PN1

JUSTICE ROSS: Please be seated. Can I have the appearances, please, firstly in Melbourne.

PN2

MS S BURNLEY: Yes, if the Commission pleases my name is Burnley, initial S, and I appear for the Shop, Distributive and Allied Employees Association.

PN3

JUSTICE ROSS: Thanks, Ms Burnley.

PN4

MR M TINDLEY: Good afternoon, your Honour, Tindley, initial M, of FCB, appearing on behalf of the ARA. I am not sure, your Honour, whether we need to seek permission to appear given this is a continuation of a process where permission has been granted, but I will seek permission in any event.

PN5

JUSTICE ROSS: In any event the rules now prescribe that you don't seek permission in a modern award review matter. And in Sydney?

PN6

MR J ARNDT: If the Commission Arndt, initial J, appearing for ABI and New South Wales BC.

PN7

JUSTICE ROSS: Thank you, Mr Arndt. We issued amended directions on 12 February requiring the submissions and evidence in support of the claims before us be filed by 5 June. I just want to check what has been done in response to those directions. We received a submission from the SDA. Ms Burnley, on the face of it that submission appears to be limited to the claim to limit junior rates to the classification level 1 only, and it's supported by an expert report of Dr Martin O'Brien. Is that the case?

PN8

MS BURNLEY: Yes, that is correct, your Honour.

PN9

JUSTICE ROSS: Can you just refresh my memory. In a report issued on 21 December last year at that stage the SDA was pursuing four claims. One of them is the one addressed in your submission, the junior rates issue. The other three related to hours of work, public holidays and classifications. Do I take it that those claims are no longer pressed?

PN10

MS BURNLEY: Yes, that's correct, your Honour.

PN11

JUSTICE ROSS: I understand from the correspondence that has been received that there are no employer claims that are being pressed. Is that the case, Mr Tindley and Mr Arndt?

PN12

MR TINDLEY: Yes, your Honour.

PN13

MR ARNDT: I believe so, your Honour.

PN14

JUSTICE ROSS: All right. The evidentiary case is confined to the expert report of Dr O'Brien. Is Dr O'Brien being sought for cross-examination. Mr Arndt?

PN15

MR ARNDT: At this stage, yes, your Honour, for a limited period at least.

PN16

JUSTICE ROSS: All right. And Mr Tindley?

PN17

MR TINDLEY: Yes, your Honour, we intend to cross-examine Dr O'Brien.

PN18

JUSTICE ROSS: All right. Submissions in reply were to be filed by 26 August. I have seen and read a copy of the ABI's submissions filed in which it opposed the claim, but does not seek to adduce any evidence in response. Has there been any submission filed by the retailers?

PN19

MR TINDLEY: No, your Honour.

PN20

JUSTICE ROSS: What are you proposing to do about your non-compliance with the directions?

PN21

MR TINDLEY: Your Honour, we weren't intending to file a submission. We have read ABI's submission and we agree with and adopt that submission. Our intention is to briefly cross-examine Dr O'Brien and make some brief comments in oral submissions.

PN22

JUSTICE ROSS: All right. As long as in oral submissions you're not canvassing an argument that's not covered in ABI's material. I am just conscious of making sure the SDA knows the case that it's got to respond to. The matter was originally listed for 7 and 8 October. It seems very unlikely we will require the two days. I was proposing to sit on 8 October only. I also understand that 7 October is a public holiday in New South Wales. So probably having it on the 8th would suit everyone. Is there any opposition to that course? No?

PN23

MR TINDLEY: No, your Honour.

PN24

JUSTICE ROSS: We will deal with Dr O'Brien's evidence at the commencement of the proceedings on 8 October at 9.30 am. I think at this stage the Bench will be in Sydney. Any requests for video conference put them through to my chambers. Dr O'Brien, I am not sure where he's based, Ms Burnley, but - - -

PN25

MS BURNLEY: He's based in Wollongong, your Honour.

PN26

JUSTICE ROSS: Okay.

PN27

MS BURNLEY: Depending where the Bench is sitting that's where he will appear.

PN28

JUSTICE ROSS: All right. Sydney is probably the convenient location for that. Even in the event that he is not, or the cross-examination might fall away I think you should work on the assumption that he should attend in the event that on closer examination of the report the Bench has some questions for him. I will leave it to Mr Arndt and Mr Tindley to confer amongst themselves about the line of cross-examination so that the witness isn't effectively cross-examined twice in relation to the same issues and just so that we can deal with it as efficiently as possible. All right. Is there anything further, any questions? Is everything clear?

PN29

MS BURNLEY: Your Honour, just one question regarding the witness. If it's possible for the employers at some stage just to give an indication as to how long they might require Dr O'Brien so that he can schedule his day.

PN30

JUSTICE ROSS: Certainly. I had taken it from what - and I can give an indication - I think if he gets here at 9.30 he will be out by 11, probably at the latest. Do either of the employer advocates take a different view?

PN31

MR TINDLEY: No, your Honour.

PN32

MR ARNDT: No, your Honour.

PN33

JUSTICE ROSS: All right. I am not seeking to confine you, but when you mentioned, Mr Arndt, you had a few questions and Mr Tindley said the same I didn't apprehend it was going to take much more than an hour and a half. Bearing in mind his evidence-in-chief is his statement I would be surprised if it took longer than that, but certainly he won't go past the morning, Ms Burnley, if that assists.

PN34

MS BURNLEY: Yes, it does, your Honour, thank you.

PN35

JUSTICE ROSS: All right. Anything further?

PN36

MR TINDLEY: Your Honour, just one thing from our end, and I noted in the submissions of both the SDA and ABI there was a reasonable amount of time or effort spent on the nature of the review. I do recall however that in the casual penalty rates case that the Commission issued a document which sought to summarise the legislative framework and I believe both the ARA and the SDA adopted that as an accurate framework. It may avoid any kind of further debate about the framework if that document was adopted in these proceedings.

PN37

JUSTICE ROSS: I can circulate the document - well, certainly Mr Arndt will have seen recently an aged care and SCHADS. I don't think there's anything controversial about that. The only issue that arises here that is different is the work value debate around the sections there. I don't think there is anything between the parties on the nature of the review, but I will issue a short background document along the lines that we have done in previous cases and hopefully will limit the argument about that issue and focus on the merit and the particular legislative provisions relating to this particular application. All right?

PN38

MR TINDLEY: Thank you, your Honour.

PN39

JUSTICE ROSS: Nothing further? Thank you all for your attendance, I will see you at 9.30 am on 8 October in Sydney. If you need a video facility please let my associate know. Thanks. I will adjourn.

ADJOURNED UNTIL TUESDAY, 08 OCTOBER 2019 [1.11 PM]