PN1

THE VICE PRESIDENT: I'll take the appearances: Mr Macken, you appear for the SDA?

PN2

MR D MACKEN: Yes, good morning, Vice President. Yes, Macken, initial D, seeking permission to appear for the SDA.

PN3

THE VICE PRESIDENT: Thank you. Mr Crawford, you appear for the AWU?

PN4

MR S CRAWFORD: Yes, your Honour.

PN5

THE VICE PRESIDENT: Mr Harmer, you appear for the Australian Ski Areas Association?

PN6

MR HARMER: Yes, thank you, your Honour; seeking permission to appear for that group.

PN7

THE VICE PRESIDENT: I grant permission for legal representation for the purposes of today. So, Mr Harmer, you've sent through some agreed directions, as I understand it.

PN8

MR HARMER: Yes, agreed by the three parties, thank you, Vice President.

PN9

THE VICE PRESIDENT: Mr Harmer, the usual procedure to have a strike-out motion heard is that the mover of the motion has to elect not to call evidence if unsuccessful.

PN10

MR HARMER: Your Honour, I don't (indistinct) that be a requirement, that is required by (indistinct).

PN11

THE VICE PRESIDENT: I'm sorry, Mr Harmer? You're cutting out.

PN12

MR HARMER: I'm sorry, your Honour. Your Honour, I did not understand that to be a requirement as such under the authorities. Is that being specified by the Commission as a requirement in this case?

PN13

THE VICE PRESIDENT: Well, that is the usual legal principle which applies to strike-out motions, to avoid duplication of proceedings.

PN14

MR HARMER: Not to all strike-out motions, your Honour, and certainly not the standard, as I understand it. Certainly, election is one issue that can arise but I don't understand it to be the normal mode either in this tribunal and certainly not in the Federal Court or other courts at present.

PN15

THE VICE PRESIDENT: Well, that's not correct, Mr Harmer, but in any event, why should I hear this motion if it just runs the risk - without expressing any view about it, of course - of a duplication of decision making?

PN16

MR HARMER: In our respectful submission, your Honour, (indistinct) post the (indistinct) of legislation of four-yearly review. We understand that there hasn't been a Full Bench duplication - - -

PN17

THE VICE PRESIDENT: Mr Harmer, you're cutting out. I can't hear you.

PN18

MR HARMER: I apologise, your Honour. Is that any better?

PN19

THE VICE PRESIDENT: Yes, that is better.

PN20

MR HARMER: Sorry about that, your Honour. Your Honour, I was saying that we consider the issue important because as we understand it, post the legislation removing the four-yearly review, there has not been a Full Bench determination as to what exactly is the test under section 157 that would warrant the Commission entering into a hearing in relation to a variation. We acknowledge there has been a large number of COVID-based variations where obviously there is a material issue of change involved but in this circumstance, where matters that have been determined by initially a seven-member Bench and then undisturbed throughout the four-yearly review are asked to be re-agitated without evidence, it's our respectful submission that that doesn't cross the threshold and that it would be saving of time and expense by all the parties to entertain the strike-out.

PN21

THE VICE PRESIDENT: It doesn't save any expense. It just adds to expense if the strike-out is unsuccessful. That's the point.

PN22

MR HARMER: Yes, and we appreciate that's a risk that's run by the association in terms of there will be additional expense to it and we acknowledge to the parties and to the Commission but obviously, if the matter were to succeed, there would be a huge saving of expense in term of the amount of evidence involved in the SDA application, which goes to the very core of the award as it was first determined in the initial award modernisation hearings.

PN23

THE VICE PRESIDENT: I'm just trying to understand this, Mr Harmer: in circumstances where the applicant hasn't filed any evidence, which points to some sort of new circumstance or something else which might require previous decisions to be departed from - I mean, why in any event would you, if there was no strike-out, would you need to file evidence in response? That is, there is nothing to respond to, is there?

PN24

MR HARMER: That's why we have brought the strike-out, your Honour, that in more abundant caution if the strike-out was to fail we would be going into evidence because the application strikes at the very core of our award.

PN25

THE VICE PRESIDENT: Yes, but going into evidence about what?

PN26

MR HARMER: About the interplay of general modern awards with our award, which apparently is the issue that the SDA seeks to agitate.

PN27

THE VICE PRESIDENT: I mean, I would have thought all those factual issues were agitated in the four-yearly review proceedings with reference to a different application; that is all those interplay issues were dealt with. I'm not - I'm just tyring to understand. In absence of the suggestion that anything has changed since we heard that application, I'm just wondering why there would be any need for evidence in the first place.

PN28

MR HARMER: Your Honour, we're not unsympathetic. Indeed, we share that issue. We are struggling ourselves to understand the basis for the SDA application against the history, which includes that four-yearly review, where yes, we would say all those issues were traversed and prior to that traversed before a seven-member Bench that made the award. But it is a critical issue for our award. If the matter does go ahead we would certainly be seeking to bring forward and reinforce the evidence that saw the award created in the first place and survive the last 10 years in its current form, to a large extent.

PN29

THE VICE PRESIDENT: Mr Macken or Mr Crawford, do you want to say anything about this issue?

PN30

MR MACKEN: It's Mr Macken, your Honour: we're in the Commission's hands. We were content, as indicated in the exchange of emails, to agree with the proposed course of action for a timetabling of the application that's been brought by the respondent to our client's application. I accept the points as made. I don't think the SDA needs to be heard on the extent to which in effect an election is required to be made in the context of that application. But I hear what has fallen from your Honour's lips this morning in relation to that. Our client's application is there. It is essentially a submission-based application framed around in effect an evidentiary case that we say has already been articulated and determined in the context of deciding what is the appropriate safety net standards that should apply for retail workers and allied industry workers.

PN31

The merits of our client's application will essentially fall to be determined by reference to how it is appropriate in the context of meeting the modern award objectives for safety net standards to be struck or set at lower standards, simply based on who one's employer is. But in terms of the application that confronts your Honour today, our position is we were content with the timetabling as proposed in the sense that it didn't seem to us to additionally post such extravagant inconvenience on the parties and although I accept that it increases the burden for the Commission to respond to. But other than that we are in the Commission's hands in relation to whether in effect the Commission requires the respondent to be put to an effective election as the condition precedent to bringing that application.

PN32

THE VICE PRESIDENT: Thank you. Mr Crawford, do you want to say anything?

PN33

MR CRAWFORD: No, thank you, your Honour.

PN34

THE VICE PRESIDENT: Mr Harmer, the difficulty I have is that in the current, difficult circumstances which the Commission faces, I doubt the Commission will be in a position to make any decision on a strike-out application earlier than it would be able to if the existing directions are maintained. So the only thing it seems to me that potentially your strike-out application would achieve in terms of saving is that it might save your client the need to put on evidence, which I think I've indicated I don't currently see the need for. The downside is it puts the Commission to the task of potentially writing two decisions.

PN35

MR HARMER: Yes, your Honour.

PN36

THE VICE PRESIDENT: (Indistinct.)

PN37

MR HARMER: Your Honour, I thank the Commission for those observations and for informing us of that situation. If I might seek the discretion of the Commission just to step back and seek instructions - I don't have my instructors online today - but to seek instructions in light of what the Commission has observed and to attempt to obviate the load for the Commission one way or the other, whether that's through election or whether just stepping back to the original timetabling in light of what your Honour has observed.

PN38

THE VICE PRESIDENT: I think I'll leave it this way: my current inclination, unless I'm persuaded otherwise, is to maintain the existing directions in place and to hear your strike-out application simultaneously with the principal application unless you inform me that your client elects not to call evidence in the event that the strike-out application was unsuccessful.

PN39

MR HARMER: Thank you, your Honour; (indistinct.)

PN40

THE VICE PRESIDENT: Anyway, you can give me the appropriate advice at any time, Mr Harmer. Until such time as you do, the existing directions will remain in place.

PN41

MR HARMER: May it please the Commission.

PN42

THE VICE PRESIDENT: If you do give me that advice I'll make the consent directions with any necessary adjustments of dates.

PN43

MR HARMER: May it please, thank you.

PN44

THE VICE PRESIDENT: I thank everyone for their attendance. I will now adjourn.

ADJOURNED INDEFINITELY [10.14 AM]