PN1

JUSTICE ROSS: Good afternoon. I understand we have Ms Dabarera from United Voice, Ms Thomson from ABI and Mr Ward from Restaurant and Catering Industrial. Is that right?

PN2

MS DABARERA: That's correct, your Honour.

PN3

MS THOMSON: Yes, your Honour.

PN4

JUSTICE ROSS: I have all the members of the Full Bench with me. We issued a statement yesterday trying to come to grips with an issue that had arisen around the preparedness of the three witnesses to be called by RCI to attend in person to give evidence. They've made a request to give their evidence by telephone, and we put forward some options in that regard. We have since received correspondence from United Voice, indicating that their general position is that it's preferable that witnesses give evidence either in person or by video link, but in the interests of this matter proceeding efficiently they withdraw their objection to the witnesses appearing by telephone.

PN5

I just want to touch on a couple of issues relating to that. The first is that the proceedings are to commence at 9.30 on Monday, 26 November. Mr Ward, what would be the order in which you would propose calling these witnesses, commencing at 9.30 on that Monday?

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MR WARD: I have to confess a little bit of confusion there. The witnesses are told to make themselves available for - some of the witnesses were told to make themselves available for the Sunday. Would they be then required at the proceedings on Monday as well?

PN7

JUSTICE ROSS: No, I've just said Ms Dabarera has withdrawn her objection to the witnesses giving evidence by telephone. That being the case, they can give evidence by telephone on the Monday morning.

PN8

MR WARD: If that's the case I would need to go away and confer with the witnesses. At present they're of the understanding that their appearance is required at the Magistrates' Court or Commission. I have one witness that confirmed her ability to attend. Another has given a preliminary indication just pending a check of her schedule.

PN9

JUSTICE ROSS: All right. Which witness has confirmed they can attend?

PN10

MR WARD: Chris Bunder.

PN11

JUSTICE ROSS: Well, we'll leave Chris Bunder - - -

PN12

MR WARD: He's in South Australia.

PN13

JUSTICE ROSS: We'll confirm that. We'll hear Chris Bunder's evidence by video link from the court link in the Magistrates' Court.

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MR WARD: That was on the Monday anyhow.

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JUSTICE ROSS: That's right, at 10 am South Australian time, 10.30 Sydney time. So we'll confirm that.

PN16

MR WARD: Terrific. I'll lock that one in.

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JUSTICE ROSS: In relation to Mr Day and Mr Brailey, the position now is that United Voice has withdrawn the objection to have those witnesses give their evidence by telephone. That being the case, there's no need for them to do that on the Sunday or at the times indicated by video link. So really what I need to know is when on the Monday morning they would be available to give their evidence by telephone.

PN18

MR WARD: Mr Brailey had made arrangements to be available on the Sunday and now has plans on the Monday. Mr Day I am waiting for the confirmation as to his schedule preferences.

PN19

JUSTICE ROSS: So Mr Brailey can attend on the Sunday at the Commission at 6 pm?

PN20

MR WARD: Yes, that's correct.

PN21

JUSTICE ROSS: Right. Mr Day, have you heard anything from him?

PN22

MR WARD: No, I haven't been able to get a hold of him at this point. I've left voicemail messages and emails but I'm still waiting to hear back from him.

PN23

JUSTICE ROSS: Right, well, how we'll deal with Mr Day is this; that he can give his evidence by telephone on the Monday morning. He can do that at a time other than between 10.30 and 11. So in other words, he can do it from 9.30, and that would be preferable. So I want you to see what his availability is to give his evidence by telephone on the Monday. If he's not available at all on the Monday to give his evidence by telephone, we'll issue a direction that he attend by video conference in one of the two options that we have identified, okay?

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MR WARD: Terrific.

PN25

JUSTICE ROSS: So we want to give him the option, it's more convenient to him, I gather, that's what he wanted to do, to give his evidence by telephone and as you've known for a while, this matter was going to be heard on the 26th, so it will be reasonable to assume that's when he'd be giving that telephone evidence. So if you can - so we'll proceed on this basis, to confirm. Frances Brailey - yes?

PN26

MR WARD: Sorry, I was just going to say. Seems as though there still are a few items up in the air that I need to come back and confirm, would it also be helpful to go to Mr Brailey and put to him that the other witnesses will be on the Monday and can he perhaps shuffle things around?

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JUSTICE ROSS: You could give him that option, yes.

PN28

MR WARD: If it would be preferable for the Commission to deal with all witnesses - - -

PN29

JUSTICE ROSS: Well, no, I agree and it is, you know, it's an extra cost for us to have the premises opened on a Sunday, so we're only trying to accommodate the circumstances of your witness. So yes, I think it would be desirable if you go back to Mr Brailey and Mr Day, but what I'm looking for is specific times that they will give their evidence on the Monday, okay? Understanding that Mr - Chris Bunder will be giving her or his evidence at 10.30 Sydney time on the Monday.

PN30

Now just before we - I'll come back to you in a moment, Mr Ward. Ms Dabarera, I'm assuming that you're not likely to be much more than half an hour in cross-examination of each of these witnesses.

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MS DABARERA: Your Honour, our estimate was about 40 minutes, so yes half an hour to 40 minutes should be fine.

PN32

JUSTICE ROSS: Right. Well, you've heard that, Mr Ward, so what I want you to do is to find a witness, either Brailey or Day that's available at 9.30 Sydney time on Monday, and the other one, let's assume for example Day's available at 9.30, then we've got Bunder at 10.30 and then at 11.30 we can have Brailey, okay?

PN33

MR WARD: Certainly.

PN34

JUSTICE ROSS: Now if that doesn't work, I want you to get back to my chambers in writing confirming that by 12 o'clock tomorrow, or we'll reschedule a mention and we'll have to explore the option of the video link on the Sunday, okay?

PN35

MR WARD: Not a problem.

PN36

JUSTICE ROSS: Right, so you're clear about that?

PN37

MR WARD: Yes, (indistinct) by 12.30 tomorrow.

PN38

JUSTICE ROSS: Right. I also want to make it clear that it's your responsibility, because the witnesses are going to be appearing by telephone, you need to provide us with contact numbers on which they're going to be available at that time, and you're responsible for making sure that they're available at that time, okay?

PN39

MR WARD: Yes.

PN40

JUSTICE ROSS: If they're not available and we can't contact them, then I regret to say we wouldn't be able to take their evidence into account, because they've been required for cross-examination but have not been available for that purpose, all right?

PN41

MR WARD: Understood, yes.

PN42

JUSTICE ROSS: Can I just touch on a couple of other things while I have you here. I granted an extension for United Voice and the hospitality employers I think to file by 4 pm today where they were up to in relation to the matters that were agreed and the matters in dispute. I think United Voice also was to file any documentary material it wished to rely on in support of its tool allowance claim. Has that been done, Ms Dabarera or is that part of the same application for the extension?

PN43

MS DABARERA: Your Honour, in respect of the additional material, we haven't filed any further material and we won't be filing any further material.

PN44

JUSTICE ROSS: No, that's fine, thank you. ABI was to file a short written submission outlining their position in respect of the claims. Has that been done, Ms Thomson?

PN45

MS THOMSON: Yes, it has, your Honour, yesterday afternoon.

PN46

JUSTICE ROSS: Thank you very much. I think there's only one other matter, Mr Ward, that I need to bring to your attention and that relates to some orders that Lee C made on Friday.

PN47

MR WARD: Yes.

PN48

COMMISSIONER LEE: Mr Ward, it's Lee C. Just a reminder that - well first perhaps I'll just check you received copies of the orders that were made subsequent to the hearing the other day?

PN49

MR WARD: Yes.

PN50

COMMISSIONER LEE: So just a reminder that they need to be complied with by 4 pm tomorrow.

PN51

MR WARD: Certainly.

PN52

COMMISSIONER LEE: Yes, and also a reminder that you recall that in the exchange that we had at the Commission proceedings about the making of that order, I indicated that the - I was prepared and there was no contest from United Voice to make a confidentiality order over the financial material that would be in any annual profit and loss statement, that was provided by each of the three witnesses. Just a reminder that I will make that - I will be making that order and you can remind your witnesses of that. Obviously I'll be making the order once I actually see a copy of any profit and loss statement that's provided. Any profit and loss statement that is provided, just so you understand, we won't publish upon its receipt until I've dealt with the confidentiality order, okay?

PN53

MR WARD: Thank you. The supporting evidence pertaining to Mr Brailey's statement about the labour costs and related expenses, I think they should be contained in those documents anyhow but we would also ask that the extension of the confidentiality be granted towards that as well.

PN54

COMMISSIONER LEE: All right, well, that wasn't canvassed the other day, was it?

PN55

MR WARD: It should be contained in the same set of documents. Just if they are separate we would ask - - -

PN56

COMMISSIONER LEE: Right, well, look, if you can make - - -

PN57

MR WARD: - - - that it be extended to cover all financial data.

PN58

COMMISSIONER LEE: Sure. Look, I'm assuming there would be difference in the attitude from you to that Ms Dabarera?

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MS DABARERA: Commissioner, yes, we would have the same attitude in respect that we would not oppose a confidentiality order being made provide we would have access to the documents.

PN60

COMMISSIONER LEE: Yes, of course. Well, look, if you could just make it clear in writing, Mr Ward, what it is that you seek to have made confidential along with the documents when they're provided.

PN61

MR WARD: Certainly. Just by way of clarification as well on the issue of the junior employees serving alcohol. The specific documentation for this we could have produced detailed contracts, RSAs, things like that which would be quite burdensome to the Commission. What I proposed in lieu of that is that each witness compile a register with the names, the ages and all that required data of the employees, whether they serve alcohol. That might be of better assistance to the Commission rather that providing employment contracts, RSAs and more detailed documentation.

PN62

COMMISSIONER LEE: And that would be responsive to, for example, in the Brailey statement order, 6(a) and (b) would it?

PN63

MR WARD: Yes, that's correct. There's similar requirements for each witness.

PN64

COMMISSIONER LEE: Right. Just be aware that the order is for primary source records - - -

PN65

MR WARD: Certainly.

PN66

COMMISSIONER LEE: - - - where appropriate summaries can be provided, that you need to be prepared to be tested on that if you're not providing - - -

PN67

MR WARD: Certainly. We can have those available if required but to be of assistance (indistinct) Commission, I've suggested that a summary table might be of better assistance.

PN68

COMMISSIONER LEE: Right.

PN69

JUSTICE ROSS: Right, well, thank you to each of you. Was there any - do any of you have any questions or anything that you wish to say before I conclude the mention?

PN70

MR WARD: Nothing from RCI.

PN71

JUSTICE ROSS: Thank you. Ms Thomson?

PN72

MS THOMSON: No, thank you, your Honour.

PN73

JUSTICE ROSS: Ms Dabarera?

PN74

MS DABARERA: Nothing further, your Honour.

PN75

JUSTICE ROSS: Thank you very much. I'll conclude the mention and we'll hear from you by 12.30 tomorrow, Mr Ward.

PN76

MR WARD: Thank you.

PN77

JUSTICE ROSS: Thank you, bye.

ADJOURNED INDEFINITELY [12.45 PM]