PN1

JUSTICE ROSS: Could I have the appearances please. Firstly in Sydney.

PN2

MS N DABARERA: If the Commission pleases, Dabarera, initial N, appearing for United Voice.

PN3

MS M WELLS: May it please the Commission, Wells, initial M, for Restaurant and Catering Industrial.

PN4

JUSTICE ROSS: Thank you. We've got you on the phone, Ms Thomson, representing ABI?

PN5

MS K THOMSON: Yes, that's correct, your Honour, with permission thanks.

PN6

JUSTICE ROSS: Thanks. In Brisbane?

PN7

MS J MINCHINTON: Yes, your Honour. Minchinton, initial J, and I appear on behalf of the Australian Hotels Association, the Accommodation Association of Australia and the Motoring Motels and Accommodation Association, if it pleases.

PN8

JUSTICE ROSS: Thank you. The purpose of the mention was to provide the parties with an opportunity to comment on the draft directions that were attached to the listing notice. What would each of you like to say about those? You'll recall we had an earlier mention and there was an issue between the parties where in short form the employer organisations were seeking directions in line with the draft directions we've subsequently published. At that point United Voice were seeking an earlier hearing and now that we've put some dates to the filing of the various materials, it was really just to check whether there was anything further anyone wanted to say about those proposals. Do you want to start with United Voice?

PN9

MS DABARERA: Yes, your Honour.

PN10

JUSTICE ROSS: Probably easiest if you keep your seat because otherwise the microphone plays havoc.

PN11

MS DABARERA: Your Honour, we believe that the draft directions are sufficient. They give us sufficient time to make our submissions and given that we are in May, it does give us a lead up of just over nine weeks to do the initial submissions.

PN12

JUSTICE ROSS: Yes, and look I think a number of matters have been dealt with, the technical drafting issues by the Plain Language Full Bench. I anticipate the decisions in relation to those matters in the next couple of weeks and that might provide some further clarification as well. Ms Wells, what do you want to say?

PN13

MS WELLS: Your Honour, the only concern that arises for RCI is the hearing in October. We have been informed by one of the witnesses that they will be overseas from 7 to 29 October. Apart from that, the timetable is fine,

PN14

JUSTICE ROSS: Well we can always work around availability of one witness. Once the submissions and materials - if you can note in the material that you file those availability problems then we'll deal with that witness at a time that suits their availability.

PN15

MS WELLS: Thank you, your Honour.

PN16

JUSTICE ROSS: Ms Thomson from ABI, anything you wish to add?

PN17

MS THOMSON: No, thank you, your Honour.

PN18

JUSTICE ROSS: Right. Can I go then to the AHA.

PN19

MS MINCHINTON: Thank you, your Honour. As noted with the draft directions when we put forward our suggestions back in February we were seeking a sufficient timeframe because of other matters relating to the application to revoke the Registered and Licensed Clubs Award, and that certainly was the reason why we were looking at a later timeframe. Since that time, your Honour, decision 2018 FWCFB 148 was released.

PN20

JUSTICE ROSS: Yes.

PN21

MS MINCHINTON: And your Honour I highlighted that to your associate this morning that I was likely to mention this decision. In the decision specifically with regards to paragraph 395 and 396, it refers to substantive matters not being dealt with until the plain language process had been finalised. I note your comments about it, your Honour, and if it does assist the Commission, I was reviewing my notes from the conferences that we had back in February and due to a couple of missing pieces of information in the summary of submissions, the AHA wasn't actually able to make full submissions at the conference on at least one particular clause, and we had highlighted that we would be seeking to once we saw a further draft of the plain language exposure draft.

PN22

In terms of I guess where the AHA is at the moment, we'd prefer to see the plain language process finalised and once it is finalised and we know that timeframe, have the opportunity with the other parties and the Commission to consider our timeframes from that point in time, your Honour.

PN23

JUSTICE ROSS: But why would you need to do that? You're seeking some substantive changes to the award - - -

PN24

MS MINCHINTON: Yes.

PN25

JUSTICE ROSS: - - - and you want to advance a merit argument about those. Why can't you just do that?

PN26

MS MINCHINTON: I was looking through the summary of submissions for (indistinct) substantive, your Honour, and it may be that there are a couple of things that are resolved as part of the plain language process. So from the perspective of being able to rationalise what our item list is, which is currently 29 items that we wish to pursue, being in a position to see where we are once the plain language draft has been finalised will give us a better idea of how many matters we have and preparing for that, your Honour.

PN27

JUSTICE ROSS: Well you won't need to file anything until 6 July. There's liberty to apply and I'd anticipate trying to progress the plain language drafting in respect of these awards within the next four weeks. If at the end of that, if that doesn't happen or something else arises and you want further time then you can seek liberty to apply. But the problem is if we wait until one finishes we push everything out by four to six weeks, perhaps for no purpose. All of the parties have had plenty of time to identify and prepare for the substantive changes they're seeking. In fact, if memory serves me correctly, more than a couple of years to give some thought to what specific changes are being proposed. So I'm not inclined to wait and see where that process goes, otherwise it's, you know - there's every chance we'll still be sitting here next year seeing where we go.

PN28

I doubt very much if the substantive changes that are being sought are going to be resolved through the plain language redrafting of a particular term. So I think you should work on the basis that you're going to have to - if you wish to pursue the changes you're seeking then you should start getting your material together and work on the assumption that they won't be resolved to your satisfaction in the plain language drafting process, and then you can file within the time that's indicated.

PN29

MS MINCHINTON: Yes, your Honour.

PN30

JUSTICE ROSS: If in fact some of them are resolved then that's great. I think each organisation's going to need to make a decision and that's really what this process is intended to crystallise. Each of you, that is the union and the employer organisations will need to make a decision about what ultimately is important to them and they believe they have a merit case to support and pursue. That's really what we're trying to do now. Because initially - and this is true of most of the modern awards, the parties on either side file a raft of proposed substantive changes, most of which don't materialise when the matter's put to a merits hearing. So these are some of the last awards to be considered in a merits hearing for substantive change and I mean for obvious reasons they were also the subject of the penalty rate proceedings. There is in any event liberty to apply, in the event that something else comes up and if you want a further mention once the - you see the - how the plain language matter's progressing then just put a request into my chambers and we'll see how we go at that point, okay? Anything further?

PN31

MS DABARERA: No, your Honour.

PN32

MS WELLS: Your Honour, on the last occasion, at the last mention, your Honour, wanted confirmation of the number of witnesses for RCI.

PN33

JUSTICE ROSS: Yes.

PN34

MS WELLS: We have 13 confirmed witnesses for the review of the restaurant award and one confirmed witness for the hospitality award.

PN35

JUSTICE ROSS: Right. I think you were but we'll see this in terms of the - when you file your material but you were seeking to confirm which matters you were going to pursue and which matters you were not pressing.

PN36

MS WELLS: We confirm that we will be pressing all the claims outlined in the summary of proposed variations, dated 24 March 2016.

PN37

JUSTICE ROSS: Right, thank you. Anybody else? No? All right, thank you very much, we'll adjourn.

ADJOURNED INDEFINITELY [12.13 PM]