PN40

JUSTICE ROSS: Can I have the appearances, please.

PN41

MR W FRIEND: If the Commission pleases, I now appear for the SDA.

PN42

MR J ARNDT: If the Commission pleases, Arndt, initial J, appearing with my colleague, Mr McAuliffe, for ABI and New South Wales BC.

PN43

JUSTICE ROSS: Thank you. And Mr Tindley in Melbourne?

PN44

MR N TINDLEY: Yes, your Honour, Tindley, initial N, on behalf of the Australian Retailers Association.

PN45

JUSTICE ROSS: All right. For reasons you are all aware of, the purpose of this morning's hearing is to deal with Dr O'Brien's evidence, so if you can call Dr O'Brien, Mr Friend.

PN46

MR FRIEND: Thank you, your Honour.

PN47

THE ASSOCIATE: Please state your full name and address.

PN48

DR O'BRIEN: Martin John O'Brien, (address supplied).

<MARTIN JOHN O'BRIEN, SWORN [9.37 AM]

EXAMINATION-IN-CHIEF BY MR FRIEND [9.37 AM]

PN49

Dr O'Brien, could you state your full name, please?‑‑‑Martin John O'Brien.

PN50

And your professional address?‑‑‑My professional address is The Sydney Business School, Faculty of Business, University of Wollongong.

PN51

You are the director of the Centre for Human and Social Capital Research at the Sydney Business School; is that right?‑‑‑Correct.

PN52

You have prepared a report in answer to a letter from A J Macken & Co in relation to this matter; is that right?‑‑‑Yes.

*** MARTIN JOHN O'BRIEN XN MR FRIEND

PN53

You hold the professional qualifications that you have set out in an appendix to that report?‑‑‑Correct.

PN54

Can I take you to paragraph 13 of the report. Is there an error you wish to correct in the second line?‑‑‑Yes, the sentence that begins 'A total of', that should be '160,848' rather than 168.

PN55

Thank you. Subject to that correction, are the contents of that report true and does it express your opinion as to the factual matters that you have stated there?‑‑‑Yes.

PN56

Would you wait there, please, Dr O'Brien.

PN57

JUSTICE ROSS: Thanks, Mr Friend. Do you want to mark the report as an exhibit?

PN58

MR FRIEND: Sorry.

PN59

JUSTICE ROSS: No, that's all right, we will mark that as exhibit SDA1.

EXHIBIT #SDA1 REPORT OF MARTIN JOHN O'BRIEN

PN60

Yes, Mr Arndt?

CROSS-EXAMINATION BY MR ARNDT [9.39 AM]

PN61

Morning, Professor?‑‑‑Morning.

PN62

My name is Julian Arndt. I have some questions to ask on behalf of the New South Wales Business Chamber and ABI. Professor, this isn't the first time you have appeared in the modern award review, is it?‑‑‑In what, sorry?

PN63

This isn't the first time you have appeared in the modern award review?‑‑‑Correct.

PN64

You have been involved in a number of proceedings, haven't you?‑‑‑Mm-hm.

PN65

Have you ever had to deal with the Retail Award before in this review?‑‑‑The Retail Award as far as the penalty rates case was concerned, yes.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN66

Have you, before your involvement in preparing the report, ever had to interpret the award before?‑‑‑The Retail Award?

PN67

The Retail Award?‑‑‑Probably not, no.

PN68

You have never had to apply it in a practical scenario?‑‑‑No.

PN69

Do you have a copy of your report with you?‑‑‑I do.

PN70

Can I take you to paragraph 18 of your report, specifically the last sentence where you talk about a judgment being made?‑‑‑Yes.

PN71

This applies to the report generally, but, in terms of that sentence, that judgment, is that your judgment?‑‑‑Yes.

PN72

Can I take you to paragraph 5 of your report. In the third line, you say:

PN73

Fortunately, the Fair Work Ombudsman publishes a job description of all awards and pay levels.

PN74

?‑‑‑Yes.

PN75

I just want to put to you something. Is it the case that in terms of working out whether a role, as identified in the statistical material, the ABS stuff, correlates with an award-covered role or a role in the award, that you have relied on material from the Fair Work Ombudsman in making that judgment?‑‑‑Can you repeat the question, please?

PN76

Perhaps in a more clear way. In terms of actually working out whether a role identified in the ABS data correlates with a particular classification under the award, you have relied upon information provided by the Fair Work Ombudsman, haven't you?‑‑‑Correct.

PN77

The purpose of your report is to establish, basically, the number of junior employees employed at above level 1 in the Retail Award; that's correct?‑‑‑Yes.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN78

You come up with a number which is around 17,244 employees or persons?‑‑‑Correct, employees.

PN79

Employees. For the purpose of ease, I might just refer to that as your calculation?‑‑‑Mm-hm.

PN80

Go to 2 of your statement or your report, paragraph 2. You say that you had to construct the general retail industry manually from the ABS ANZSIC data?‑‑‑That's correct.

PN81

Just so that I am clear, the source of that data that your report is based on is the census; is that correct?‑‑‑That's correct.

PN82

What year census?‑‑‑2016, the most recent.

PN83

Thank you. Can I take you to paragraph 3. Apologies for jumping around; I promise it will go sequentially from now on?‑‑‑Yes.

PN84

Halfway down that paragraph, you identify a number of ANZSIC classes that are located outside the ANZSIC retail trade division?‑‑‑Correct.

PN85

These categories aren't included in your calculation, are they?‑‑‑Yes, they are included in the calculation.

PN86

Can you explain how that works?‑‑‑Yes. Well, going by the mapping document which is provided in the appendix of the report, that includes the classes within retail trade that are included in the General Retail Industry Award and also includes a number of other classes, as listed in that paragraph 3. So, I have gone to directly those classes that are mentioned in that mapping document and used that for my calculation rather than using Retail Trade Division data.

PN87

I understand. This may just be for my benefit again, but when you say at paragraph 3:

PN88

Unfortunately, most available surveys do not report this four digit ANZSIC class data as the sample size used in most survey are not large enough to produce accurate estimates at this detailed level.

PN89

?‑‑‑Yes.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN90

You are saying that's unfortunate because why?‑‑‑Well, basically, it just narrows it down to one potential data source that we can use to arrive at the estimate. Most of the other data sources that are used for labour force estimates are from a survey and when you need to drill down to that very detailed level of four digits, they simply don't have large enough sample sizes to be of use. So, all I'm saying with that is that the census is the only data source that can be used because it drills down to that detailed level where you can use exactly the same descriptions of retail and the various other classes that are described in the General Retail Industry Award as described by that Fair Work Commission mapping document.

PN91

Understood. Can I give you a copy of the award?‑‑‑Yes.

PN92

Your Honour, does the Bench have copies of the retail award?

PN93

JUSTICE ROSS: Yes.

PN94

MR ARNDT: I have got some copies, if needed.

PN95

Can I take you to paragraph 4 of your report. In the first line, you say:

PN96

The general retail industry explicitly excludes clerks.

PN97

?‑‑‑Yes.

PN98

Why do you say that the General Retail Award explicitly excludes clerks?‑‑‑Well, that's what that Fair Work Commission mapping document says, so that's, again, what I've included as the appendix in my report. This award excludes clerks.

PN99

Have you, in preparing your report, looked at the terms of the award?‑‑‑I did not look at the award, no, I've only looked at the Fair Work Ombudsman description over the various levels of pay.

PN100

Can I take you to a few sections of the award. If you go to page 6, do you see at the bottom of page 6, it gives a definition of the general retail industry?‑‑‑Yes.

PN101

If you go over to page 7, about halfway down the page, it has the words 'But does not include'?‑‑‑Mm-hm.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN102

And then, eight dot points down, it has the words 'clerical functions performed away from the retail establishment'?‑‑‑Yes.

PN103

I don't want to put to you a proposition you are not comfortable in passing comment on, but do you accept that the explicit exclusion in the Retail Award only operates to exclude clerical functions performed away from the retail establishment and not functions performed at the retail establishment?‑‑‑Reading this page, yes, I would agree with that.

PN104

Can I take you to page 59 of the award, which is the retail employee level 1 classification. Can I take you to the second-last dot point?‑‑‑Yes.

PN105

Where it says: 'Clerical Assistants functions level 1?‑‑‑Mm-hm.

PN106

Then, across the page, it talks about 'Indicative job titles which are usually within the definition of a retail employee level 1', the second dot point says, 'Clerical assistant'?‑‑‑Yes.

PN107

Would you accept that you can perform clerical functions where you can be a clerk at level 1 of the award?‑‑‑Yes, according to this, but that's also not consistent with what we have as the Fair Work Commission mapping document, which is what I've used.

PN108

We might come back to that?‑‑‑Which explicitly uses the word 'clerk'. That's what I used as the judgment for that column, that calculation.

PN109

Can I just quickly take you through a few more sections of the award. Can I take you to schedule B at 4.4. That is on page 63. Here we have clerical officer level 2 under a retail employee level 4. Do you accept that you could be a clerk at classification level 4 of the award?‑‑‑Well, it certainly says 'clerical officer'. I don't see the word 'clerk' there.

PN110

Can I put it to you that you can be a clerk under level 4 of the Retail Award?‑‑‑I would not argue with that.

PN111

Can I take you to page 64. Here is retail employee level 6 and, at B.6.3, it lists clerical officer level 3 characteristics. Can I again put it to you that you can be a clerk under level 6 of the award?‑‑‑Yes.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN112

Do you accept that?‑‑‑Yes.

PN113

Page 65, retail employee level 7, and B.7.3, again, clerical officer level 4 is listed. Can I put it to you that you can be a clerk under level 7 of the award?‑‑‑Yes.

PN114

Finally, on page 67, which, at B.8.4, lists clerical officer level 5, can I put it to you that you can be a clerk at level 8 of the award?‑‑‑Yes.

PN115

Can I go to the mapping document and table 1 of your report, which is page 7, I believe?‑‑‑Yes.

PN116

On the first column, seven entries from the bottom, it has clerical assistant?‑‑‑Yes.

PN117

That's a clerk, isn't it?‑‑‑Well, we need a definition of exactly what a clerk is, I believe, to answer that question. So, again, the rationale that I used is going to the Fair Work Commission mapping document that says it explicitly excludes clerks.

PN118

But you didn't go to the award?‑‑‑No, I didn't.

PN119

I understand your evidence to be that you accept that you can be a clerk at levels 4, 6, 7 and 8 of the award; is that correct?‑‑‑Yes.

PN120

Do you accept that by excluding clerks at levels 4, 6, 7 and 8, the number of employees included in your calculation is less than it might have been?‑‑‑Yes.

PN121

Can I take you to 8 of your statement. You talk about removing all four-digit ANZSCO unit groups with 'clerk' in the description?‑‑‑Yes.

PN122

That's just a word search?‑‑‑Yes, essentially.

PN123

So it would remove sales clerks?‑‑‑All of those descriptions of clerk I believe are listed in the subsequent calculations.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN124

But when you say, 'Unit groups with 'clerk' in their description are removed', are you saying that there's a list in your report of all the - - -?‑‑‑Yes, exactly. table 2 and table 3 list all of the descriptions of clerks that are removed in the calculation and that subtotal is provided where I give the calculation, so it would be straightforward to make an adjustment. So, if I look at - if we're concentrating on the juniors - table 3, column 6, 'Clerks' lists all of those descriptions of clerks that I have excluded from the calculations with the total being 1210.

PN125

VICE PRESIDENT HATCHER: Is that what you refer to in paragraph 13?‑‑‑It should be. Correct, column 6 of that calculation.

PN126

Paragraph 12 sets out the total of 26,975 - that's all the people that worked?‑‑‑That's all age groups, correct.

PN127

And then the equivalent in 13 sets out the numbers of those who are juniors?‑‑‑Correct.

PN128

MR ARNDT: There is no differentiation in the listing of clerks as to those clerks that work at the retail establishment or are away from the retail establishment, though, is there?‑‑‑I don't believe that information is available, no.

PN129

Thank you. Moving on, can I take you to paragraph 10 of your report?‑‑‑Yes.

PN130

You say that the Fair Work Ombudsman provides a list of job descriptions that encompass each level of pay within awards?‑‑‑Yes.

PN131

You have outlined that at table 1?‑‑‑Mm-hm.

PN132

Where do these job descriptions come from?‑‑‑The pay calculator in the Fair Work Ombudsman's website.

PN133

You don't have a copy of those - I withdraw that. The pay calculator, when you use it, creates a number of dropdowns as you select certain classifications. Is that what you are talking about?‑‑‑Yes.

PN134

Can I give you a copy of what I have prepared to compile those relevant dropdowns. It's not a glamorous document because it's cutting and pasting from the screen. I just want to make sure that we're using the right materials?‑‑‑They are copies.

PN135

They are copies, sorry, and I might take one for the Bar table, please, Associate.

PN136

You have outlined these at table 1?‑‑‑Yes.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN137

Out of curiosity, why is your list slightly different? For example, I couldn't find loss prevention in the list of level 1 descriptions but I could find it in the pay calculator dropdown?‑‑‑Okay.

PN138

It might be it's updated, I'm not sure?‑‑‑No, my recollection is that I included the same descriptions that I found on that website in that table.

PN139

So there was no forensic decision to change, there's no science as to why they are different in your table as it is in the dropdowns that I have produced?‑‑‑No, the only thing that I could think of is if I found absolutely no ANZSCO unit group description, so, the ones that I've included here have an ANZSCO or the Bureau of Statistics occupation classification next to it. So, the only thing I can think of is the ones where I didn't find anything at all are not included in the table, for example, I think when you go down to the one LPO, for instance.

PN140

Apologies, you will have to take me there again. Which document am I looking at?‑‑‑So level 1, so the second half.

PN141

LPO?‑‑‑Yes, LPO, for instance.

PN142

Okay?‑‑‑That would be an example of where there's nothing in an ANZSCO ABS description of LPO.

PN143

So you haven't included it in your table?‑‑‑That's my recollection, yes.

PN144

If you have got the award in front of you, can I ask you to go to schedule B1, which is at page 59. I appreciate that you have given evidence you didn't review the award in preparing your report, but do you accept that the Ombudsman's descriptions are merely a restatement of what's in the award?‑‑‑Yes, that's what it looks like, yes.

PN145

Going over the page to B.1.3, it says:

PN146

Indicative job titles which are usually within the definition of a Retail Employee Level 1 are -

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN147

Do you accept that the job descriptions provided by the Fair Work Ombudsman which you use in your report don't encompass each level of pay within the awards, as you say they do, but rather that they are indicative job titles which are usually within the definition?‑‑‑Can you restate that question, please?

PN148

Going to paragraph 10 is probably easier. In the second sentence, you say:

PN149

The Fair Work Ombudsman provides a list of job descriptions that encompass each level of pay within the awards.

PN150

?‑‑‑Yes.

PN151

Do you accept that what the Fair Work Ombudsman, in providing this information, is actually doing is just restating the award, which says that they are indicative job descriptions?‑‑‑Yes.

PN152

Staying on paragraph 10 but moving on, you say, in the third-last line:

PN153

A level of judgment is required to match the Fair Work Ombudsman's descriptions to the ANZSCO occupations.

PN154

?‑‑‑Yes.

PN155

I understand what you are trying to do is to remove the level 1 employees from the group of juniors or the wider group of employees. After doing that, did you make any assessment of what was left, so the classifications or the job descriptions in levels 2 to 8 that you were actually counting in your calculation?‑‑‑No, the way I did this was to look for the level 1 and subtracted them, rather than to go through level 2 and above looking for those job descriptions to include them in. Is that - - -

PN156

Yes?‑‑‑Yes.

PN157

So you didn't make any assessment as to whether the people who you were actually counting in your calculation fell within level 2 or 8, you just took out the level 1s?‑‑‑Correct. In terms of, I guess, going back to statistics terminology, we'd call - if you've got an event, the complement of the event is the opposite and, for ease of calculation, sometimes it's a lot easier just to define the opposite and subtract that to arrive at your figure rather than to go through each individual calculation.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN158

Understood. Can you go to page 7 of your report, please. You have mapped the ABS data against the Fair Work Ombudsman's descriptors?‑‑‑Yes.

PN159

Just going down to the person describe as a 'store worker'?‑‑‑Yes.

PN160

In the Fair Work Ombudsman's description?‑‑‑Mm-hm.

PN161

And going to the ANZSCO equivalent unit group, you have got a 'store person'?‑‑‑Yes.

PN162

To get to how many store persons there are, we have to work out how many people entered that on the census?‑‑‑Yes.

PN163

Is it possible that some of those employees who identified themselves as 'store persons' operate forklifts?‑‑‑Possibly.

PN164

Is there any way that we would know?‑‑‑Well, not without asking the individuals filling out the form. I'm assuming that there would be something like a forklift driver or machine operator that could have been an alternative occupation that they chose, but I certainly couldn't get into the thought process of the person filling out the census form to be able to say that a forklift driver would not have filled out that they were a store person.

PN165

It all depends on what they put in the census, doesn't it?‑‑‑My understanding with this is that it goes based upon a description of the job and then they are lining that up with the bands, though it's certainly not as if they list all over the four-digit ANZSCO occupations in the census.

PN166

Can I take you to 18 of your statement, the last paragraph:

PN167

The judgment was made that ANZSCO sales assistant general is most consistent with the description of general retail industry level 1 only.

PN168

Do I take that to mean that it's an assumption of your report, or it's implicit in your report, that there would be no employees above level 1 of the Retail Award in ANZSCO sales assistant general class?‑‑‑Again, can you repeat that, please?

PN169

At paragraph 18, you say:

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN170

The judgment was made that ANZSCO sales assistant general is most consistent with the description of general retail industry level 1 only.

PN171

?‑‑‑Mm-hm.

PN172

You are saying there that there is no one who is in ANZSCO sales assistant general who would be in a level above level 1?‑‑‑That's the assumption that I've made, yes, based upon the rationale explained in, I think, the previous one or two paragraphs. So, paragraph 16 has got the description of the sale and hire of goods, packing of goods, display presentation, reporting sales, et cetera, and then moving into the sales assistant general description in the following paragraph 17. So, that's where I have made the assumption that those that are described in the - I'll just get my terminology right - sales assistant general ANZSCO classification are those that would be in level 1 only.

PN173

I think I am more interested in the exclusion. Can I take you to 18 of the report?‑‑‑Yes.

PN174

I think this is a paragraph where you identify the exclusions, so you say:

PN175

To reach level 3, a worker is expected to provide supervisory assistance, opening and closing of premises, security of cash and is associated with the job title of senior salesperson or sales assistant.

PN176

Likewise, level 4 is associated with descriptive terms such as manage, supervise, buying, ordering or utilising trade qualifications.

PN177

You say that - were you going to say something?‑‑‑No, you're asking the questions.

PN178

I am, thank you. You say that those requirements, those expectations, to use the words that you use, 'To reach a level 3, a worker is expected to', is what takes level 3s and level 4s out of the sales assistant general ANZSCO classification?‑‑‑That's correct, yes.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN179

Can I take you to level 3 of the award, which is at page 61, or begins at page 61. At B.3.2, do you accept that the list of tasks listed there are, again, indicative of the tasks which might be required at this level?‑‑‑This is where there's a level of judgment, I believe, about whether, once we start going into a supervisory capacity, for example, that the person would identify with retail supervisor as their ANZSCO classification rather than sales assistant general.

PN180

Do you understand that a requirement to be a level 3 under the Retail Award is that you must have a supervisory capacity or supervisory duties?‑‑‑Can you repeat that, please?

PN181

Do you understand that it is a requirement to be a retail employee level 3 under the Retail Award that you must provide supervisory assistance or conduct supervisory duties?‑‑‑I don't believe, going from this description, that it's a requirement. Again, it says that it's an indicative task.

PN182

But, in your report, you have excluded from level 3 in the award anyone in the ANZSCO sales assistant general class on the basis that supervisory duties aren't listed in that class, haven't you?‑‑‑Well, that's correct, the description of the - again let's get the terminology correct - sales assistant general does not include any supervision.

PN183

Do you accept that under the award, retail level 3, you may not have to do supervision?‑‑‑Correct.

PN184

Can I take one of the roles, and it's just one, that's listed in 'Indicative job titles' under B.3.3 of the award on page 61, and it's the last one, senior salesperson. The presumption, or the assumption, of your report, as I understand it, is that a senior salesperson couldn't fall within the ANZSCO sales assistant general class, or wouldn't fall?‑‑‑Correct.

PN185

Do you know where a senior salesperson under the retail employee level 3 would fall within the ANZSCO classes?‑‑‑A senior salesperson?

PN186

A senior salesperson retail level 3 under the award, what ANZSCO class would that employee fall into?‑‑‑Well, I would have to go back to the ANZSCO classes to look at them in detail, but I'm assuming senior salesperson is when it could be very well that they're with retail supervisor rather than sales assistant general. To answer the question fully, I would have to go back and look at those ANZSCO classes individually to be able to form an opinion whether there was another suitable one.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

PN187

Can I provide you a document - and it may be that it can't help you or it may be the document that can - can I provide you a printout of 1220.0 ANZSCO and this has the description of 'Unit Group 6215 Retail Supervisors', which is the possible ANZSCO class that you are referring to?‑‑‑Mm-hm.

PN188

I don't want to ask an outrageously general question, but is this the kind of material or is this the document that you were just referring to that may help you make this determination?‑‑‑Yes.

PN189

If I can take you in this document to the six-digit - are they called 'job descriptors' or 'job roles' on the second page? We have occupation retail supervisor, we have checkout supervisor, we have sales department supervisor?‑‑‑As the alternative titles?

PN190

Yes?‑‑‑Yes.

PN191

Can I put it to you that a senior salesperson wouldn't fall into this unit group?‑‑‑Ah - - -

PN192

Particularly if - apologies - you complete your answer?‑‑‑I think that that's a very difficult question to answer. I couldn't say definitively 'Yes' or 'No'.

PN193

Can I put it to you that to the extent that a senior salesperson doesn't perform supervisory duties, they wouldn't be a retail supervisor in the ANZSCO codes?‑‑‑Correct. As I was saying in my previous answer, though, I would go through other classifications to see if there was a better one than the sales assistant general in order to answer that question better about whether they would go to retail supervisor or whether there was an alternative.

PN194

But you don't know what that unit group would be or what that occupation would be?‑‑‑I don't recall all of the ANZSCO job descriptions at the four-digit level off the top of my head.

PN195

Fair enough. Can I put it to you that some of the employees who have been taken out of your calculation as ANZSCO sales assistant general because they have been interpreted as level 1 under the award could actually be level 3 under the award?‑‑‑It's possible, yes.

PN196

I appreciate your patience, Professor. Mr Tindley may have some questions or he may not.

PN197

JUSTICE ROSS: Mr Tindley, do you have any questions for the witness?

PN198

MR TINDLEY: Yes, your Honour, just one and it is a clarifying question.

*** MARTIN JOHN O'BRIEN XXN MR ARNDT

CROSS-EXAMINATION BY MR TINDLEY [10.16 AM]

PN199

Dr O'Brien, can you go to paragraph 9 of your statement or your report. Do you have that with you?‑‑‑Yes, paragraph 9.

PN200

You say there:

PN201

As such, we were able to compile employee totals in the general retail industry for those aged 15 to 20 years.

PN202

?‑‑‑Yes.

PN203

Does that mean that that does not include those aged under 15 years?‑‑‑Correct. I do believe that 15 was the youngest age group used.

PN204

Thank you, there is nothing further.

PN205

JUSTICE ROSS: Can I just clarify something, Dr O'Brien, just about the methodology. You have used the census data and then, as you detail in paragraph 3, you have excluded certain industry categories within retail according to the ABS and included others to reflect the coverage of the General Retail Award?‑‑‑That's correct.

PN206

If you go to paragraph 13, this is this issue about clerical in, clerical out and I think you answered a question from Mr Arndt, the effect of which was that by excluding clerical, you may have under represented the numbers who are at level 1 and above. I am trying to work out what the extent of that underestimation might be. Is the answer that it couldn't be more than 1210 because that's the number you have excluded?‑‑‑Yes.

PN207

All right, thank you. Any re-examination?

RE-EXAMINATION BY MR FRIEND [10.19 AM]

PN208

Just one point arising out of the award. Have you still got that copy there, Doctor O'Brien? You were asked a lot about senior salespersons in B.3.3, page 61. If you go to the next page and look at the third-last bullet point in B.3.3, 'Designated second-in-charge of a section', that is senior sales assistant. Does that inform in any way your views about whether there are supervisory duties involved for a senior salesperson?‑‑‑So is this B.3.3?

*** MARTIN JOHN O'BRIEN RXN MR FRIEND

PN209

Yes, on page 62, 'Designated second-in-charge'?‑‑‑Yes, so the designated second-in-charge of a section, i.e. senior sales assistant?

PN210

Yes, does that tell you anything about what a senior salesperson is?‑‑‑Potentially a second-in-charge of the section.

PN211

Nothing further.

PN212

JUSTICE ROSS: Nothing further for the witness? Thank you, Dr O'Brien, for your evidence, you are excused.

<THE WITNESS WITHDREW [10.20 AM]

PN213

Can we just go to where we go from here. Speaking for myself, there are a number of things that would assist me. The first is a joint paper by the parties simply setting out the relevant history to the making of the modern award by reference to any decision of the Award Modernisation Full Bench, submissions to that Full Bench, transcript of any proceedings and a list of the pre-reform instruments that informed the making of the modern award and copies of those instruments. You each refer to those during the course of your submissions but we just don't want to end up with a factual contest about them.

PN214

The second issue goes to some assertions made by the SDA in its written submission. At paragraph 29(i), the SDA says that the Commission-approved increase in the 20 year old rate to the adult rate 'has not shown any detriment to employment.' The second assertion is at paragraph 39 where the SDA says that the award level 1 aligns with a Certificate II qualification and I was interested in the basis or what supports each of those assertions.

PN215

In the ABI submission, the table at 4.13, where you are putting, in broad terms, as I understand it, 'Look, if this happened, this would be a consequence across these', might that not overstate the consequence to some extent insofar as, for some of the levels, you have to have a certain age level? At least, depending on the state you look at, you can't be a forklift operator unless you are 18. It is really to give some thought to that issue.

*** MARTIN JOHN O'BRIEN RXN MR FRIEND

PN216

The other is what sort of process do you envisage both for the finalisation of this matter and also to give each of you an opportunity to say what you want to say about what flows from Dr O'Brien's evidence. I apprehend what you are both likely to say, or the three of you are likely to say, but you should have an opportunity to say that by reference to the transcript. We will order the transcript and make that available.

PN217

The related point is that I think it can be accepted that there's a degree of difficulty with lining up the level 4 ANZSIC classifications with the award levels because they are not in the same terms, so some assessments and some assumptions have to be made. The other way of gaining some information about that would be for a survey to be administered by the members of ABI and the NRA who are covered by the General Retail Award asking them the question, 'How many juniors do you employ', defining what a junior is, and then, 'How many of those employees are employed at level 1, 2, 3, 4, 5, 6, 7, 8?'

PN218

As you would be familiar with - you may not, Mr Tindley - but, Mr Arndt, you would be familiar with the process that was done in the Aged Care Award where the Commission essentially drafted a survey in consultation with the parties and then provided each of the employer parties with a link to that survey using some SurveyMonkey software and it was sent by the employer parties, then it was returned to the Commission and the Commission then collated all the material and provided that to the parties. That seems to present itself as one option to obtain some information in this case, so I wanted to raise that with the parties to get a response as to what you think about that.

PN219

To give you the insight into the Aged Care, Mr Friend, at least my recollection is some of the parties were ambivalent about this until they saw whether the data - this probably isn't the way they would characterise it - but when they saw the data, whether it helped their case or it didn't and, if it didn't, they would then say, 'Well, it's unrepresentative.' We can say at the outset we accept it won't be representative of the retail industry generally and that's not what we are seeking to do. It is seeking to get some indicative information about, 'Well, what is actually happening in practice amongst at least the members covered by the award within the membership of the NRA and ABI?'

PN220

MR ARNDT: Subject to approval from the powers that be, the Business Chamber, it is certainly a course that we could accommodate, particularly removing the responsibility on the ABI in New South Wales if they seek to draft the questions and then end up being cross-examined and it all coming out in evidence about the actual process of the survey. I think it's a good process that it be centrally administered, so to speak.

PN221

JUSTICE ROSS: Yes.

PN222

MR ARNDT: But, they are just my observations. I would need to get proper instructions from the Chamber and no doubt there's some protocol about how and when they contact members and timings and those kinds of issues.

PN223

JUSTICE ROSS: Sure. Perhaps if you can have the discussion with Mr Tindley and let's see if we can advance this and, once we get to a point, then Mr Friend can engage with his clients about what their attitude is. You said provided you don't draft the questions. That was exactly what I was going to ask you to do. It's really to give some thought to how might they be framed. It's a fairly narrow question.

PN224

MR ARNDT: So long as the questions prior to sending were agreed and approved, so to speak.

PN225

JUSTICE ROSS: That is exactly the process that I'm looking at. So, if you can give some thought to what the questions might look like, bearing in mind the information we want to elicit is within your membership, those employees who operate under the General Retail Industry Award, how many junior employees do they employ at each level? At least if we can start at that and then - this way, you can provide the draft, Mr Arndt, and we can all peck at it. So let's see where we go with that and a conference can be convened once you have provided a response and then we will see where we move along the path.

PN226

Can I raise one other issue, and this is something I would be encouraging the parties to have a discussion about, what's the process now for wrapping this issue up? I understand the reason for the delay, Mr Friend, is there's someone instructing you who has a personal difficulty?

PN227

MR FRIEND: Yes, I don't think that's going to be a long-term matter.

PN228

JUSTICE ROSS: No.

PN229

MR FRIEND: We can get a date, but we would probably need to go through that process that your Honour has just raised.

PN230

JUSTICE ROSS: I agree.

PN231

MR FRIEND: Then I think submissions are, certainly from our point of view, not very long at all.

PN232

JUSTICE ROSS: No.

PN233

MR FRIEND: We accept the document that the Commission has put forward about the framework and there's a couple of things in our written submissions which we obviously need to adjust somewhat given what has come in from the other side.

PN234

JUSTICE ROSS: Yes.

PN235

MR FRIEND: We would still be under a day, I would have thought, in final submissions, but we need to go through that process.

PN236

JUSTICE ROSS: Yes. In any event, the first step will be we will explore this survey issue, Mr Arndt will talk to Mr Tindley and come back with something and then we'll have a conference to discuss that.

PN237

Can I just check, Mr Friend, the SDA submission also refers to a Full Bench decision post the award modernisation issue that dealt with an SDA application. This is the one that is subject to some criticism in the submission.

PN238

MR FRIEND: Yes.

PN239

JUSTICE ROSS: That application, as I understand it, was to provide that junior rates do not apply at level 4 and above because it's the trade person, I think, which is level 4 in this award.

PN240

MR FRIEND: It certainly was trades person, but I think from my recollection of the submission, it also included other than trades persons.

PN241

JUSTICE ROSS: Yes, I wasn't clear about that because the SDA submission in this case talks about how the Full Bench only dealt with the trades persons.

PN242

MR FRIEND: Yes.

PN243

JUSTICE ROSS: I wasn't sure what else there was, so I would be interested to find out what your application was.

PN244

MR FRIEND: Yes, we will get that application, your Honour.

PN245

JUSTICE ROSS: All right, thank you.

PN246

MR FRIEND: And the transcript will be made available because my notes won't be very good of all those things your Honour was asking for?

PN247

JUSTICE ROSS: It will, absolutely, and we will get it expedited and sent to each of you.

PN248

MR FRIEND: Thank you.

PN249

JUSTICE ROSS: Is there anything further before we adjourn? No? All right, we will provide the transcript and we will wait to hear from you in due course, Mr Arndt.

PN250

MR ARNDT: Thank you.

PN251

JUSTICE ROSS: Adjourn.

ADJOURNED INDEFINITELY [10.31 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARTIN JOHN O'BRIEN, SWORN.................................................................... PN48

EXAMINATION-IN-CHIEF BY MR FRIEND................................................... PN48

EXHIBIT #SDA1 REPORT OF MARTIN JOHN O'BRIEN............................. PN59

CROSS-EXAMINATION BY MR ARNDT.......................................................... PN60

CROSS-EXAMINATION BY MR TINDLEY.................................................... PN198

RE-EXAMINATION BY MR FRIEND.............................................................. PN207

THE WITNESS WITHDREW............................................................................. PN212