Fair Work Act 2009
s.156—4 yearly review of modern awards

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.

[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.

(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

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<Price code C, PR570470>

Fair Work Act 2009
s.156—4 yearly review of modern awards

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.

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.

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 [email protected].

ATTACHMENT A—Timetable by subject (7 August 2015)