PN1

THE VICE PRESIDENT: Yes, can I take the appearances, starting in Melbourne. Ms Burnley, you appear for the SDA?

PN2

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

PN3

THE VICE PRESIDENT: Mr Tindley, you appear for the Australian Retailers Association and Master Grocers Association?

PN4

MR TINDLEY: That's correct, your Honour.

PN5

THE VICE PRESIDENT: In Newcastle, Ms O'Brien you appear for the Ai Group?

PN6

MS O'BRIEN: Yes, your Honour.

PN7

THE VICE PRESIDENT: Ms Burnley, how do you want to progress this matter?

PN8

MS BURNLEY: Yes, your Honour, this was an application - well, this was a matter arising out of the penalty rates decision of 23 February 2017 and it had some preliminary directions issued last year to adjourn due to the jurisdictional review that the SDA ran about that decision. So the SDA has requested that this matter regarding casual evening penalties and casual Saturday penalties in the General Retail Industry Award be called back on for programming and directions et cetera.

PN9

Mr Tindley has just approached prior to the hearing today to mention that they might - that they're wanting to have a conference with the SDA, regarding a few other matters as well, which I don't have any directions on as such. We're willing to see whether we can accommodate that in the short term, there is a few complications from the SDA's perspective. So we're a little bit - we might need to adjourn today's proceedings to accommodate that conference Mr Tindley says he would be prepared to have within the next few weeks to see the views of the party. But then we would need this - we would - and I'm debating whether we need to have some directions set in case that conference doesn't succeed in reaching any agreements with the parties on any of the issues which are outstanding (indistinct) and to confirm which course of action parties are wanting to take.

PN10

THE VICE PRESIDENT: Well there's no reason why the conference can't proceed but what are the directions that you seek be made for the programming of the matter?

PN11

MS BURNLEY: For the programming of the SDA's matters it would have been five weeks - there had been directions previously issued - - -

PN12

THE VICE PRESIDENT: Yes.

PN13

MS BURNLEY: - - - to a degree. We would seek something along similar lines.

PN14

THE VICE PRESIDENT: So five weeks you say.

PN15

MS BURNLEY: Yes, five weeks for the SDA to file submissions, for an outline of submissions, in which time there would be further - the employers would then consider their position at the previous hearing.

PN16

THE VICE PRESIDENT: Sorry, I didn't hear that, Ms Burnley. You're dropping out. Five weeks to file what, just submissions?

PN17

MS BURNLEY: Yes, five weeks to file outline of submissions detailing which - what material we would be relying upon or how extensive our case would be in the matter. We are of the view, the SDA, that the case wouldn't be extensive as such, there's been a preliminary finding by the Full Bench decision and we would be seeking to implement that in regards to the GRIA. So we don't think it's a full blown penalty rates case that has been previous run with regard to these issues. I'm not too sure where - - -

PN18

THE VICE PRESIDENT: What about evidence?

PN19

MS BURNLEY: We suspect there'd be very little, if any, evidence for this matter. It is just about whether - it's about equity, about the appropriateness of what the loadings are paid for between the penalty loading and the casual loading, so we don't think there would be a case for evidence per se. We could bring in lots of employees who say they want to be paid more but that's not very probative as such. I don't think we'd find too many employees who'd come along and say they didn't want to be paid more.

PN20

THE VICE PRESIDENT: Well Ms Burnley it's entirely a matter for the SDA as to what case it presents but in any event you say you can put on the case you want to present in terms of outline, submissions and evidence, if any, within five weeks?

PN21

MS BURNLEY: Yes, your Honour. Your Honour - - -

PN22

THE VICE PRESIDENT: All right. And the proposed conference is just between the parties directly or involving the Commission?

PN23

MS BURNLEY: It would be just between the parties directly. One question, your Honour, is that originally this matter was to be allocated back to the Penalty Rates Full Bench, that's where it was allocated so that the initial findings that had been found in that matter and to provide that there was some uniformity of decisions it would be dealt with the same Full Bench. I'm not too sure - - -

PN24

THE VICE PRESIDENT: Well I can simply tell you the President's constituted another Full Bench for the purpose of this matter, Ms Burnley.

PN25

MS BURNLEY: All right, thank you, your Honour, for that clarification. We will draft our submissions accordingly but rely on the indication from the Penalty Rates Full Bench as to what their position they had adopted with regard to casual rates and penalties was.

PN26

THE VICE PRESIDENT: Thank you. Mr Tindley.

PN27

MR TINDLEY: Your Honour, in terms of what Ms Burnley's proposed, that is five weeks for the SDA, as a proponent in relation to the casual penalty issue we have no issue with that. We are also a proponent in relation to the Sunday shift worker penalty rates and we would be able to provide our submission then any evidence within that five week period that's proposed. The question I guess then, your Honour, turns to reply.

PN28

THE VICE PRESIDENT: Yes.

PN29

MR TINDLEY: We would seek a period of six weeks from the date of the SDA submission being provided to provide our reply. Our task - we say we're only asking for a slightly longer period. We also say that our task is greater in that we're likely to be calling on evidence in greater detail than the SDA.

PN30

THE VICE PRESIDENT: Right. Well, to the extent that either in support of the shift work claim or in response to the SDA claim you would adduce evidence, what implications does that have for the length of the hearing that might be required?

PN31

MS BURNLEY: I think, your Honour, it would be, depending on the timetabling I would assume that the casual case would be rather short. There might be some concessions made regarding what type of witnesses the ARA is proposing to provide. As Ross J indicated at the last mention was that if it was all about the costing issue then that might be able to be dealt with rather briefly in a condensed manner if that is the extent of that evidence that is going to be provided regarding the casual matter. With regard to the shift loading case, that will be a longer proceeding and the SDA will probably require more time than six weeks because we haven't had any indication from the employers about what type of case they are going to be running in that matter, and the SDA will be at this stage running a strong case against that.

PN32

THE VICE PRESIDENT: Well assuming the two matters are heard together can anyone give me their best estimate as to how long should be set aside for the hearing of the matter?

PN33

MR TINDLEY: Your Honour, my view would be that we are probably looking at - I apologise for being lacking great specificity with this but I think we're probably looking at somewhere between three and five days. Certainly not longer than five days but there's a question in our minds, and we haven't resolved this, as to the extent of any expert evidence that we may need to call in relation to the casual penalty matter, and therefore the extent of that I think would impact significantly on the extent of the - or the number of days required for hearing. But we would say at this point we don't envisage it being more than five days and would expect it would be somewhere between three and five.

PN34

THE VICE PRESIDENT: Do you disagree with that, Ms Burnley?

PN35

MR TINDLEY: I should say for Ms Burnley's benefit we don't see - our approach to the shift worker penalty matter is likely to be quite similar to the SDA's approach to the casual penalty matter, in that there are - it is a matter of predominantly submissions. There may be a level of evidence about cost implications but it is about the two pools for which a weekend shift penalty is drawn, how one of those pools has changed which should cause the other pool to change - should cause the overall combination of the pools for shift workers to change.

PN36

THE VICE PRESIDENT: Ms Burnley, do you disagree with the estimate of three to five days to hear both matters?

PN37

MS BURNLEY: I possibly do. I'm just cautious, your Honour, just given past experience with these matters and at this stage there's been no mention previously regarding the shift work matter per se. It's the extent of the evidence that's going to be relied on or the case that was going to be relied on. I know that the SDA's case hasn't been thought through fully yet because matters have been on hold, however we do see it as being different to the penalty rate case that has been run. So I would - I think it's probably more likely to be eight days if we've got both matters running at the same time. I think that the SDA will be having some expert evidence in that matter, I guess it depends on the length of the cross-examinations that will appear or become - be forthcoming?

PN38

THE VICE PRESIDENT: Right, thank you.

PN39

MS BURNLEY: Your Honour, it might be useful if there is some sort of timetable. It might be useful if - the SDA's enunciated what its approach is, if the ARA would also do that, I think if they are going to call any expert evidence then the shift work proceedings will just rely upon the penalty rates matter, that might be useful.

PN40

THE VICE PRESIDENT: I thought Mr Tindley just did that but - - -

PN41

MR TINDLEY: I can probably do that now, your Honour. Yes, I think you're correct, your Honour. It's not our intention at this stage to rely on any expert evidence.

PN42

THE VICE PRESIDENT: Right, thank you. Ms O'Brien, what's your attitude towards these two claims?

PN43

MS O'BRIEN: Your Honour, Ai Group doesn't have any claims in this proceeding and we would be able to comply with the reply timetable in the event that any evidence or submissions were to be made. We would just ask that we would also be notified by the SDA as to the timing of the conference as to when it will take place.

PN44

THE VICE PRESIDENT: Right. Well, if I can just get back to the program. So it appears to me that both the SDA and the ARA can have an outline of submissions and evidence, if any, in support of their claims within five weeks. In terms of evidence in response, noting the SDA's position, is it sufficient that I allow eight weeks in reply? Does anyone anticipate they'd need longer than that?

PN45

MS BURNLEY: Is that eight weeks after the five weeks, your Honour?

PN46

THE VICE PRESIDENT: Yes.

PN47

MR TINDLEY: We're certainly comfortable with that, your Honour.

PN48

MS BURNLEY: At this time that should be appropriate, your Honour. If we needed an extension we'd make sure we applied fairly soon after the outline is provided to us.

PN49

THE VICE PRESIDENT: Ms O'Brien, does that seem sufficient from your organisation's perspective?

PN50

MS O'BRIEN: Yes, your Honour.

PN51

THE VICE PRESIDENT: Look, at this stage I'm inclined to have the matter listed for a period of five days but if as the evidence comes in that needs to be extended well I'll grant liberty to apply for any party who thinks a longer hearing may be required. Is there any particular issue of unavailability that might affect - personal unavailability that might affect the setting of hearing dates?

PN52

MR TINDLEY: There's nothing from my end at this point, your Honour.

PN53

THE VICE PRESIDENT: Ms Burnley?

PN54

MS BURNLEY: I'd have to go away and confirm a couple of things, your Honour.

PN55

THE VICE PRESIDENT: Well can you tell me by the end of the day because it's my intention to make directions and set hearing dates. If we're looking at a timetable which provides for 13 weeks, then we're probably looking at an August hearing at the earliest, or perhaps a July hearing. So if the parties can bear that in mind and if they can advise me of any issue in that respect by the end of the day and then we can set hearing dates.

PN56

MS BURNLEY: Yes, thank you, your Honour.

PN57

THE VICE PRESIDENT: Obviously the same applies to you Ms O'Brien.

PN58

MS O'BRIEN: Yes, your Honour.

PN59

MS BURNLEY: Your Honour, I would just indicate that August is probably preferable for the SDA.

PN60

THE VICE PRESIDENT: For what reason?

PN61

MS BURNLEY: There's a couple of national executive meetings on in July which would mean some people have got commitments, heavy commitments in that month.

PN62

THE VICE PRESIDENT: Anyway, can you specify what those dates are so that I can take those into account but otherwise it will be necessary to accommodate the availability of the Full Bench that's been constituted. Is there anything else that any party wishes to add?

PN63

MR TINDLEY: No, your Honour.

PN64

THE VICE PRESIDENT: Subject to further advice from the parties about any issues of unavailability, the Full Bench will make directions for the filing of evidence and submissions and issue a listing for the hearing dates before the end of the week. Thank you for your attendance and I'll now adjourn.

ADJOURNED INDEFINITELY [11.24 AM]