or Wollongong should be - they should be fine.  If you can identify - if you just send it to my Associate, I say this to any party who wants a video link outside of a capital city, to let us know as soon as possible and we'll make some inquiries.

PN338      

MS WELLARD:  Thank you, your Honour.

PN339      

JUSTICE ROSS:  Anything else?

PN340      

MR MOORE:  Your Honour, just in relation to the antecedent steps that you referred to about expert evidence.  It sounds, with respect, a sensible course as your Honour's proposing for the parties involved in the hospitality lay evidence to sort out as best they can the timetable, and to see in effect what time is left.  Then the next step would be to ascertain the availability of employer witnesses, having regard to the possibility of union witnesses giving evidence either concurrently or consecutively.

PN341      

There is a further issue about that which we raise in the correspondence.  Your Honour asked for a consideration, I think, in the directions for how long will experts be required for cross-examination, and that obviously is a significant ingredient in scheduling the expert witnesses. For the reasons we've set out in the correspondence, it's really in my view premature.  We're not in a position now to give the Commission or the parties a meaningful estimate about that because our evidence isn't it, nor is the reply evidence in.

PN342      

I just want to foreshadow that, your Honour, that one can develop, I suppose, working assumptions as to how long a witness might be required but if a working assumption needs to be developed some time before the evidence is in, that is the reply evidence and the union evidence, or at least the reply evidence, those working assumptions will have to err, in my view, on the conservative side.  Because the position won't be known as to how long a reliable estimate as to how long employer expert X is going to be required, won't be able to be determined until our evidence is in, the reply evidence is in, the request for production is resolved.  I just don't want to complicate things unduly but it is a constraint on determining the timing and scheduling of expert witnesses.

PN343      

We've suggested in our letter that in light of those considerations, the scheduling of experts can't occur reliably until after - - -

PN344      

JUSTICE ROSS:  No, you've actually said that we should abandon any notion of dealing with expert evidence in this three week period.

PN345      

MR MOORE:  Yes, and I understand that your Honour's - - -

PN346      

JUSTICE ROSS:  Yes, and I've said no, we're not doing that.

PN347      

MR MOORE:  I'm not I'm not re-opening that.

PN348      

JUSTICE ROSS:  What I want to make perfectly clear to you is that we are going to use this three weeks.

PN349      

MR MOORE:  Yes, I understand that, your Honour.

PN350      

JUSTICE ROSS:  So there will be some.  If there's capacity there will be some expert evidence dealt with.  Now what is it and how long it takes sure, I don't - we'll get an estimate of how long the cross-examination might take and we'll deal with it in the running as best we can.

PN351      

MR MOORE:  Indeed, your Honour.  We will provide the best estimate we can but it will have to be a conservative estimate if that estimate needs to be provided sooner than later.

PN352      

JUSTICE ROSS:  Sure, and I don't think you should assume just because you're provide an estimate, if it goes beyond the time that we have available that we won't schedule the witness.

PN353      

MR MOORE:  No, I understand that, your Honour.

PN354      

JUSTICE ROSS:  Yes, so we'll have a look at the evidence and make our own view about how long it might take, having regard to what's put by the parties.

PN355      

MR MOORE:  Yes, your Honour.

PN356      

JUSTICE ROSS:  I think the first step is let's sort out the lay evidence.

PN357      

MR MOORE:  Yes, your Honour.

PN358      

JUSTICE ROSS:  See how much time is available.  The employer parties can talk to their experts, see who's available.  If there's a prospect of concurrent evidence then that can be discussed as well, and we'll just re-assess the position as we go along.  As we will with the lay evidence.  If it turns out that the estimates are such that we're finishing early each day well I'll be revisiting the schedule to fill in the gaps.  Anything else from Sydney?

PN359      

MS CRUDEN:  Your Honour - - -

PN360      

JUSTICE ROSS:  yes.

PN361      

MS CRUDEN:  - - - I did have one point in relation to the submission filed on behalf of the Australian Industry Group at item 3.

PN362      

JUSTICE ROSS:  Yes.

PN363      

MS CRUDEN:  Which is just some clarification sought as to whether or not lay evidence in the hospitality group is or is not intended to be or will be considered by the Full Bench for the purposes of determining claims concerning modern awards in the retail group.

PN364      

JUSTICE ROSS:  I must admit my assumption would be no, but I don't want to speak on behalf of the Bench.  That was the whole purpose of identifying common evidence.

PN365      

MS CRUDEN:  Yes, your Honour.

PN366      

JUSTICE ROSS:  So is any party proposing anything to the alternate?  That is, is anyone saying they're going to be relying on the lay hospitality evidence in the retail case, or the retail lay evidence in the hospitality case?  If you are, you should say whether you are now to put the other parties on notice.

PN367      

Can I ask, because the retail employers are not all here, Ms Cruden can you undertake to raise that issue with them?

PN368      

MS CRUDEN:  Yes, your Honour.

PN369      

JUSTICE ROSS:  I take it from the silence that we assume - - -

PN370      

MR N TINDLEY:  Your Honour, for the purpose of the transcript, TINDLEY, initial N, on behalf of the NRA, ARA and MGA.  I can certainly say we're not intending to rely on lay hospitality evidence in the retail case.

PN371      

JUSTICE ROSS:  Do I take it that the same position is taken by every other party, that the lay evidence will be confined to the particular industry grouping in which it's led?

PN372      

MR TINDLEY:  From our point of view, yes.

PN373      

MS WELLARD:  Your Honour, there might be some comparison, for example, about what a worker earns and what penalty rate applies across different industries that are, I suspect, largely made in submissions based on the award itself, rather than drawing from the evidence.  So I think the answer is no, at this point.  I think it's very likely to be no.  I just haven't seen all of the evidence to say that with 100 per cent certainty yet to know what they're saying but - - -

PN374      

JUSTICE ROSS:  If anyone has a different view then they should raise it at the commencement of the proceedings on Tuesday, 8 September.  That will give you time to think about it but the indications at this stage seem to be that the AI Group's assumption is correct.

PN375      

MS CRUDEN:  Thank you, your Honour.

PN376      

MR MOORE:  Your Honour, on that matter, that's a matter of serious concern to us and we would - the assumption referred to in the correspondence is an assumption which has underpinned the way in which the proceedings have been framed to date.

PN377      

JUSTICE ROSS:  I know, yes.

PN378      

MR MOORE:  The SDA's approach to those proceedings.  Parties have been required to give notice that evidence be relied upon in relation to particular proposed changes and those requirements or giving of such notice have been for a purpose, to alert the other parties how other parties are proposing to run their case.  Any party that is proposing to depart from what they have said would need to give notice well before 8 September, in our respectful view.

PN379      

JUSTICE ROSS:  Look, it's only Tuesday week I think.  The issue wouldn't have been raised but for the fact AI Group's identified it.  We'll deal with it on the 8th.

PN380      

MR MOORE:  Well except if a party wants to change its position from what it's adopted for six months, President, and we have to go along - - -

PN381      

JUSTICE ROSS:  No, no, but you're assuming that they'll be allowed to.

PN382      

MR MOORE:  Yes, your Honour.

PN383      

JUSTICE ROSS:  Let's not get too excited about this issue.  The only thing the Pharmacy Guild said is that they might want to rely on comparative material about wages that they can get from the award anyway.  That's not dealt with in the evidence, so I don't think we need to get too agitated about the suggestion.  From my perspective, the proposition that AI Group's outlined is unexceptional and that was the basis on which the directions were issued.

PN384      

MR MOORE:  Yes, your Honour.

PN385      

JUSTICE ROSS:  If a party wants to depart from that well, they can tell us at the commencement of the proceedings on the 8th and we'll hear them and what anyone else wants to say about it.

PN386      

MR MOORE:  Yes, your Honour.

PN387      

JUSTICE ROSS:  Anything else?

PN388      

MS CRUDEN:  Your Honour, just to clarify, did you still wish for me to undertake to have communications with other parties?

PN389      

JUSTICE ROSS:  No.  No, that's fine because they've been here and they've given an indication.  Thanks, Ms Cruden.

PN390      

MS CRUDEN:  Thank you, your Honour.

PN391      

JUSTICE ROSS:  Nothing further?  We'll issue the directions later today that I outlined earlier and I look forward to the witness schedule if not before the middle of the next week, then by the middle of next week.  Thank you very much, I will adjourn.

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