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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
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
COMMISSIONER LEE MELBOURNE, 7 AUGUST 2015
4 yearly review of modern awards – penalty rates – revised 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 awards as part of the 4 yearly review of
modern awards. A Statement and agreed directions in this matter were issued on 3 March
2015 following extensive consultation.
[2] On 24 July 2015 correspondence was received from the Shop, Distributive and Allied
Employees Association and United Voice (jointly ‘the Unions’) seeking significant variations
to the directions issued on 3 March 2015. The Unions note that some of the Employer parties
had not complied with the directions, in that two of the statements from expert witnesses were
filed one week late, and they expressed concern that there would be insufficient time to deal
with all expert and hospitality evidence during the 14 sitting days scheduled in September.
Among other changes, the alternative directions proposed by the Unions are:
to defer the expert evidence from September to December;
to add two additional hearing dates in early December;
to include an additional final written submission process in early 2016; and
to provide up to three additional hearing days after 23 February 2016.
[3] A mention was held at 9.00 am on Wednesday 5 August 2015 in relation to the
scheduling for the hearings of the expert and hospitality evidence listed for 8 to 25 September
2015. The mention dealt with the correspondence referred to at paragraph 2 above; the
sequence of witnesses and the venue for the hearings scheduled for 8 to 25 September 2015;
the process for dealing with any objections to the evidence filed; and various requests for the
production of certain documents. Following the mention correspondence was received from a
number of parties dealing with their availability and the availability of their witnesses. The
transcript of the mention hearing and all of the correspondence is available on the
Commission’s website.
[2015] FWCFB 5357
STATEMENT AND REVISED
DIRECTIONS
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage-overview/am2014305-penalty
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC1482.htmhttps:/www.fwc.gov.au/documents/decisionssigned/html/2015FWC1482.htm
[2015] FWCFB 5357
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[4] We have had regard to the views expressed by all interested parties. It is apparent on
the material before us that the 14 days presently allocated for hearing the expert evidence and
the hospitality lay evidence (8 to 25 September 2015 inclusive) may not be sufficient. On
present indications there will be 16 expert witnesses and in excess of 80 lay witnesses. We
also note that some of the employer parties did not comply with the directions in relation to
the filing of their expert evidence – two of the four expert witness statements were filed one
week late. This non-compliance with directions requires some amendment to the directions
issued on 3 March 2015 to ensure that other parties are not disadvantaged.
[5] We have decided to adopt a cautious approach to the revision of the existing directions
given the inherent difficulties in estimating the time required to deal with witness evidence.
We will further review the directions as the case progresses. The effect of the revised
directions we propose to make now is as follows:
(i) United Voice and any other party are to file their notices to produce in respect
of the lay hospitality witnesses by 4.00 pm Monday 17 August 2015. A
hearing will be held at 9.30 am on Friday 21 August 2015 to deal with any
objections to the notices to produce.
(ii) A further mention will be held at 9.00 am on 27 August 2015. This mention
will deal with the order of the witnesses during the hearing scheduled for
8 to 25 September 2015, inclusive, and the venue for the hearing. At this stage
it is anticipated that the allotted hearing days will be split between Sydney and
Melbourne, with video links as required. The parties are encouraged to discuss
the scheduling of witnesses and the venue for the hearing, prior to the mention.
The Commission’s intention is to deal with the lay hospitality evidence first
and, if time permits, as much as the expert evidence as possible during this
sitting period. (see (vii) and (ix) below).
(iii) Any objection/s by any party to any of the lay hospitality evidence are to be
filed by 4.00 pm Friday 28 August 2015. Parties should set out the aspect of
the evidence which is the subject of the objection, the nature of the objection
and a short submission in support of the position put (including a reference to
any relevant authorities). Any objections to the lay hospitality evidence filed
will be dealt with at the commencement of the proceedings on Tuesday
8 September 2015.
(iv) The Union expert evidence and common material is to be filed by 4.00 pm
Friday 4 September 2015.
(v) By 4.00 pm Friday 4 September 2015 all parties are to file the specific
findings they submit the Commission should make based on the statement of
each particular expert upon which they rely and the proposed findings they
seek based on any common material or survey evidence they have filed.
(vi) The Employer expert evidence in reply is to be filed by 4.00 pm Wednesday
16 September 2015.
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(vii) The hearings scheduled for Tuesday 8 September 2015 to Friday 25 September
2015 (inclusive) will deal first with the lay hospitality evidence and, if time
permits, as much of the expert evidence as possible.
(viii) Any objection/s by any party to any of the expert evidence are to be filed by
4.00 pm Tuesday 8 September 2015. Parties should set out the aspect of the
evidence which is the subject of the objection, the nature of the objection and a
short submission in support of the position put (including a reference to any
relevant authorities). Any objection to the expert evidence filed will be dealt
with at the commencement of the proceedings on Thursday 17 September
2015.
(ix) The timing of the hearings to deal with the expert evidence depends to some
extent on whether the lay evidence in the hospitality part of the case requires
the whole of the period currently allocated for that purpose requires all of the
14 hearing days allocated for that purpose (8 to 25 September inclusive). In the
event that all of the currently scheduled time is not required for the lay
hospitality evidence then we would propose commencing the expert evidence
towards the end of that period (i.e. likely to be in the last scheduled week
Monday 21 September to Friday 25 September 2015 inclusive). We will be
unable to confirm whether those dates are available for the expert evidence
until we have heard at least some of the lay evidence. We will consider this
issue further at the commencement of the proceedings on Thursday
17 September 2015, or earlier if practicable. We also propose to reserve
further dates for the hearing of expert evidence to be used if required. The
reserved dates are: 30 September to 2 October (inclusive) and 4, 5 and
6 November 2015 (inclusive). The employer expert evidence will be heard
first.
[6] Revised directions are now attached.
[7] As mentioned in the Statement issued on 3 March 2015, it is important that all parties
comply with the various deadlines for filing material set out in the directions.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR570470
[2015] FWCFB 5357
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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
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
COMMISSIONER LEE MELBOURNE, 7 AUGUST 2015
It is directed that:
The following revisions are made to the directions issued on 3 March 2015 ([2015] FWC
1482):
1. On or before 4.00 pm on Monday, 10 August 2015 each union party is to file their
hospitality lay evidence and an outline of submissions and the findings they submit
the Commission should make based on the hospitality lay evidence they have filed.
2. On or before 4.00 pm on Monday, 10 August 2015 each employer party is to file
retail lay evidence and an outline of submissions and the findings they submit the
Commission should make based on the retail lay evidence they have filed.
3. On or before 4.00 pm on Monday 17 August 2015 United Voice and any other party
are to file their notices to produce in respect of the lay hospitality witnesses. A hearing
will be held at 9.30 am on Friday 21 August 2015 to deal with any objections to the
notices to produce.
4. The matter will be listed for further mention at 9.00 am on 27 August 2015. This
mention will deal with the order of the witnesses during the hearing scheduled for
8 to 25 September 2015, inclusive, and the venue for the hearing. At this stage it is
anticipated that the allotted hearing days will be split between Sydney and Melbourne,
with video links as required. The parties are encouraged to discuss the scheduling of
witnesses and the venue for the hearing, prior to the mention. The Commission’s
intention is to deal with the lay hospitality evidence and, if time permits, as much as
the expert evidence as possible during this sitting period.
REVISED DIRECTIONS
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC1482.htmhttps:/www.fwc.gov.au/documents/decisionssigned/html/2015FWC1482.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC1482.htmhttps:/www.fwc.gov.au/documents/decisionssigned/html/2015FWC1482.htm
[2015] FWCFB 5357
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5. Any objection/s by any party to any of the lay hospitality evidence are to be filed by
4.00 pm on Friday 28 August 2015. Parties should set out the aspect of the evidence
which is the subject of the objection, the nature of the objection and a short
submission in support of the position put (including a reference to any relevant
authorities). Any objection/s to the lay hospitality evidence filed will be dealt with at
the commencement of the proceedings on Tuesday 8 September 2015.
6. On or before 4.00 pm on Friday 4 September 2015 each union party is to file expert
evidence and common material.
7. On or before 4.00 pm on Friday 4 September 2015 all parties are to file the specific
findings they submit the Commission should make based on the statement of each
particular expert upon which they rely and the proposed findings they seek based on
any common material or survey evidence they have filed.
8. Any objection/s by any party to any of the expert evidence are to be filed by
4.00 pm Tuesday 8 September 2015. Parties should set out the aspect of the evidence
which is the subject of the objection, the nature of the objection and a short
submission in support of the position put (including a reference to any relevant
authorities). Any objection to the expert evidence filed will be dealt with at the
commencement of the proceedings on Thursday 17 September 2015.
9. The matter will be listed for hearing in relation to hospitality lay evidence before a
Full Bench from Tuesday 8 September 2015 to Friday 25 September 2015
(inclusive). Each hearing day will commence at 9:30am, unless otherwise notified. In
the event that the 14 hearing days allocated are not required to deal with the lay
hospitality evidence, the hearing of expert evidence will commence. The employer
experts will be dealt with first.
10. On or before 4.00 pm on Wednesday 16 September 2015 each employer party is to
file reply evidence from the employer experts.
11. The following days are reserved for the hearing of the expert evidence, if required:
30 September to 2 October 2015 (inclusive) and 4, 5 and 6 November 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.
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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.
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 by subject (7 August 2015)
Common
4 September
2015
Expert evidence—Closing date for
filing expert evidence and common
material—union parties
4 Sep 2015 Closing date for filing specific findings
sought based on expert evidence and
the proposed findings sought based
on common material or survey
evidence filed—all parties
8 Sep 2015 Expert evidence—Closing date for
filing of any objection to any of the
expert evidence—all parties
16 Sep 2015 Expert evidence—Closing date for
reply evidence from employer experts
17 Sep 2015 Hearing of any objections to the
expert evidence
21–25 Sep
2015
Hearing of Expert evidence if dates
available
28 Sep–2 Oct
2015
4, 5 and 6 Nov
2015
Expert evidence—hearing dates
tentatively reserved
Hospitality
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
17 Aug 2015 Hospitality—United Voice and any other
parties are to file their notices to produce in
respect of the lay hospitality witnesses.
21 Aug 2015 Hospitality – Hearing in relation to
objections to any notices to produce filed
27 Aug 2015 Hospitality—Further mention—to deal with
matters relating to the hearing scheduled
8–25 September
28 Aug 2015 Hospitality—Closing date for filing of any
objections by any part to lay hospitality
evidence—all parties
8 Sep 2015 Hearing of any objections to the lay
hospitality evidence
8–25 Sep 2015 Hospitality—Evidentiary hearing lay witness
(expert evidence may be called depending
on period required for lay evidence)
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
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] FWCFB 5357
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