PN1

THE DEPUTY PRESIDENT: I might just take the appearances, if I can. Mr Crawford.

PN2

MR CRAWFORD: Yes, your Honour.

PN3

THE DEPUTY PRESIDENT: Mr Smith? In Melbourne, Mr Bakri?

PN4

MR BAKRI: Bakri, I appear for the MUW today, Deputy President.

PN5

THE DEPUTY PRESIDENT: Thank you. In Adelaide, Ms Walker?

PN6

MS WALKER: Yes, for the Mitolo Group, Deputy President.

PN7

THE DEPUTY PRESIDENT: Is Ms Dunne with you?

PN8

MS WALKER: She is. Currently out of camera shot. I apologise in advance. I have a commitment in another court in an hour and 10 minutes. If we are still going, I will seek leave to withdraw and Ms Dunne will step into the breach.

PN9

THE DEPUTY PRESIDENT: We've been informed at 10.30 in Adelaide there will be a fire drill.

PN10

MS WALKER: Yes, that's 11 o'clock.

PN11

THE DEPUTY PRESIDENT: 11 o'clock, is it, right.

PN12

MS WALKER: 11 o'clock your time and I would hope we're well and truly through the issues before we have to inconvenience the Commission.

PN13

THE DEPUTY PRESIDENT: As am I, yes, good. Ms Pearce, you're in Canberra?

PN14

MS PEARSALL: Yes, for the National Farmers Federation, Deputy President.

PN15

THE DEPUTY PRESIDENT: Thank you, good. I think all of the materials that the parties wish to rely upon has now been filed. Is there anything that's outstanding that I don't know about?

PN16

MR BAKRI: Deputy President, there is – not in relation to evidence, in relation to the hearing dates, there are two residual issues that I do wish to address. It may be more convenient to deal with those later.

PN17

THE DEPUTY PRESIDENT: All right, we'll come back to that, thank you. Mr Smith?

PN18

MR SMITH: Your Honour, there's also the issue that we raised in the email of 31 May - - -

PN19

THE DEPUTY PRESIDENT: Can everyone hear Mr Smith clearly? You might need to get a little bit closer to the – pull the microphone over.

PN20

MR SMITH: Yes, there's the issue that we raised in the email of 31 May, which is the – not the central issue for the hearings but an issue that is the subject of some ongoing discussions between Ai Group, the NFF and the AWU about the definition of broadacre field crops and the interaction between the Pastoral Award and the Horticulture Award.

PN21

The parties have agreed that what they would prefer with that matter is to continue those discussions rather than having that matter arbitrated. It's not central to the issues before the Bench. All of the parties seem to be of the understanding that the recent variation that was made to the Pastoral Award was not intended to disturb the coverage of the Horticulture Award. We're all hoping that we can find a solution to that problem, rather than having an arbitration about that issue, because we've all got a common objective.

PN22

What we would seek is to have that matter removed from the matters that the Full Bench is dealing with.

PN23

THE DEPUTY PRESIDENT: Is there any objection to that approach from anyone?

PN24

MR BAKRI: No, no, we're quite comfortable with that approach, Deputy President.

PN25

MS WALKER: As are we.

PN26

THE DEPUTY PRESIDENT: And the farmers?

PN27

MS PEARSALL: No, Deputy President.

PN28

THE DEPUTY PRESIDENT: You're comfortable with that?

PN29

MS PEARSALL: Yes, we are.

PN30

THE DEPUTY PRESIDENT: The main two purposes of today's conference was to identify and to the extent possible, deal with any objections to the evidence and see if we can get some agreement on the order of witnesses. I'm wondering which one might be the fastest and perhaps it's initially the order of witnesses, unless there are some witnesses that the parties have already agreed may not require cross-examination, in which case their statements might be accepted with – I'm just actually noting the draft timetable proposed by the employer parties that was provided yesterday. I'm assuming everyone's got a copy of that.

PN31

It seemed to miss a couple of people from the statements that had been filed, so I don't know whether that's me reading that incorrectly, or.

PN32

MS WALKER: Deputy President, my instructor has circulated that timetable. I think the missing witnesses are what we've been calling the broadacre crop witnesses who are relevant only to that issue that Mr Smith referred to. As a result, they were carved out of this timetable in the event - - -

PN33

THE DEPUTY PRESIDENT: Is that Barbara Grey, David McKeon and Jeremy Morton?

PN34

MS WALKER: That's my understanding, yes.

PN35

THE DEPUTY PRESIDENT: They were the three that seemed to be missing when I had a quick look last night.

PN36

MR CRAWFORD: Yes, that's correct.

PN37

MS WALKER: Yes, so they're only related to broadacre.

PN38

MR CRAWFORD: Yes.

PN39

MS WALKER: Deputy President, there's been as I understand it, since my instructor circulated the version last night, a slight change in the order of the Fireman's Federation's witnesses. Simply to swap two amongst two slots. But subject to that, the timetable is, as I understand it, agreed by all of the employer parties.

PN40

The two issues that my friend in Melbourne raised are, as I understand it, firstly the location of weeks two and three, and secondly, the dates for week three. With respect to the first issue, I understand my friend might make the application to have weeks two and three in Melbourne. If that's made, my instructions are that we're not particularly fussed one way or the other. It's really a matter for the Commission's convenience. I understand that's the position of all of the employer parties.

PN41

With respect to the question of the dates for the third week, we very strongly seek to maintain the current listing dates. They've been in place since at least December of last year and then we have concerns about the difficulty of getting everyone in the Commission, particularly with a Full Bench in the one place, in the event that there's a need to change those dates.

PN42

Subject to those two issues, as I understand it, the proposed timetable that we circulated, is largely agreed.

PN43

THE DEPUTY PRESIDENT: Just a quick comment in relation to changing dates. We've got a five-member Bench. I just want to flag up front, it will be exceptionally difficult to find any new dates any time soon, if these dates are to change. We find that five members who will all no doubt have fairly full calendars going through probably to pretty close to the end of the year.

PN44

I also note we're all in Sydney. So, again, that doesn't exclude a Melbourne hearing, but we'll need to be satisfied that there's good reasons for five of us to travel to Melbourne.

PN45

I might just ask then for the union parties in terms of the timetable. Mr Crawford, can I start with you? Have you had a chance to review those timetables? Do you have any objections to that, or the witnesses?

PN46

MR CRAWFORD: Yes, we have reviewed it, and no, we don't have any objections.

PN47

THE DEPUTY PRESIDENT: Good. Mr Bakri, have you had a chance to review it? Any objections in terms of the order of witnesses?

PN48

MR BAKRI: Thank you, Deputy President. In respect to the order of witnesses, no. We have had a chance to review it and we're content with that order. If it's convenient now for me to address those two residual issues?

PN49

THE DEPUTY PRESIDENT: Yes.

PN50

MR BAKRI: In relation to the first issue, which are location of the hearing dates, we agree with the employer parties that it really is a matter of the Commission's convenience. My client's preference is that the second and third weeks of the listing be Melbourne, and it's for the following reasons.

PN51

Firstly, the unions member witnesses, Mr Johnstone and Ms Rolt, would find it difficult to travel to Sydney. Of course, it's not an insurmountable difficulty, and should it be more convenient for the hearing to be held in Sydney, then that will have to be accommodated. We just raise it as our client's preference, but of course accept, that if it's more convenient to the Full Bench to maintain the hearing in Sydney, that it's something that my client will need to work in with. That's all I wish to say to that.

PN52

THE DEPUTY PRESIDENT: Mr Bakri, is there any reason that they can't give their evidence from Melbourne while we're sitting in Sydney, in the same way that we're managing the video conference facilities now?

PN53

MR BAKRI: It may be something that can be accommodated. The difficulty with that is that my instructor and myself would be in Sydney during that time because there are other witnesses being called in that period. So, it may be difficult to liaise, but of course, it is something that we may explore. I put it no higher, Deputy President, than it's our preference to be in Melbourne. If it's much more convenient to the Bench to have it in Sydney, we don't strenuously press the request.

PN54

MS WALKER: Deputy President, I'm sorry to interrupt, I understand Ms Rolt, who's one of my client's employees and a witness for my friend, is in fact located in Adelaide. I just wanted to make sure that information was before the Commission.

PN55

THE DEPUTY PRESIDENT: Okay.

PN56

MR BAKRI: Yes, and my instructions are that she is located in rural or regional South Australia. But I put it no higher than that, that my instructions are that my client would prefer for the second week of hearing to be in Melbourne, but we're in the Commission's hands as to what's more convenient.

PN57

THE DEPUTY PRESIDENT: Thank you. So otherwise then, we – now was there any further submissions? Mr Bakri, did you have anything to raise in terms of dates?

PN58

MR BAKRI: I do, I do. Turning to the third week of hearings, that's Wednesday 2 August and Thursday the 3rd. An unfortunate situation has arisen on our end and that is that it appears that I personally have a clash with a Federal Court appeal, that it looks like will be listed on 31 July, 1 August and 2 August. This listing will be confirmed this Friday at a case management hearing before Tracey J in the Federal Court, but all indications from the Court are that that's when the appeal will be listed.

PN59

My client understands that it's very difficult to move these matters and it's with great hesitation that we even raise this difficulty. But our concern is that if the hearing remains on 2 August, that my client may need to rebrief and that would cause – it has the potential to cause some prejudice to my client. Of course, there would be additional cost and it may be difficult at this late stage, to find a barrister with the requisite availability to accept the brief.

PN60

It's quite an unfortunate situation in which the matter that's now listed for appeal is a matter that I have been briefed in since approximately July of 2015. So, whilst I have been engaged on this matter, we have had a situation where a decision has been handed down, a notice of appeal has been filed and now that appeal is going to be listed.

PN61

All we ask at this stage that the Full Bench explore, whether it's possible to adjust the hearing dates to accommodate this situation. We understand that it may not be feasible to move the dates, ultimately. But we ask that that first step be taken of exploring what other alternative dates may work. If there are other dates in the coming weeks, we would submit no prejudice to the employer parties, particularly in circumstances where they're seeking an order for the retrospective application of the variations.

PN62

In the event that there were no dates for a considerable amount of time, well, we would understand that it might not be feasible in that situation to formally change that hearing date.

PN63

THE DEPUTY PRESIDENT: I think you mentioned at the beginning of your submissions that you were having a case management conference with the Federal Court and you'd confirm those dates. Did you say that was by this Friday, or within a week?

PN64

MR BAKRI: Yes, it's on Friday morning.

PN65

THE DEPUTY PRESIDENT: Perhaps I could ask you to contact my chambers on Friday and to confirm those dates and so if we don't have an issue then I don't need to make any enquiries with my colleagues in terms of varying these dates and if you are stuck, then I'll explore that with the other members of the Bench.

PN66

MR BAKRI: Thank you, Deputy President. That seems like a prudent course. I do apologise for this inconvenience. It's a matter that's really out of my hands, but we will liaise with your chambers on Friday.

PN67

THE DEPUTY PRESIDENT: Thank you. That seems to take care of the order of the witnesses then, unless there's anything further on that issue from anyone?

PN68

MR BAKRI: No.

PN69

MS WALKER: Deputy President, simply that we'll circulate the finalised version, which incorporates the change from the National Farmers Federation; we'll circulate that today.

PN70

THE DEPUTY PRESIDENT: Thank you.

PN71

MS PEARSALL: Deputy President, I would just like to note that in relation to two of the National Farmers Federation witnesses, Gavin Scurr and Phillip Turnbull. They will be travelling during the hearing dates. In particular, Mr Turnbull will be overseas. Given that, we would seek to tender their evidence without them having to appear, and in the event they are required to appear, we will endeavour to arrange for them to give evidence by phone with permission.

PN72

THE DEPUTY PRESIDENT: That was Mr Turnbull by phone and - - -

PN73

MS PEARSALL: And Gavin Scurr, Mr Scurr.

PN74

THE DEPUTY PRESIDENT: Thank you. All right, I'm assuming we're shortly going to be finding out whether they're going to be required for cross-examination or not, so that might deal with that issue.

PN75

MS PEARSALL: Thank you, Deputy President.

PN76

THE DEPUTY PRESIDENT: In terms of identifying any objections to the evidence that's being filed post the evidence in these proceedings, perhaps we can just work through organisation by organisation in terms of who the witnesses are and then the parties can identify whether there intends to be any objections to any parts of the evidence and can identify the extent we can reach agreement on that, that would be good. To the extent that we can't, I will keep a record of those issues and the Bench will make a decision about that.

PN77

Mr Smith, can we start with your three. That's Mr Robertson, Mr Davis, Mr Cody?

PN78

MR SMITH: Yes.

PN79

THE DEPUTY PRESIDENT: Mr Robertson first. Everyone got Mr Robertson's statement? Bryan Robertson?

PN80

MR SMITH: Yes, I understand there aren't any objections to that evidence. In fact, with the three - - -

PN81

THE DEPUTY PRESIDENT: Have you got a summary? That will save me some time.

PN82

MR SMITH: We did receive an email from the NUW only identifying one objection to the witness statement of Mr Cody - or one objection in that paragraph 22 is objected to and the first sentence of paragraph 23.

PN83

THE DEPUTY PRESIDENT: I'll just turn that up. So, paragraph 22.

PN84

MR SMITH: Paragraph 22.

PN85

MR BAKRI: Deputy President, I might be able to short circuit things here. I do apologise for the interruption. We have raised a few discrete objections with some of the employer parties. We have received responses from most of those employer parties. Today we don't intend to – in light of those response, press any formal objections. What we propose to do is instead, deal with our concerns with the evidence and what could be made of that evidence in closing submissions.

PN86

THE DEPUTY PRESIDENT: Okay.

PN87

MR BAKRI: So, we don't need to trouble you with the objections we've flagged with the employer parties.

PN88

THE DEPUTY PRESIDENT: Good. I suppose the question then is, then Mr Crawford, do you have any?

PN89

MR CRAWFORD: No we don't.

PN90

THE DEPUTY PRESIDENT: No objections to the evidence of AiG? We'll just deal with AiG at the moment.

PN91

MR CRAWFORD: In general, we've got the same position. We don't have formal objections; we'll deal with it in submissions.

PN92

THE DEPUTY PRESIDENT: Good.

PN93

MS WALKER: Deputy President, that's the approach that my client and as I understand it, all of the employer parties intend to take as well. But we're conscious it's not an evidence act jurisdiction and we'll deal with it as a matter of weight.

PN94

THE DEPUTY PRESIDENT: So there's no objections to the evidence we need to deal with?

PN95

MR SMITH: I think that's correct.

PN96

MR BAKRI: That is so, Deputy President.

PN97

THE DEPUTY PRESIDENT: That is fabulous.

PN98

MR BAKRI: Deputy President, I'm omitted to raise one other issue and that is the location of the closing submissions.

PN99

THE DEPUTY PRESIDENT: Yes.

PN100

MR BAKRI: I'm helpfully reminded by my instructor, that she will be heavily pregnant at around – from 2 and 3 August and it would be difficult for her, if not impossible, to travel to Sydney. It's on that basis that we – similar to our request with the second week, subject to the Full Bench's convenience, we request that closing submissions be held in Melbourne.

PN101

We've raised this with the employer parties and I think they hold the view that they don't a firm view on it. It's a matter for the Commission.

PN102

MS WALKER: That's certainly my client's position, Deputy President.

PN103

THE DEPUTY PRESIDENT: Do any of the employers have any objections to Melbourne for the closing? Again, I need to consult with the Bench, when I'm clear about the parties' positions.

PN104

MR SMITH: Your Honour, we don't have any objection. It's obviously more convenient for us in Sydney, but we don't have any objection. It's in the Commission's hands.

PN105

THE DEPUTY PRESIDENT: Can anyone see any difficulty in again, if there are parties in Melbourne, Adelaide and Sydney, Canberra, doing submissions in this way, over video conference? It just might mean that no one has to travel too far if that's the case.

PN106

MS WALKER: Deputy President, we'll be travelling one way or the other, so from my point of view, we're just not fussed by the location matter.

PN107

THE DEPUTY PRESIDENT: Thank you. Mr Bakri?

PN108

MR BAKRI: Deputy President, from our point of view, we think it's preferable to be in the same location as the Full Bench for the closing submissions.

PN109

THE DEPUTY PRESIDENT: Yes.

PN110

MR BAKRI: Similar to the situation with the second week, in the event it can't be accommodated, or it's too inconvenient, we'll just have to work in with that. It's just our preference to have both myself and my instructor in the room with the Full Bench to be in the best position to provide the assistance required.

PN111

THE DEPUTY PRESIDENT: Thank you.

PN112

MS WALKER: But we understand there is an option to appear via video link.

PN113

THE DEPUTY PRESIDENT: I suppose the other question then is, are all of the witnesses – sorry, Mr Bakri, I'll consult with the other members of the Bench and we'll confirm that, but I won't do that until after we hear from you on Friday, so that I'm only doing that once with them.

PN114

MR BAKRI: Yes.

PN115

THE DEPUTY PRESIDENT: In terms of the witnesses, are they all required to be available for cross-examination? I just not also the Farmers' Federation are having people travelling. Is it worthwhile just doing a quick check and seeing whether there's anyone who's not required.

PN116

If we work to the list, based on the draft timetable, on the first day – I know the list is going to change slightly, but this will do for the moment. Paula Colquhoun, is she required for cross-examination?

PN117

MR BAKRI: Yes, she is required by the NUW.

PN118

THE DEPUTY PRESIDENT: Maybe it's easier, Mr Bakri. Is there anyone that you don't require for cross-examination?

PN119

MR BAKRI: Yes. What I can say is that at this stage I can confirm we require everyone other than the NFF witnesses, we're still considering them. We're also considering Mr Dollisson from The Voice of Horticulture.

PN120

At this stage, it's unlikely we will require those individuals for cross-examination, but we will be in a position to confirm that in the next day or two. The other witnesses, I can say are required.

PN121

THE DEPUTY PRESIDENT: Perhaps I could ask you then, when you contact my chambers on Friday, to confirm also then, which witnesses you do not require for cross-examination.

PN122

MR BAKRI: Yes, we can certainly do that.

PN123

THE DEPUTY PRESIDENT: Thank you. Mr Crawford.

PN124

MR CRAWFORD: Can we please do the same? We'll communicate with the NUW so there's not overlap.

PN125

THE DEPUTY PRESIDENT: Again, if you can let my chambers know by close of business Friday.

PN126

MR CRAWFORD: Friday?

PN127

THE DEPUTY PRESIDENT: Which ones are not required. Of the employer parties, is there any of the – you're not calling any witnesses, are you?

PN128

MR CRAWFORD: No, we don't have any witnesses.

PN129

THE DEPUTY PRESIDENT: Of the three NUW witnesses, are they required for cross-examination Mr Smith?

PN130

MR SMITH: I'd like to just defer to Ms Walker on that initially, if I could.

PN131

THE DEPUTY PRESIDENT: Would you like to do the same? Ms Walker?

PN132

MS WALKER: Yes, from my client's point of view, all of the NUW witnesses are required for cross-examination.

PN133

THE DEPUTY PRESIDENT: That probably does it then, yes. If there anything further then that we need to do today? Is there anything that's – I might start in Sydney.

PN134

MR CRAWFORD: No, thank you.

PN135

THE DEPUTY PRESIDENT: Mr Smith?

PN136

MR SMITH: Your Honour, I assume when the unions are saying they required our witnesses for cross-examination, they are insisting that they attend the hearing in person? I need to go back to the three witnesses. Just want to flag whether there's the option of saying to them that they can appear from Adelaide, should they choose to do so.

PN137

THE DEPUTY PRESIDENT: Again, perhaps - - -

PN138

MR SMITH: Were not opposed to that.

PN139

THE DEPUTY PRESIDENT: You're not opposed to that? Mr Bakri, any opposition to cross-examining over video?

PN140

MR BAKRI: No, subject to the Commission, of course, being comfortable with that approach.

PN141

THE DEPUTY PRESIDENT: I'll confirm that.

PN142

MR CRAWFORD: Can I just check, should we proceed on the basis that the broadacre issue is out, or not yet?

PN143

THE DEPUTY PRESIDENT: I think that's a safe bet and I will still confirm it after I have the opportunity to confirm it with the Bench, but yes, we'll see on that basis.

PN144

Mr Smith, just coming back to that broadacre issue, obviously the optimistic view is that it will be resolved and you don't need the Bench to do anything. If that's not the case, how would that proceed in your view?

PN145

MR SMITH: What we put in that email, was that we'd like to have a period of time to work through that issue. If we don't resolve the issue, we'd seek that that matter be listed. But, we're hopeful that we will reach agreement, so we don't want to necessarily send a message that we won't when all the parties are working towards that aim.

PN146

If we didn't reach agreement perhaps there's some more orderly way that that could be dealt with rather than asking for a five-member Bench to deal with the issue either through written submissions, or through perhaps one member of the Bench dealing with the evidence. We'd certainly try to accommodate that matter being dealt with in the most cost-effective way.

PN147

THE DEPUTY PRESIDENT: Great, and without wanting to hold you to any particular time frame, over what period of time, do you think your discussions might take and conclude?

PN148

MR SMITH: If we could have until the end of August, was what we proposed in that email.

PN149

THE DEPUTY PRESIDENT: Yes, thank you.

PN150

MR SMITH: That should give us enough time. All of the parties are involved in the current case, as well as lots of other matters, so, that's why we were seeking that little bit of time.

PN151

THE DEPUTY PRESIDENT: Yes, okay. Are there any objections to that approach from anyone?

PN152

MR BAKRI: No.

PN153

MS PEARSALL: Not here.

PN154

MS WALKER: No, Deputy President.

PN155

THE DEPUTY PRESIDENT: Is there anything further then Melbourne, that we need to deal with today?

PN156

MR BAKRI: No, nothing in Melbourne.

PN157

THE DEPUTY PRESIDENT: Adelaide?

PN158

MS WALKER: Only this, Deputy President, in the event that Mr Bakri's difficulty doesn't go away, we have concerns about splitting the submissions. So, if we were to sit on one day in the current listings, we would be reluctant to then have the conclusion of the submissions at another time. There are some significant cost efficiencies for everyone in doing it in one hit as well as the continuity of the submissions.

PN159

THE DEPUTY PRESIDENT: Yes, all right. We'll deal with that as soon as we get confirmation Friday as to whether that's an issue or not.

PN160

MS WALKER: Thank you, Deputy President.

PN161

THE DEPUTY PRESIDENT: Anything else from Canberra, Ms Pearsall?

PN162

MS PEARSALL: No, your Honour.

PN163

THE DEPUTY PRESIDENT: Thank you all for being very efficient. We don't have to worry about fire drills which is excellent.

PN164

MS WALKER: We bring the interesting issues from Adelaide.

PN165

THE DEPUTY PRESIDENT: If there's nothing further, then we'll conclude the conference. I appreciate your assistance, thank you.

PN166

MR BAKRI: Thank you.

PN167

MS WALKER: Thank you.

PN168

MR SMITH: Thank you.

ADJOURNED INDEFINITELY [9.33 AM]