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Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Penalty rates
(AM2014/305)
JUSTICE ROSS, PRESIDENT MELBOURNE, 3 MARCH 2015
4 yearly review of modern awards – penalty rates – final directions.
[1] The purpose of this statement is to provide further information about the scheduling of
various proposals to vary penalty rates in a number of modern awards as part of the 4 yearly
review of modern awards. It is convenient to refer to these matters collectively as the Penalty
Rates case.
[2] Following a conference held on 12 December 2014 to deal with various programming
and scheduling issues the Commission issued a Statement on 17 December 2014. A further
conference was held on 20 February 2015 to deal with the scheduling of this matter and the
Commission issued a Statement on 23 February 2015 to which a revised draft timetable was
attached. A further conference was convened on 2 March 2015 to finalise the timetable.
[3] Submissions were received from a number of interested parties in relation to the draft
timetable and at the 2 March conference the following amendments were either generally
agreed or not opposed:
(i) The Commission confirmed that the outline of submissions to be filed by
20 April and 1 June is confined to expert evidence only.
(ii) The requirement to file “the list of expert witnesses to be called (including
their qualifications and the nature of their evidence)” is amended to “the list of
expert witnesses to be called (including their qualifications and the nature and
substance of their evidence).” This requirement applies to both employer and
employee parties.
(iii) On the same date by which parties are to file their (non-expert) evidence, they
are also required to file an outline of submissions and the findings they submit
the Commission should make based on the evidence to be filed in relation to
specific awards in the retail/hospitality group. This requirement applies to both
employer and employee parties.
(iv) The proposed date of filing the list of experts for the union parties is changed
from the 1 June 2015 to 15 June 2015.
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STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC1272.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC9175.htm
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(v) Where a party intends to submit survey evidence they must give notice of the
nature of any survey evidence proposed to be relied on. Parties must file an
outline of any survey evidence to be relied on (including information as to the
persons surveyed, the subject matter(s) of the survey, the size and type of the
survey and the organisation/person conducting the survey) by:
(a) 25 May 2015 in relation to hospitality employers; and
(b) 6 July 2015 in relation to retail employers.
[4] Witness statements must not contain submissions or opinion, unless the evidence is
provided by an expert qualified to provide opinion evidence. Prior to the oral hearings the
Full Bench will deal with any objections to the witness statements filed. Material that is
considered to be inadmissible will be struck out.
[5] Further consultation will occur in relation to the timing and location of evidentiary
hearings once the witness statements have been filed.
[6] As stated at the conference, it is important for all parties to comply with the various
deadlines for filing material set out in the attached directions. Any variation to the directions
must be the subject of a written application which will be considered by the Commission.
[7] Final directions are now attached.
PRESIDENT
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[2015] FWC 1482
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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Penalty rates
(AM2014/305)
JUSTICE ROSS, PRESIDENT MELBOURNE, 3 MARCH 2015
It is directed that:
1. On or before 4.00 pm on Monday, 20 April 2015 each employer party is to file in the
Commission the list of expert witnesses to be called (including their qualifications and
the nature and substance of their evidence) and an outline of submissions and the
findings they submit the Commission should make based on the expert evidence to be
filed.
2. On or before 4.00 pm on Monday, 25 May 2015 each party who intends to submit
survey evidence in relation to the hospitality group must file an outline of any survey
evidence to be relied on including information as to the persons surveyed, the subject
matter(s) of the survey, the size and type of the survey and the organisation/person
conducting the survey.
3. On or before 4.00 pm on Monday, 15 June 2015 each union party is to file in the
Commission the list of expert witnesses to be called (including their qualifications and
the nature and substance of their evidence) and an outline of submissions and the
findings they submit the Commission should make based on the expert evidence to be
filed.
4. On or before 4.00 pm on Monday, 29 June 2015 each employer party is to file expert
evidence and common material.
5. On or before 4.00 pm on Monday, 29 June 2015 each employer party is to file
hospitality evidence and an outline of submissions and the findings they submit the
Commission should make based on the hospitality evidence to be filed.
6. On or before 4.00 pm on Monday, 6 July 2015 each party who intends to submit
survey evidence in relation to the retail group must file an outline of any survey
evidence to be relied on including information as to the persons surveyed, the subject
DIRECTIONS
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matter(s) of the survey, the size and type of the survey and the organisation/person
conducting the survey.
7. On or before 4.00 pm on Monday, 10 August 2015 each union party is to file
hospitality evidence and an outline of submissions and the findings they submit the
Commission should make based on the hospitality evidence to be filed.
8. On or before 4.00 pm on Monday, 10 August 2015 each employer party is to file
retail evidence and an outline of submissions and the findings they submit the
Commission should make based on the retail evidence to be filed.
9. On or before 4.00 pm on Monday, 24 August 2015 each union party is to file expert
evidence and common material.
10. On or before 4.00 pm on Tuesday, 1 September 2015 each employer party is to file
reply evidence from employer experts.
11. The matter will be listed for hearing in relation to expert evidence and hospitality
evidence before a Full Bench from Tuesday, 8 September 2015 to Friday,
25 September 2015 (inclusive).
12. On or before 4.00 pm on Monday, 5 October 2015 each union party is to file retail
evidence and an outline of submissions and the findings they submit the Commission
should make based on the retail evidence to be filed.
13. The matter will be listed for hearing in relation to retail evidence before a Full Bench
from Monday, 12 October 2015 to Friday, 30 October 2015 (inclusive).
14. On or before 4.00 pm on Wednesday, 14 October 2015 each employer party is to file
final hospitality submissions.
15. On or before 4.00 pm on Monday, 9 November 2015 each employer party is to file
final retail submissions.
16. On or before 4.00 pm on Wednesday, 25 November 2015 each union party is to file
final hospitality submissions.
17. On or before 4.00 pm on Wednesday, 2 December 2015 each employer party is to
file hospitality submissions in reply.
18. On or before 4.00 pm on Wednesday, 2 December 2015 each union party is to file
final retail submissions.
19. On or before 4.00 pm on Wednesday, 9 December 2015 each employer party is to
file retail submissions in reply.
20. The matter will be listed for hearing before a Full Bench from Monday, 14 December
2015 to Friday, 18 December 2015 (inclusive) in relation to the hospitality and retail
award-specific issues.
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21. Leave is granted to apply generally.
22. All material should be sent to amod@fwc.gov.au.
mailto:amod@fwc.gov.au
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ATTACHMENT A—Timetable (3 March 2015)
20 April 2015 Expert evidence—Closing date for employer parties to file the list of
expert witnesses to be called (including their qualifications and the
nature and substance of their evidence) and outline of submissions
and the findings they submit the Commission should make based on
the expert evidence to be filed
25 May 2015 Hospitality survey evidence—Closing date for filing notice of the
nature of any survey evidence
15 June 2015 Expert evidence—Closing date for union parties to file the list of
expert witnesses to be called (including their qualifications and the
nature and substance of their evidence) and outline of submissions
and the findings they submit the Commission should make based on
the expert evidence to be filed
29 June 2015 Expert evidence—Closing date for filing expert evidence and common
material—employer parties
29 June 2015 Hospitality evidence—Closing date for filing evidence and outline of
submissions and the findings they submit the Commission should
make based on the hospitality evidence to be filed—employer parties
6 July 2015 Retail survey evidence—Closing date for filing notice of the nature of
any survey evidence
10 August 2015 Hospitality evidence—Closing date for filing evidence and outline of
submissions and the findings they submit the Commission should
make based on the hospitality evidence to be filed—union parties
10 August 2015 Retail evidence—Closing date for filing evidence and outline of
submissions and the findings they submit the Commission should
make based on the retail evidence to be filed—employer parties
24 August 2015 Expert evidence—Closing date for filing expert evidence and common
material—union parties
1 September 2015 Expert evidence—Closing date for reply evidence from employer
experts
8–25 September 2015 } Expert evidence—hearing
} Hospitality—Evidentiary hearing
5 October 2015 Retail evidence—Closing date for filing evidence and outline of
submissions and the findings they submit the Commission should
make based on the retail evidence to be filed—union parties
12–30 October 2015 Retail—Evidentiary hearing
14 October 2015 Hospitality—Closing date for filing final submissions—employer
parties
9 November 2015 Retail—Closing date for filing final submissions—employer parties
25 November 2015 Hospitality—Closing date for filing final submissions—union parties
2 December 2015 Hospitality—Closing date for filing submissions in reply—employer
parties
2 December 2015 Retail—Closing date for filing final submissions—union parties
9 December 2015 Retail—Closing date for filing submissions in reply—employer parties
14–18 December 2015 Hospitality & Retail—Final hearings
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ATTACHMENT B—Timetable by subject (3 March 2015)
Common
20 April 2015 Expert evidence—Closing date for
employer parties to file the list of expert
witnesses to be called (including their
qualifications and the nature and
substance of their evidence) and outline
of submissions and the findings they
submit the Commission should make
based on the expert evidence to be filed
15 June 2015 Expert evidence—Closing date for union
parties to file the list of expert witnesses
to be called (including their qualifications
and the nature and substance of their
evidence) and outline of submissions and
the findings they submit the Commission
should make based on the expert
evidence to be filed
29 June 2015 Expert evidence—Closing date for filing
expert & common material—employer
parties
24 August
2015
Expert evidence—Closing date for filing
expert evidence and common material—
union parties
1 Sep 2015 Expert evidence—Closing date for reply
evidence from employer experts
8–25 Sep 2015 Expert evidence—hearing (these dates
include hospitality evidence hearing)
Hospitality
25 May 2015 Hospitality survey evidence—Closing
date for filing notice of the nature of any
survey evidence
29 June 2015 Hospitality evidence—Closing date for
filing evidence and outline of
submissions and the findings they
submit the Commission should make
based on the hospitality evidence to be
filed—employer parties
10 August 2015 Hospitality evidence—Closing date for
filing evidence and outline of
submissions and the findings they
submit the Commission should make
based on the hospitality evidence to be
filed—union parties
8–25 Sep 2015 Hospitality—Evidentiary hearing (these
dates include expert evidence hearing)
14 Oct 2015 Hospitality—Closing date for filing final
submissions—employer parties
25 Nov 2015 Hospitality—Closing date for filing final
submissions—union parties
2 Dec 2015 Hospitality—Closing date for filing
submissions in reply—employer parties
14–18 Dec 2015 Hospitality & Retail—Final hearings
Retail
6 July 2015 Retail survey evidence—Closing date
for filing notice of the nature of any
survey evidence
10 August 2015 Retail evidence—Closing date for
filing evidence and outline of
submissions and the findings they
submit the Commission should make
based on the retail evidence to be
filed—employer parties
5 Oct 2015 Retail evidence—Closing date for
filing evidence and outline of
submissions and the findings they
submit the Commission should make
based on the retail evidence to be
filed—union parties
12–30 Oct 2015 Retail—Evidentiary hearing
9 Nov 2015 Retail—Closing date for filing final
submissions—employer parties
2 Dec 2015 Retail—Closing date for filing final
submissions—union parties
9 Dec 2015 Retail—Closing date for filing final
submissions—employer parties
14–18 Dec 2015 Hospitality & Retail—Final hearings
[2015] FWC 1482
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