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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1052413

TRANSCRIPT IN CONFIDENCE

 

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER LEE

 

AM2014/305

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards
(AM2014/305)

 

Melbourne

 

12.34 PM, WEDNESDAY, 23 SEPTEMBER 2015


RESUMED                                                                                             [12.34 PM]

PN1          

VICE PRESIDENT CATANZARITI:  Thank you.  We've read all the material that has come in and what we propose to do is go through each of the objections and see to finalise them all.  If we deal with the simple ones first.  The AiG ones, I think they're all resolved?

PN2          

MR D MACKEN:  Yes, Macken, initial D.  I seek formal permission to appear.  Yes, your Honour, there was one objection ultimately - - -

PN3          

VICE PRESIDENT CATANZARITI:  Mr Deezy?

PN4          

MR MACKEN:  That was Deezy and that has been resolved in terms of the particular objection to production not being pressed, or production not being pressed in respect of Ms Deezy.

PN5          

JUSTICE ROSS:  All right, so for the record all the material requested of the Australian Industry Group witnesses will be produced with the objection noted in relation to Deezy having been resolved.

PN6          

MR MACKEN:  Well, I think subject to private agreement in other respects where production is not being pressed.

PN7          

VICE PRESIDENT CATANZARITI:  Yes, I understand.

PN8          

MR MACKEN:  But that was - - -

PN9          

VICE PRESIDENT CATANZARITI:  Yes, because there's nothing for us - - -

PN10        

MR MACKEN:  That was the visible one and that has been resolved.

PN11        

VICE PRESIDENT CATANZARITI:  Yes, there's nothing for us to do in relation to those.

PN12        

MR MACKEN:  That's correct.

PN13        

VICE PRESIDENT CATANZARITI:  All right, let's move to the next one.

PN14        

MR GOTTING:  Your Honour?

PN15        

VICE PRESIDENT CATANZARITI:  Yes?

PN16        

MR GOTTING:  Your Honour, it's Gotting in Sydney for the Australian Industry Group.  I agree with what Mr Macken has said.  There was two issues though that I wanted to raise and perhaps it may be best dealt with in correspondence between my instructing solicitor and the Commission.  The first issue concerns the timing of compliance with one aspect of the notice to produce.  There is a witness by the name of Mr Flook, F-l-o-o-k.  He is currently overseas and he does not return to Australia until 28 September which is the intended date of compliance.  In those circumstances the Australian Industry Group on his behalf has sought an extension until 4 pm on 2 October to comply with the notice to produce.

PN17        

VICE PRESIDENT CATANZARITI:  There's no problem with that, Mr Macken.  No, there's no problem with that, Mr Gotting.

PN18        

MR GOTTING:  Thank you, your Honour.  The second issue concerns the replication of the material produced on the website of the Commission.  Previously some of the material that has been produced by the Australian Industry Group has been the subject of a confidentiality regime and some of the exhibits have not been placed on the website.  Some of the material that is the subject of the notice to produce for the witnesses called by the Australian Industry Group relate to confidential and commercially sensitive information, and the Australian Industry Group was hoping to put in place a regime where those materials were not put up on the website.

PN19        

VICE PRESIDENT CATANZARITI:  Well, there won't be a problem with that either, Mr Gotting, provided we know which ones are which we'll maintain that.

PN20        

MR GOTTING:  Thank you, your Honour.

PN21        

VICE PRESIDENT CATANZARITI:  Mr Gotting, is there anything further from the AIG?  If there isn't, you can be excused I think.

PN22        

MR GOTTING:  Thank you.  There's nothing further from the Australian Industry Group.

PN23        

VICE PRESIDENT CATANZARITI:  All right.  Thank you.  All right, we'll then move into the next category which is perhaps we'll do the Pharmacy Guild next.  It seems to us that there are a lot of objections which - Mr Macken have you seen how we dealt with the previous objections in relation to financial material?

PN24        

MR MACKEN:  I haven't, your Honour, other than I've been informed in general terms that there was certain requests from United Voice weren't acceded to in respect of an earlier hearing.

PN25        

VICE PRESIDENT CATANZARITI:  And we propose to follow the same process.  So what we need to do then is go through each one and see what is left.  So Craig Byrd, there's a replacement statement for Craig Byrd where the objections have been taken.

PN26        

MR MACKEN:  Yes, I think Mr Byrd's original statement was filed with missing paragraphs.

PN27        

VICE PRESIDENT CATANZARITI:  Missing a lot of paragraphs.

PN28        

MR MACKEN:  Yes.

PN29        

VICE PRESIDENT CATANZARITI:  Well, let's deal with Craig Byrd first.

PN30        

MR MACKEN:  Sorry, your Honour, I've got - - -

PN31        

VICE PRESIDENT CATANZARITI:  I'm just getting my table together.  In relation to Mr Byrd the objections are not going to be allowed, so there won't be any profit or loss statements being provided and that will go right through the materials.

PN32        

MR MACKEN:  Yes, I understand.  So the objections are allowed?

PN33        

VICE PRESIDENT CATANZARITI:  They are allowed, yes.

PN34        

Mr Seck did you understand - Mr Seck is there, isn't he?

PN35        

MR SECK:  Yes, I am here, your Honour.  I think I understood what your Honour says.  So in relation to the objections that we have made, that has been allowed and Mr Byrd is not required to produce the documents requested.

PN36        

VICE PRESIDENT CATANZARITI:  That is right.  They're all financial material.

PN37        

MR SECK:  Indeed.  That's understood, your Honour.  May it please.

PN38        

VICE PRESIDENT CATANZARITI:  Yes, I'm just testing whether Mr Boffo is in a different category.  It seems to be the same category.

PN39        

MR MACKEN:  I suspect that it is.  I suppose there are two issues.  There was a general request which I think your Honour has ruled on in relation to profit and loss statements, that they're out.  There was a subcategory of documents to which objection is taken generally on the grounds of a lack of specificity, which is documents in reliance upon which - - -

PN40        

VICE PRESIDENT CATANZARITI:  Yes, as long as it's specific we'll have a look at it.  Let's go to Mr Boffo.

PN41        

MR MACKEN:  Yes.  Yes so Mr Byrd I think - well, can I clarify this.  In relation to Mr Byrd there is a reference to operational expenses in the body of his witness statement, and there was a request in relation to operation -the documents that might describe the operational expenses.  Obviously they would be transparent from a profit and loss statement which your Honour has ruled on.

PN42        

VICE PRESIDENT CATANZARITI:  Yes, we don't think it will be much use in the way this case is not a capacity to pay case.  We're not going to allow that material, so that will flow right through.

PN43        

MR MACKEN:  Okay.

PN44        

VICE PRESIDENT CATANZARITI:  And we note that in the previous rulings that it appeared that the unions were running these cases on capacity to pay.  Whether a company makes a profit or a loss is not going to be forensically the answer to the penalty rates case.

PN45        

MR MACKEN:  Look, if what your Honour is saying is that there's a lot of evidence in these witness statements that is not materially relevant.

PN46        

VICE PRESIDENT CATANZARITI:  That is so.

PN47        

MR MACKEN:  Then in one sense what your Honour is raising is the extent to which on another occasion certain paragraphs will be legitimately objected to, and I accept that that's a matter that will be dealt with at another time.

PN48        

VICE PRESIDENT CATANZARITI:  Well some of them are quite marginal, but let's look at Mr Boffo's paragraph 14.

PN49        

MR MACKEN:  Mr Boffo's paragraph really raises the same issue, your Honour.  Generally most of the Pharmacy Guild matters sought either the profit and loss statement, and where there were specific references to statements about profitability or otherwise on a day, documents in reliance upon which those statements were made were sought as well.  If your Honour has determined that that class of document is not discoverable or producable then one can quickly work through these.

PN50        

VICE PRESIDENT CATANZARITI:  We're happy with - in relation to if you want to say something about the 70 per cent of the staff - - -

PN51        

MR MACKEN:  Yes.

PN52        

VICE PRESIDENT CATANZARITI:  - - - which are referred to specifically, then that is material that is relevant.

PN53        

MR MACKEN:  Yes.

PN54        

VICE PRESIDENT CATANZARITI:  If it was limited in that way then Mr Seck should get his client to produce that.

PN55        

MR MACKEN:  Yes.

PN56        

VICE PRESIDENT CATANZARITI:  Mr Seck, do you understand the ruling in relation to Mr Boffo?

PN57        

MR SECK:  I think so, your Honour.  So your Honour is probably contemplating a document of the nature of rosters and the like.

PN58        

VICE PRESIDENT CATANZARITI:  Well, it's relevant here because specific reference - it's asserted:

PN59        

The pharmacy only operates with 70 per cent of the required number of staff on Sundays and public holidays.

PN60        

Now at the moment it is a meaningless proposition to us unless we know what that actually means.  So if there is documentation that goes to it then it should be produced.

PN61        

MR SECK:  I understand.  May it please your Honour.

PN62        

VICE PRESIDENT CATANZARITI:  So that's the ruling we make on that one.  All right, we'll then go to Mr Cagney.

PN63        

MR MACKEN:  Mr Cagney probably falls into the same category but - - -

PN64        

VICE PRESIDENT CATANZARITI:  Cagney falls into the same category so nothing further.  Then we go in - and I'm working through the documents that have been filed at the same time so we're looking at each of the detailed submissions.

PN65        

MR MACKEN:  Yes.  Okay, yes your Honour.  Yes.

PN66        

VICE PRESIDENT CATANZARITI:  So we're on?

PN67        

MR MACKEN:  Kim Chong I think is the next one alphabetically.

PN68        

JUSTICE ROSS:  Yes, Kim Chong.  That's paragraph 15.

PN69        

MR MACKEN:  15.

PN70        

VICE PRESIDENT CATANZARITI:  Yes, there's nothing there so we're upholding the objection.

PN71        

MR MACKEN:  Costigan is the next one, your Honour.

PN72        

VICE PRESIDENT CATANZARITI:  Costigan?  Paragraph 17.  Well, in relation to paragraph 17 we would like to see any documentation, the rosters et cetera, Mr Seck, because there's a reference to the bare minimum number of staff required.

PN73        

MR SECK:  May it please your Honour.

PN74        

MR MACKEN:  De Rooy.

PN75        

VICE PRESIDENT CATANZARITI:  I think in relation to paragraph in De Rooy, Mr Macken, he can be cross‑examined in relation to that.

PN76        

MR MACKEN:  If it pleases.

PN77        

VICE PRESIDENT CATANZARITI:  Similarly in relation to paragraph 17 and paragraph 15.  Well, and paragraph 14 of course.

PN78        

MR SEDE:  Sorry, your Honour, paragraph 14?

PN79        

VICE PRESIDENT CATANZARITI:  Paragraph 14, 15 and 17, cross-examination.  We'll then go to L Ahmed.

PN80        

MR SEDE:  That's all the objections, your Honour.

PN81        

VICE PRESIDENT CATANZARITI:  We did allow previously leases to come in.  If you want to see the lease or anything like that.

PN82        

MR MACKEN:  I have made requests for leases along the way, some not pressed, I think one pressed in relation to ARA.  I think an objection there was not so much to production but concerns about confidentiality and the submissions that were made offer assurances - - -

PN83        

VICE PRESIDENT CATANZARITI:  Have you asked for the lese in relation to this one?

PN84        

MR MACKEN:  No, I don't think so.

PN85        

VICE PRESIDENT CATANZARITI:  Do you press for a lease?

PN86        

MR MACKEN:  No.

PN87        

VICE PRESIDENT CATANZARITI:  That being the case there's nothing further in Mr Ahmed's.  We then go to Mr Farrell, paragraphs 7 and 28.  In relation to Mr Farrell, Mr Ahmed we said no - I think my sticker's wrong on this.  Mr Ahmed we've dealt with the lease and there's no other material arising in relation to Mr Ahmed.  Mr Farrell is paragraphs 7 and 28.  That falls within the same category.  We then move to Ms Forbut.  You want material that shows the Webster-Paks have been increased, Mr Macken?

PN88        

MR MACKEN:  Yes, if your Honour pleases.

PN89        

VICE PRESIDENT CATANZARITI:  I think that's fair enough.  Mr Sede?

PN90        

MR SEDE:  As I understood the audit production, your Honour, what was being sought was documents evidencing operating costs and that should - the objection should be upheld on the basis that - - -

PN91        

VICE PRESIDENT CATANZARITI:  Well except on this occasion, Mr Sede, there's a direct assertion the Webster-Paks have actually been increased.  How can that be tested without - if there's no documents, there's no documents and we should see what - you should get instructions to produce the documents.

PN92        

MR SEDE:  I think all that's been sought in relation to Ms Forbut, if your Honour looks at the order for production, your Honour, is not the documents relating to the Webster-Paks but only in relation - - -

PN93        

VICE PRESIDENT CATANZARITI:  I understand that but I asked Mr Macken does he want the material that is the foundation material.  I'll re-ask Mr Macken.  Mr Macken, do you want  material in relation to the Webster-Paks?

PN94        

MR MACKEN:  Yes, your Honour.

PN95        

VICE PRESIDENT CATANZARITI:  He presses for that, Mr Sede.

PN96        

MR SEDE:  Well your Honour on the basis of what your Honour's indicated we will produce that.

PN97        

VICE PRESIDENT CATANZARITI:  Right, well that will be produced then. The Webster-Paks material.  We then go to paragraph 16, I think that falls into the same category, we won't allow any material.  We'll then move to David Heffernan.  The same ruling applies in relation to David Heffernan.  Keen, is the same.  Then we go to Cortis.  As I understand, Mr Macken, your focus is on paragraphs 20 and 26 now isn't it, based on your submissions?

PN98        

MR MACKEN:  Yes, sorry.  The reference was to the operating cost to which the witness deposes in 20 to 26, so we - - -

PN99        

VICE PRESIDENT CATANZARITI:  Yes, that's the two we're focusing on.

PN100      

MR MACKEN:  We wanted transparency in relation - - -

PN101      

VICE PRESIDENT CATANZARITI:  There's material that we think should be produced which is quite specific.

PN102      

MR MACKEN:  Yes, your Honour.

PN103      

VICE PRESIDENT CATANZARITI:  The specific material will be statements in relation to:

PN104      

In the last 12 months we've been forced to cut advertising costs by a quarter.

PN105      

MR MACKEN:  Yes.

PN106      

VICE PRESIDENT CATANZARITI:  Documents should be produced.

PN107      

We have also reduced community donations by 50 per cent.

PN108      

Material should be produced.

PN109      

MR MACKEN:  Yes.

PN110      

VICE PRESIDENT CATANZARITI:  The statement:

PN111      

Wages are the biggest operating costs -

PN112      

That being made as a statement, whatever documents or material goes to that.

PN113      

MR MACKEN:  Your Honour pleases.

PN114      

VICE PRESIDENT CATANZARITI:  They're the three matters in relation to Mr Cortis.

PN115      

MR SEDE:  Your Honour, can I just clarify, did your Honour says Ms Cortis has to produce documents reporting operating costs?

PN116      

VICE PRESIDENT CATANZARITI:  No, "wages are the biggest operating costs" is what is the assertion made.  If you're making that assertion, what is the documentary material behind it?

PN117      

MR SEDE:  Right, just merely wages being the operating costs?

PN118      

VICE PRESIDENT CATANZARITI:  No.  There will have to be a document which shows - to make that statement Mr Sede that says "wages are the biggest operating costs", it's got to be related to something.

PN119      

MR SEDE:  Yes.

PN120      

VICE PRESIDENT CATANZARITI:  The witness having made that statement, it's our view that the documentary material that goes to it should be produced.

PN121      

MR SEDE:  May it please.

PN122      

MR MACKEN:  Whatever that might be.

PN123      

VICE PRESIDENT CATANZARITI:  Unless you're withdrawing that sentence.  If you withdraw that sentence then we won't direct you to produce it.  So if you press that in your evidence, Mr Sede, you'll have to produce the material.

PN124      

MR SEDE:  Your Honour, I might have to get instructions on that but we will indicate the positon to SDA and if we do rely upon it we will produce the documents.

PN125      

VICE PRESIDENT CATANZARITI:  Right, that's understood.

PN126      

MR MACKEN:  That's acceptable, your Honour.

PN127      

VICE PRESIDENT CATANZARITI:  Go to Mr Llewellyn.  Nothing with Mr Llewellyn.  Ms Mahoney.  Nothing in relation to Llewellyn(sic).  We then go to - - -

PN128      

MR MACKEN:  Mahoney, your Honour.

PN129      

VICE PRESIDENT CATANZARITI:  There's nothing in Mahoney.

PN130      

MR MACKEN:  The only query in relation to Mahoney, your Honour, based on the indications previously given, in paragraph 25 the witness refers to a particular operating cost and purports to give evidence that they're currently running a low cost operation relevant to rent.

PN131      

DEPUTY PRESIDENT ASBURY:  But doesn't she just give rent as an example of an operating cost?

PN132      

MR MACKEN:  Yes.

PN133      

COMMISSIONER LEE:  It's not really making a specific assertion about rent.

PN134      

MR MACKEN:  I accept that.

PN135      

COMMISSIONER LEE:  As opposed to the previous matter.

PN136      

MR MACKEN:  I accept the distinction.

PN137      

VICE PRESIDENT CATANZARITI:  And we go to Ohn, paragraph 22.  In relation to Mr Ohn, Mr Sede, if there is documentary material that goes to the basis of the closing of the pharmacy, and that's the assertion that is of most relevance, any financial material that justifies why the pharmacy is closed and the days in which it's closed, at any rate, should be produced.

PN138      

MR SEDE:  Your Honour used the word "justifies" the pharmacy being closed.

PN139      

VICE PRESIDENT CATANZARITI:  Well supporting the statement.  He says:

PN140      

We close the pharmacy and that's when the penalty rates reached 200 � 250 per cent.

PN141      

That's the link.  If you're pressing that in your evidence.

PN142      

MR SEDE:  Yes.

PN143      

VICE PRESIDENT CATANZARITI:  Then the documentary material that goes to it should be produced.

PN144      

MR SEDE:  May it please, your Honour.

PN145      

VICE PRESIDENT CATANZARITI:  Paragraph 9 of Playford, we're not directing anything further be produced there.  We then go to Pollock.  Yes, nothing to be produced in relation to Pollock.  We then go to Priccalo.  Nothing in relation to Priccalo.  Michelle Spiro.  Nothing in relation to Michelle Spiro.  Similarly with Tasone.  Do you want the lease, Mr Macken, in relation to this one?

PN146      

MR MACKEN:  No, not in relation to this one, your Honour.

PN147      

VICE PRESIDENT CATANZARITI:  No.  There is nothing then further in relation to the topic.  Nothing in relation to that one.  Then we go to Izzianius.  And there's nothing there either.  So that deals with the Pharmacy Guild.

PN148      

MR SEDE:  May it please, your Honour.  Might I have leave to leave the Bar table?

PN149      

VICE PRESIDENT CATANZARITI:  Yes, you may leave, Mr Sede.  That's the end of the Pharmacy Guild.

PN150      

MR SEDE:  Thank you, your Honour.

PN151      

VICE PRESIDENT CATANZARITI:  We'll now go to the ARA.  We're minded that in relation to Mr Show and given the persistency of paragraphs 12 and 13 where there are percentages referred to the documents should be produced.

PN152      

MR TINDLEY:  That's acceptable, your Honours, Commissioner.

PN153      

VICE PRESIDENT CATANZARITI:  Then go to Ari Baron.  Go back.

PN154      

MR TINDLEY:  Perhaps, your Honours, Commissioner, I might be able to save some of the time involved in this line by line approach.

PN155      

VICE PRESIDENT CATANZARITI:  Yes.

PN156      

MR TINDLEY:  If we take the approach that the profit and loss records are effectively out unless there's an unusual circumstance, where a witness talks about ‑ ‑ ‑

PN157      

DEPUTY PRESIDENT ASBURY:  A specific reference to something I think, Mr Tindley would � where there's a specific reference to some percentage or something then the basis of it needs to be established.  I think that's ‑ ‑ ‑

PN158      

MR TINDLEY:  Yes.  Yes.  And so what we will say is if there is a percentage of Sunday trade, percentage of sales, those sorts of things, we will produce the documents that the witness relied on in preparing their statements.

PN159      

VICE PRESIDENT CATANZARITI:  Yes.  I think we're here now.  Let's just go through the list so that we know.  I don't want any debate afterwards as to what we've decided, so let's get a ‑ ‑ ‑

PN160      

MR TINDLEY:  Yes.

PN161      

VICE PRESIDENT CATANZARITI:  Mr Baron, paragraph 6.  Why do you press paragraph 6, Mr Macken?

PN162      

MR MACKEN:  I don't think I do, your Honour.

PN163      

VICE PRESIDENT CATANZARITI:  You've dropped that, have you?

PN164      

MR MACKEN:  At the top of page 30 of ‑ ‑ ‑

PN165      

VICE PRESIDENT CATANZARITI:  Yes.  You dropped it.

PN166      

COMMISSIONER LEE:  Paragraph 16.

PN167      

VICE PRESIDENT CATANZARITI:  Yes, that's right.

PN168      

COMMISSIONER LEE:  Still pressing paragraph 16?

PN169      

MR MACKEN:  Yes, I think I do, sir.

PN170      

VICE PRESIDENT CATANZARITI:  Well, 16 falls in the same category.

PN171      

MR MACKEN:  Sorry, in the same category as the producible reference to percentages.

PN172      

VICE PRESIDENT CATANZARITI:  Yes, No, paragraph 16, material initially produced.  And paragraph 31 ‑ ‑ ‑

PN173      

MR MACKEN:  Has your Honour ruled on paragraph 11 and 13 yet of Baron?

PN174      

VICE PRESIDENT CATANZARITI:  Paragraph 11 of Baron.

PN175      

MR MACKEN:  Sorry, paragraph 11 the objection was to relevance but there was an assertion that no relevant document exist.  And I suppose the only comment, in my submissions, is if there are no documents they can't be produced.

PN176      

VICE PRESIDENT CATANZARITI:  No.

PN177      

MR MACKEN:  So that might deal with paragraph 11.  But paragraph 13 was pressed as well.  That has reference to percentages in terms of stores that trade.

PN178      

VICE PRESIDENT CATANZARITI:  Yes.  In relation to paragraph 13, Mr Tindley, are there any documents that go to it that should be produced?  That leaves paragraph 21.  Well, he's asserting there that he's done an exercise, and on the basis that he's done that exercise he looks at numbers, but the underpinning material should be produced.

PN179      

MR TINDLEY:  Your Honour, the attachment to Mr Baron's witness statement ‑ ‑ ‑

PN180      

VICE PRESIDENT CATANZARITI:  Is that what you say what he relies on?

PN181      

MR TINDLEY:  ‑ ‑ ‑sets out the matters he relied on.

PN182      

VICE PRESIDENT CATANZARITI:  So that's the only material that he reviewed?  Well, that's how he got his calculations, from that document?  You can cross-examine in relation to that.

PN183      

MR MACKEN:  What he attaches is a summary.  He says:

PN184      

I have reviewed the payroll information.

PN185      

Presumably that's the raw data.  And my take on that paragraph was that from which he produced that summary I suppose if we don't get access to the raw data that Mr Baron had regard to we can't take cross-examination beyond his simple assertion that the summary is an accurate or correct statement of the conclusions from the raw data that he says he has reviewed.  I suppose in particular the AiG witnesses have relevantly identified the payroll, similar type data, the raw data I'm talking about.  In my respectful submission if that paragraph is relevantly pressed for any forensic purpose we ought not to be left in the position of being stuck with a summary that we can't possibly test.

PN186      

COMMISSIONER LEE:  What's the difficulty with producing what's requested, Mr Tindley?

PN187      

MR TINDLEY:  Sorry, Commissioner?

PN188      

COMMISSIONER LEE:  What's the difficulty with producing what's requested?

PN189      

MR TINDLEY:  I couldn't quite hear that, sorry?

PN190      

COMMISSIONER LEE:  What is the difficulty with producing what is requested?

PN191      

MR TINDLEY:  Well, Mr Baron relies on the information that � Mr Baron is a senior executive in the business.  He instructs persons to provide him with the information which he's attached to his witness statement.  The provision of all of the raw data � Mr Baron doesn't say he looked at all the raw data and came to that conclusion.

PN192      

VICE PRESIDENT CATANZARITI:  Well, I think isn't that the problem.  The way that � you may have to actually seek leave to redo paragraph 21 because the way it currently � it leaves us viewing the matter thinking that he actually did review the actual payroll information.

PN193      

MR TINDLEY:  I'm not seeking to give evidence on behalf of Mr Baron.

PN194      

VICE PRESIDENT CATANZARITI:  No.  But I mean � but that's not ‑ ‑ ‑

PN195      

MR TINDLEY:  But the information that's contained in that ‑ ‑ ‑

PN196      

VICE PRESIDENT CATANZARITI:  ‑ ‑ ‑the way it's put and I think you may have to recast your paragraph.  Because looking at two pages is not reviewing the whole of the payroll information.  Others would have given him a summary.  That's what it looks like they've done.

PN197      

MR TINDLEY:  Yes.  I guess it's a characterisation of what was in the witness' mind when he talks about what payroll information is.

PN198      

VICE PRESIDENT CATANZARITI:  I think that's what Mr Macken is challenging.  So you've got an opportunity to actually look at that paragraph.  So at this stage we won't allow any further material.  Let's go then to Heath Goddard.

PN199      

MR MACKEN:  I can assist in relation to Mr Goddard.  Paragraph 15 referred to the request was relating to the sales figures.  The objection is not really an objection per se but a statement that there does not appear to be anything else for the witness to produce.  Now, if that's a true statement then there's nothing else for the witness to produce.  Paragraph 16 somewhat surprisingly for Mr Tindley there's no objection taken to the production of the sample data sets.

PN200      

VICE PRESIDENT CATANZARITI:  Yes.  So it'll be produced.

PN201      

MR MACKEN:  So that's agreed.  And then paragraph 22 has the statement about the profitability of Sunday trade being marginal.  We seek the documents that support that asserted fact.

PN202      

VICE PRESIDENT CATANZARITI:  I think, Mr Tindley, in relation to paragraph 22 we'd like documents to be produced that back up the assertions made within that paragraph.  So the references to profit on Sunday trade, add on and casual employees make up the majority of our weekend work force.  So whatever materials he relied upon should be produced.

PN203      

MR MACKEN:  Thank you, your Honour.  There's a ‑ ‑ ‑

PN204      

VICE PRESIDENT CATANZARITI:  That's what we're limiting to that, Mr Macken.

PN205      

MR MACKEN:  I understand that.  I understand.  Paragraph 25 ‑ ‑ ‑

PN206      

VICE PRESIDENT CATANZARITI:  Yes, we're coming to paragraph 25.

PN207      

MR MACKEN:  I was just going to say the figures in there may flow from the sample data set that's been ‑ ‑ ‑

PN208      

VICE PRESIDENT CATANZARITI:  I think they do.  Yes.  So paragraph 25 we'll leave.  Let's go to Mr Dyrelle.  In relation to paragraph 8 there's nothing to be produced.  In relation to paragraphs 12 through to 25, Mr Tindley, we think the material that underpins those assertions should be produced.

PN209      

MR TINDLEY:  Your Honours, Commissioner, the only residual issue in relation to paragraph 12 as contained within the SDA and submissions we've sought to rely on only relevant parts of the lease agreements and have maintained confidentiality in relation to them.  The question was asked what are the relevant parts.  Well, naturally the relevant parts are the parts that deal with what the requirements to trade are.

PN210      

VICE PRESIDENT CATANZARITI:  Yes.  That's so.

PN211      

MR MACKEN:  That's your point of interest.

PN212      

VICE PRESIDENT CATANZARITI:  Yes.  Mr Macken has agreed with it.

PN213      

MR MACKEN:  If that's the ruling from the Commission I won't question it.

PN214      

VICE PRESIDENT CATANZARITI:  Yes.  Okay.  We move to Belinda Daggart.  Paragraph 13 we think material should be produced.  We need to put a timeframe around this, Mr Macken, paragraph 13.

PN215      

MR MACKEN:  I'm in the Commission's hands.  Obviously we were seeking the profit and loss statement for it to make ‑ ‑ ‑

PN216      

VICE PRESIDENT CATANZARITI:  Yes.  Well, we're limiting to the statement, 10 per cent of Bakers Delight (indistinct) weekly trading.  What about the last six months or something?

PN217      

MR MACKEN:  If the Commission pleases.

PN218      

VICE PRESIDENT CATANZARITI:  The last six months, Mr Tindley?  All right.  Then go to Chris (indistinct).  Paragraph 11, the documents should be produced, Mr Tindley, otherwise the rest of it (indistinct).  Mr Gough is next.

PN219      

MR MACKEN:  If your Honour will hear me in relation to Mr Gough, in paragraph 9 I have regard to your Honour's ruling in relation to profit and loss statements, but Mr Gough is in a slightly different category from the other witnesses, and I think that was perhaps acknowledged by Mr Tindley in ‑ ‑ ‑

PN220      

VICE PRESIDENT CATANZARITI:  Yes.  He's in a ‑ ‑ ‑

PN221      

MR MACKEN:  He had an assertion that his store is not profitable but we would like to test ‑ ‑ ‑

PN222      

VICE PRESIDENT CATANZARITI:  Yes.  He's actually making a � Mr Tindley, what do you say about the documents in relation to paragraphs 9 and 14?

PN223      

MR TINDLEY:  Your Honours, the witness identifies the basis upon which he's saying it's not profitable in terms of the number of sales per week he requires and his current sales per week.  In our submission that would � to answer that question would require simply information that identifies the amount of sales per week that the store is making.

PN224      

VICE PRESIDENT CATANZARITI:  Well, he will have some documents that go to that.  So those documents should be produced.  And any document that goes to paragraph 14 as well.  And that's the end of those ones.

PN225      

MR MACKEN:  As your Honour pleases.  That's the end of the objections.  Your Honour, this is more relevant for the Full Bench as a whole but there was questions asked in relation to the scheduling of Professor Rose just before the Bench rose.

PN226      

VICE PRESIDENT CATANZARITI:  Yes.  We'll convey that back to the ‑ ‑ ‑

PN227      

MR MACKEN:  I am instructed that the SDA will be in a position to cross-examine Professor Rose on Friday and if perhaps that clarification could be communicated to the Full Bench as duly constituted.

PN228      

VICE PRESIDENT CATANZARITI:  Excellent.  I will do that.

PN229      

MR MACKEN:  As your Honour pleases.

PN230      

VICE PRESIDENT CATANZARITI:  You got anything further?

PN231      

MR TINDLEY:  Your Honours, Commissioner, the only additional matter I would raise is in relation to Mr Goddard and the production of documents.  We are having difficulty contacting Mr Goddard.  We will endeavour to have those documents by the returnable date, but we just wish to flag that there may be some short delay in relation to that and we will advise the SDA on the run about that if that's acceptable.

PN232      

VICE PRESIDENT CATANZARITI:  Yes.  There's no problem with that.  When is he scheduled to give evidence?

PN233      

MR TINDLEY:  Monday, I believe.  Sorry, when is he giving evidence?

PN234      

VICE PRESIDENT CATANZARITI:  Yes, when he's giving it.  It's not for some time, is it?

PN235      

MR TINDLEY:  I think it's 19 or 20 October.

PN236      

VICE PRESIDENT CATANZARITI:  Plenty of time.

PN237      

MR MACKEN:  There's plenty of time.  We won't take those sort of issues.

PN238      

MR TINDLEY:  Your Honour, at the risk of delaying further your departure, I noted this morning ‑ ‑ ‑

PN239      

VICE PRESIDENT CATANZARITI:  We're here for the week.

PN240      

MR TINDLEY:  ‑ ‑ ‑in relation to the scheduling of some witnesses there was a statement about, or a witness that's scheduled to give evidence at 2 pm on Friday.

PN241      

VICE PRESIDENT CATANZARITI:  That's Mr Parker.

PN242      

MR TINDLEY:  I'm just trying to understand what that means for Dr Sands who is our expert.  I say that because I've twice cancelled Dr Sands' flights.

PN243      

VICE PRESIDENT CATANZARITI:  Mr Parker, we anticipate will be four questions.  He's being recalled in relation to some emails.

PN244      

MR TINDLEY:  So he may interspersed between Dr Sands' evidence.

PN245      

VICE PRESIDENT CATANZARITI:  That's what will happen.  Yes.

PN246      

MR TINDLEY:  That's fine.  Thank you.

PN247      

VICE PRESIDENT CATANZARITI:  Anything further?

PN248      

MR MACKEN:  No, your Honour.

PN249      

VICE PRESIDENT CATANZARITI:  Okay.  The Commission is adjourned.

ADJOURNED UNTIL FRIDAY, 25 SEPTEMBER 2015                  [1.30 PM]