PN83

JUSTICE ROSS: Can I have the appearances, please. Firstly, in Melbourne.

PN84

MS S KELLY: May it please the tribunal, my name is Kelly, initial S. I seek permission to appear on behalf of the Retail and Fast Food Workers Union.

PN85

JUSTICE ROSS: Thanks, Ms Kelly. In Sydney?

PN86

MR H DIXON: May it please the Commission, I seek permission to appear with my learned friend Mr A. Gotting for the Australian Industry Group.

PN87

JUSTICE ROSS: Thank you, Mr Dixon. Do I take it - well, two points. Firstly, neither of you oppose the application for permission to appear by the other party?

PN88

MS KELLY: That's so.

PN89

MR DIXON: Correct, your Honour.

PN90

JUSTICE ROSS: Secondly, that the application is put on the basis that having regard to the complexity of the matter, it would be dealt with more efficiently if permission were granted?

PN91

MS KELLY: Indeed.

PN92

MR DIXON: If your Honour pleases.

PN93

JUSTICE ROSS: Permission is granted in each case. Just before we get to Mr Flemington, can I raise some things with you, Mr Dixon - well, with all the parties, for that matter. We have got Mr Flemington's statement today, but in terms of the submissions we have the Ai Group's submissions of 23 February, the draft determination of 24 April and the outline of submissions of 26 June 2018; we have submissions from the SDA of 20 February and 16 March of this year; we have the submissions of RAFFWU of 13 March and 18 April this year. Are there any submissions we're missing?

PN94

MR DIXON: Not from our end.

PN95

MS KELLY: I don't believe so, your Honour.

PN96

MR DIXON: Not from the AiG end, thank you, your Honour.

PN97

JUSTICE ROSS: All right. Thank you. Just in relation to AiG's submissions, the initial one here of 23 February, for myself, Mr Dixon, I would be assisted by a short statement or short submission setting out precisely what findings Ai Group is asking us to make on the basis of all the evidence that is in. In reading the submission filed - this is the submission of 23 February - for example, if one looks at paragraphs 21 to 26 it talks about:

PN98

Currently there are large numbers of casual employees working in the fast food industry -

PN99

et cetera, at 26, then there is evidence cited in support of that proposition. The same appears at paragraphs 54 to 58, but I'm not sure precisely what findings are being sought and I think it will focus our attention when we come to hear the argument if you could firstly provide that. Secondly, in relation to the part‑time claim, at paragraph 59 you discuss the differences between the claim and the current award. In particular, clauses 12.2 and 12.3 of the award. I would be assisted by a comparative table which simply sets out side by side the claim and the award provisions so I can see for myself what the differences are.

PN100

Similarly, at paragraph 80 you there talk about differences between the current Fast Food Award clause and the part‑time and rostering clauses in the Hospitality, Restaurants and the Clubs Award. Again I would be assisted with some side‑by‑side comparison of those provisions.

PN101

MR DIXON: If your Honour pleases, we would obviously endeavour to provide that material to the Commission in advance of final submissions or even earlier if that is more convenient to the Commission.

PN102

JUSTICE ROSS: Look, for myself I would certainly appreciate that material by the end of next week so we've got it in advance of the oral argument.

PN103

MR DIXON: If your Honour pleases.

PN104

JUSTICE ROSS: Thank you, Mr Dixon. All right. We might deal with Mr Flemington. Do you want to call Mr Flemington and we'll have him sworn in?

PN105

MR DIXON: Your Honour, just before we do that, perhaps it's a little unusual that we haven't opened at all the case. We obviously will rely on those two sets of written submissions.

PN106

JUSTICE ROSS: Yes.

PN107

MR DIXON: And the Full Bench may need to have those in hand if there are any matters arising in cross‑examination. Apart from that, Mr Flemington is available and we would now call him, if your Honour pleases.

PN108

JUSTICE ROSS: Thank you.

PN109

THE ASSOCIATE: Please state your full name and address.

PN110

MR FLEMINGTON: Ian Flemington, (address supplied).

<IAN FLEMINGTON, AFFIRMED [3.15 PM]

EXAMINATION-IN-CHIEF BY MR DIXON [3.15 PM]

PN111

JUSTICE ROSS: Mr Dixon.

PN112

MR DIXON: May it please the Commission. Are your full names Ian Flemington?‑‑‑Yes.

PN113

Is your business address Level 12, 12 Help Street, Chatswood in the state of New South Wales?‑‑‑It is.

PN114

Mr Flemington, are you employed by Craveable Brands Ltd?‑‑‑Yes.

PN115

Are you employed in the role of chief people officer?‑‑‑Yes.

PN116

May I invite you to speak up as - - -?‑‑‑Of course.

PN117

(Indistinct) you are comfortable with but your speaker doesn't amplify, it simply records. Is it the case that you have affirmed an affidavit for the purposes of these proceedings?‑‑‑It is, yes.

PN118

Is it the case that you have affirmed - that the affidavit you affirmed was on 23 February 2018?‑‑‑Correct, yes.

*** IAN FLEMINGTON XN MR DIXON

PN119

Do you have a copy of that affidavit with the judgments available to you?‑‑‑I do, yes.

PN120

I understand that in relation to paragraph 45, you wish to add a word to clarify or make clearer that paragraph. Is that correct?‑‑‑Yes please, yes.

PN121

That is that in paragraph 45, in the second line, you wish to have the word "using" inserted after "restaurants" so that it reads:

PN122

Chicken Treat Restaurants using the Chicken Treat Agreement.

PN123

?‑‑‑Yes, please.

PN124

In relation to paragraph 52, in the second line of that paragraph, in the first sentence, after the comma in the second line it reads:

PN125

I understand that the Craveable Brands -

PN126

You wish to insert the word "permanent" -

PN127

employees have longer service.

PN128

Is that correct?‑‑‑Yes, please.

PN129

Thank you. Then in addition, Mr Flemington, may I draw your attention to paragraph 14 of - I'm sorry, paragraph 16 of your affidavit?‑‑‑Yes.

PN130

You'll see you there make reference to the award applying to the small number of Red Rooster franchisees?‑‑‑Correct.

PN131

Have you subsequently identified the franchisees there referred to?‑‑‑We have identified the restaurants, yes.

PN132

I beg your pardon, the restaurants. And may I show you this document. May I please approach, your Honour?

*** IAN FLEMINGTON XN MR DIXON

PN133

JUSTICE ROSS: Yes.

PN134

MR DIXON: Does the document - if the Commission pleases, a copy has been provided of the document with a list of restaurants with 10 names on it, both to the Full Bench and as I understand it to our learned friend in Melbourne earlier today.

PN135

JUSTICE ROSS: Yes, that's so.

PN136

MR DIXON: Yes. Mr Flemington, can you identify the document that I've handed to you?‑‑‑Yes, I have the document here and it lists the 10 restaurants that we've identified as operating the fast food board.

PN137

They're numbered one to 10, the first one is (indistinct) and the last one is Auburn Redyard?‑‑‑Correct, yes.

PN138

I seek to tender the list if the Commission pleases.

PN139

JUSTICE ROSS: So presumably you're seeking to tender Mr Flemington's affidavit as well as the list?

PN140

MR DIXON: If your Honour pleases. I haven't asked Mr Flemington to reaffirm the affidavit but obviously if the Commission would prefer that course I would obviously abide by that rule.

PN141

JUSTICE ROSS: No, that's fine. It's an affidavit sworn, it should be fine and if there's no objection then we'd mark - - -

PN142

MS KELLY: No objection.

PN143

JUSTICE ROSS: We'd mark the affidavit exhibit Ai Group1 and the document identifying the 10 Red Rooster restaurants referred to at paragraph 16 of exhibit Ai Group1 will be Ai Group2.

EXHIBIT #AI GROUP1 AFFIDAVIT OF IAN FLEMINGTON

EXHIBIT #AI GROUP2 DOCUMENT IDENTIFYING 10 RED ROOSTER RESTAURANTS

*** IAN FLEMINGTON XN MR DIXON

PN144

Thank you, Mr Dixon. Ms Kelly.

PN145

MR DIXON: If your Honour pleases.

CROSS-EXAMINATION BY MS KELLY [3.21 PM]

PN146

MS KELLY: Thank you, your Honour. Mr Flemington, can you both see and hear me sufficiently?‑‑‑I can thank you, yes.

PN147

Mr Flemington, you're aware of the purpose of the proceeding before the Commission are you not?‑‑‑I am.

PN148

You understand that it is an application that will look at variations or amendments to the modern award?‑‑‑Yes.

PN149

You're aware that they will then apply to any employer in relation to those employees who are covered by that award?‑‑‑I do, yes.

PN150

So you're conscious that any change that's made will effect businesses other than the one that you work for?‑‑‑I am.

PN151

Now in paragraph 57 of your affidavit you have summarised, if I can put it that way, the key issues for Craveable Brands. Is that correct?‑‑‑Yes.

PN152

So for Craveable Brands there are two particular issues it raises with the tribunal, the first being requirement to pay part-time employees overtime for additional hours worked?‑‑‑Yes.

PN153

The second is the requirement to record any additional hours in writing?‑‑‑Yes.

PN154

So after careful consideration, they are the two matters that the business you work for wishes to raise in this application before the tribunal?‑‑‑That is correct.

PN155

In preparing your affidavit, Mr Flemington, I'm interested in the process you use. Did you consult with franchisees in the preparation or your affidavit?‑‑‑I did.

*** IAN FLEMINGTON XXN MS KELLY

PN156

How many of the franchisees did you consult with?‑‑‑Approximately, directly in relation to the affidavit I would say six off the top of my head. I can't remember the exact number now, sorry, but I also considered the number of franchisees that I've spoken to over the last 18 months around this issue, which included the franchise advisory councils which are elected bodies of franchisees for each of our three brands.

PN157

Of the six franchisees that you spoke with, how many franchises do they operate?‑‑‑Off the top of my head I couldn't tell you, sorry.

PN158

Who were the six that you directly consulted with?‑‑‑Adrian Pinatsa, Daniel McDowell, Bob Northy, Annette - sorry, the other three escape me at this point in time.

PN159

How did you select the six that you consulted with directly?‑‑‑They are all members of the franchise advisory councils or have been over the years and have operated the restaurants for long periods of time, so very familiar with the industry, the underpinning awards and the nature of the business.

PN160

Which of your brands do they work within, if I can put it that way. Which of their brand do they - your brands do they operate stores for?‑‑‑Yes, sure. So the three that I can recall there, Adrian Pinatsa is Oporto. Daniel McDowell is Red Rooster and Bob Northy is Chicken Treat.

PN161

For those three that you do recall, do their stores operate under an agreement or using the award?‑‑‑They operate under agreements at this point in time.

PN162

Did you directly consult with any franchisee who operates a business utilising the award?‑‑‑No.

PN163

Of the franchisees you spoke to or consulted with directly in the preparation of your affidavit, how many employees are employed in the stores they operate?‑‑‑Off the top of my head I'm afraid I couldn't tell you, but we have an average employee base of about 20 crew per store both in Oporto and Red Rooster, and around 15 in a Chicken Treat restaurant.

PN164

But you don't know how many workers are employed at the stores of the people you have identified, or the three people who you don't recall?‑‑‑I can't recall off the top of my head, no.

*** IAN FLEMINGTON XXN MS KELLY

PN165

Did you, in addition to the direct consultation with the people you have identified, conduct any form of survey of your franchisees for the purposes of preparing your affidavit?‑‑‑I didn't, no.

PN166

Did you conduct any survey of your employees in the course of preparing your affidavit?‑‑‑We didn't, no.

PN167

Did you engage any external person or organisation to conduct an assessment of the impact of the changes your company is supporting on the corporate businesses operated by Craveable Brands?‑‑‑No.

PN168

Did you engage any external person or organisation to conduct an assessment of the impact of the changes on your franchisees' businesses - - -?‑‑‑No.

PN169

- - - in the course of preparing your affidavit?‑‑‑No.

PN170

Just to clarify one of my earlier questions - I apologise - did you conduct any survey of the employees of your franchisees for the purposes of preparing your affidavit?‑‑‑No, we did not.

PN171

Mr Flemington, do you know what percentage of the fast food market Craveable Brands and its franchisees represent?‑‑‑I'm afraid I don't know.

PN172

Do you know whether the employment patterns in Craveable Brands' stores are representative of the employment patterns in other workplaces in the fast food industry?‑‑‑In my experience I would say, yes, they are. I draw my experience both from McDonald's in this industry and from talking to my peers within the industry, as well. I would say, yes, they are.

PN173

What about in a small corner fast food store, Mr Flemington? Do you think employment patterns in a small corner fast food store would be the same as those in Craveable Brands' businesses?‑‑‑I would assume, yes, but that's my assumption.

PN174

You don't know?‑‑‑Correct.

PN175

Would you describe the businesses operated by Craveable Brands as successful?‑‑‑Absolutely.

PN176

That is so for the Oporto brand?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN177

And the Red Rooster brand?‑‑‑Yes.

PN178

Would you describe as successful all the Oporto franchises?‑‑‑Can you clarify what you mean by successful and the differentiation between all franchises versus the brand.

PN179

Yes. Again, I am asking you at a level of generality?‑‑‑Sure.

PN180

Is there anything that distinguishes the Oporto franchises in relation to whether you consider them to be successful or not?‑‑‑Each restaurant is different in terms of sales patterns and therefore profitability, but there are so many factors that are influenced in that outcome that it's really hard to say that any one is less successful than the other based on a broad brush assumption. I probably wouldn't want to give you a definitive answer on that one because there are too many variables involved.

PN181

There is no single variable that you say impacts on the success or otherwise of a franchise?‑‑‑Absolutely sales and the topline growth drives success, but then there are so many variables that then impact profitability for that franchisee to then say whether that franchisee may feel successful.

PN182

It's fair to say though at a corporate level you consider the Oporto brand to be a successful one?‑‑‑Yes.

PN183

Is it a growing business, Mr Flemington?‑‑‑It is.

PN184

Is that so for each of the brands within the Craveable business?‑‑‑If we are talking about growth at a topline sales perspective, yes. If we are talking other growth measures such as net store numbers, for example - so footprint growth - it is not the case in the last 12 months for two of the brands.

PN185

Mr Flemington, you referred earlier to some consultative bodies that are operated by Craveable Brands?‑‑‑Yes.

PN186

Am I correct that you have an elected committee for each of the three brands?‑‑‑Yes, the franchise advisory councils.

PN187

How many representatives are on each of the franchise advisory councils?‑‑‑Red Rooster, I believe, is eight; Oporto is six; Chicken Treat is five.

*** IAN FLEMINGTON XXN MS KELLY

PN188

What is the election method for those representatives?‑‑‑I'm afraid I couldn't answer that with certainty because that happens within the brands, so I would rather not give you an inaccurate answer on that one, if that's okay.

PN189

Of course. How many representatives from stores who apply the award are on the Oporto franchise advisory council?‑‑‑I don't know.

PN190

How many representatives from stores using the award are on the Red Rooster franchise advisory council?‑‑‑I don't know and that's because I can't recall the franchisees of the 10 restaurants that are listed there as operating the award.

PN191

The same question in relation to the Chicken Treat franchise advisory council?‑‑‑Again, I'm afraid I don't know.

PN192

In your affidavit you say that one of the topics discussed at the franchise advisory council for Red Rooster on 30 November 2016 was the use of part‑time employees?‑‑‑I'm sorry, you have just dropped out there.

PN193

I apologise. In your affidavit, at paragraph 3, you say that one of the topics discussed at the franchise advisory council for Red Rooster on 30 November 2016 was the use of part‑time and casual employees. Is that correct?‑‑‑Yes.

PN194

In what context did that discussion arise?‑‑‑We were discussing the enterprise negotiation strategy for FY - for the financial year '18 and beyond. We were drawing a comparison between the use of casual and part-time employees under the award.

PN195

In relation to the Chicken Treat franchise advisory council which discussed the same subject matter on 1 February 2017, in what context did it arise in that meeting?‑‑‑It was exactly the same context, so the use of a part-timer versus a casual under the award.

PN196

So in each case it was part of a broader discussion about the strategy that would be applied as part of enterprise bargaining?‑‑‑Correct.

PN197

You haven't referenced in your affidavit, Mr Flemington, the Oporto franchise advisory council. Was it discussed at that advisory council?‑‑‑It wasn't and the - it was not, no.

*** IAN FLEMINGTON XXN MS KELLY

PN198

Now in addition to six people you identify that you had direct discussions with for the purposes of preparing your affidavit and the two meetings you've identified in paragraph 3 of your affidavit, did you otherwise consult with franchisees for the purpose of preparing your affidavit?‑‑‑I recall conversations and general discussions around the use of part-time and casual employees at state meetings. So the presentation that was given to the franchise advisory council members was - and also used at state meetings where all franchisees in every state attend, the majority of franchisees in each state attend. So it was certainly raised there and then there were general discussions on breaks throughout the course of the day where we would discuss it but I couldn't recall for you exactly who I spoke to about what on that particular - on any of the given days.

PN199

The state meeting you're referring to, is that a single meeting or a series of meetings?‑‑‑They're quarterly state meetings that will usually follow the FAC meetings within a couple of weeks and it's to share the message and the outcome from the franchise advisory council meetings with the broader state.

PN200

So the presentation that was provided at the state meetings, was that in relation to the enterprise bargaining strategy?‑‑‑Correct.

PN201

How many franchisees attended the state meetings at which that presentation was given?‑‑‑I wouldn't know the exact numbers off the top of my head. What I would say is the majority of franchisees in each state attend them.

PN202

The presentation that was provided at those state meetings dealt presumably with a range of matters related to bargaining?‑‑‑Yes.

PN203

It wasn't a presentation that was specifically directed to the current question?‑‑‑No.

PN204

JUSTICE ROSS: You might clarify what you mean by the current question.

PN205

MS KELLY: Yes, of course, your Honour. The question of a proposed change to the modern award in relation to the rostering of part-time employees. It wasn't specifically directed to that question?‑‑‑Correct. No, it was not. But if I can just elaborate on that. What it did do was open a discussion around the complexities of using part-time employees under the award provision as it stands at the moment versus using a casual employee.

*** IAN FLEMINGTON XXN MS KELLY

PN206

So in addition then to the franchise committee meetings and the state meetings that you've just described, along with the six individuals you've consulted with directly, was there any further consultation engaged in by you in relation to the preparation of your affidavit?‑‑‑With the head of operations for both Chicken Treat and Red Rooster who spoke from a corporate store ownership perspective.

PN207

No direct discussions with employees?‑‑‑No.

PN208

In relation to the people that you spoke to on the committees and at the state meetings, did you take any steps to ensure that you had spoken to a representative group of people?

PN209

MR DIXON: I object to this question. That is so open ended it's not of any value to the tribunal.

PN210

MS KELLY: I'll rephrase. Did you take any steps to ensure that the group of people with whom you consulted included franchisees who operated using the award?‑‑‑I believed in the selection of franchisees that I spoke to that they had a depth of understanding of the award and the implications of the award on their businesses so whilst they might not have operated using the award - - -

PN211

Mr Flemington, I need you to answer the question I asked you please?‑‑‑Sure.

PN212

Did you take any steps to ensure that among the people you consulted with there were representatives from franchisees who operated using the award?‑‑‑No.

PN213

Mr Flemington, if I could ask you to look at paragraphs 24 through to 26 of your affidavit please?‑‑‑24 through to paragraph?

PN214

Twenty-six?‑‑‑Yes.

PN215

In paragraph 24 in the second sentence you say "they" being employees -

PN216

working in restaurants do not include corporate employees.

PN217

?‑‑‑Yes.

PN218

Do you see that?‑‑‑Yes.

PN219

Then in paragraph 25 you refer there to corporate employees by age?‑‑‑M'mm.

*** IAN FLEMINGTON XXN MS KELLY

PN220

Do you intend by the phrase "corporate employees" as used in paragraph 25 to be people employed in restaurants operated directly by Craveable Brands?‑‑‑Yes, yes, apologies for the confusion there.

PN221

No apology necessary, I just wanted to clarify that. That's the same in relation to paragraphs 26 and 28?‑‑‑That's right, yes.

PN222

Thank you, Mr Flemington. Now in paragraph 27 you say you were not able to access the age information for franchised employees. Is that information held by franchisees?‑‑‑It would be held by franchisees, it's not held corporately.

PN223

Did you take any steps to obtain it?‑‑‑No.

PN224

In relation to paragraph 29 you have extrapolated from Craveable Brands employment ratios across all of the franchisee restaurants. Is that correct?‑‑‑That's correct.

PN225

The franchisees will have actual information will they not of the breakdown between full-time, part-time and casual employees?‑‑‑That's correct.

PN226

Did you take any steps to obtain that information from the franchisees?‑‑‑We did not.

PN227

The reason for that, Mr Flemington, if I understand correctly is that you say that the franchisees generally operate the same trading patterns and therefore it can be safely inferred that they have a similar breakdown of employment categories?‑‑‑Yes.

PN228

That's so for the franchisees operating restaurants under the Oporto brand?‑‑‑Yes.

PN229

Along with the Red Rooster brand?‑‑‑Yes.

PN230

And also the Chicken Treat brand?‑‑‑Yes.

PN231

It's your opinion that there is no reason to think that there would be any material deviation from the employment category breakdowns that you have described in paragraph 28?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN232

I'm sorry to labour the point?‑‑‑It's okay.

PN233

And perhaps I have been unclear. The extrapolation that you have conducted in paragraph 29, you are comfortable that that represents the likely employment breakdown for all the franchisees' restaurants?‑‑‑Yes.

PN234

JUSTICE ROSS: To be clear, that is on a proportionate basis presumably.

PN235

MS KELLY: Yes, it is.

PN236

JUSTICE ROSS: Yes, all right?‑‑‑Yes.

PN237

MS KELLY: All I'm seeking to establish, your Honour, is that if we identified any one of the 567 stores, it would be a reasonable inference that that store would have a similar breakdown as we see in paragraph 29?‑‑‑Yes.

PN238

That proposition holds, doesn't it, Mr Flemington, irrespective of whether a store is using the award or the enterprise agreement?‑‑‑Yes.

PN239

So in relation to the Oporto stores, in your opinion the breakdown will be similar in an Oporto store using the award as we see set out in paragraph 29?‑‑‑If they're operating the award, yes.

PN240

But it would also be the same if they were operating the agreement?‑‑‑There is no national Oporto agreement.

PN241

I apologise. An agreement of their own?‑‑‑I would say yes.

PN242

That is equally the case for Red Rooster?‑‑‑Yes.

PN243

This applies irrespective of whether a store is operating the award or operating under an agreement?‑‑‑Yes.

PN244

The same in relation to Chicken Treat?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN245

So you would agree that as things presently stand, the industrial instrument that is being utilised by a franchisee has no bearing on the proportionate breakdown of employment types used in each franchise?‑‑‑I'm saying the impact at this point in time is the same.

PN246

Craveable Brands has established a standard practice for the preparation of rosters. That's correct?‑‑‑It's mandated in the agreements, yes.

PN247

I see. So it is mandated as part of the franchisee agreements?‑‑‑No, no. As part of the enterprise agreements of both Red Rooster and Chicken Treat, they have rostering requirements in them.

PN248

Is that what you are referring to in paragraph 30 of your affidavit where you refer to a standard practice for the preparation of rosters?‑‑‑Yes. The standard practice around - involving specifying their availabilities is not necessarily mandated in the enterprise agreements, but it's a standard practice in our industry.

PN249

It is applied in both your corporate stores and your franchisee restaurants?‑‑‑Yes.

PN250

Is it mandated for your franchisees that they adopt this standard practice?‑‑‑No.

PN251

How many of your franchisees adopt this standard practice?‑‑‑In my opinion, I would say a hundred per cent, because you couldn't roster appropriately without that information.

PN252

Do you know?‑‑‑Definitively, no.

PN253

The standard practice you describe could be applied to any store irrespective of whether it applied the award or an enterprise agreement. Is that correct?‑‑‑That's correct.

PN254

In relation to paragraph 32 where you talk about employees specifying changes to their availabilities, again that's something that can be done irrespective of whether a store is applying the award or an enterprise agreement?‑‑‑Correct.

PN255

That is also true of temporary changes in availability?‑‑‑Yes.

PN256

It's true also of permanent changes in availability?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN257

Nothing in the process that you describe in paragraphs 30 to 34 is dependent on the type of industrial instrument applying in any given workplace?‑‑‑Correct.

PN258

Does this process apply to casual employees as well as permanent employees?‑‑‑Yes.

PN259

How often as part of the standard practice does Craveable Brands ask its employees to update their preferred availability?‑‑‑We don't proactively ask them to update it at all. It is then down to themselves to request any changes as they see fit or as they need.

PN260

When employee availability is first collected, it's collected in a written form whether using the online platform or in hard copy. Is that correct?‑‑‑Yes.

PN261

Then where an employee seeks to make a change, whether temporary or permanent, the employee is required to request that change in a written format. Is that correct?‑‑‑Yes, or via Zuus, which is our online rostering tool where they can make a request. Certainly for temporary changes.

PN262

So in all cases in which an employee may request a change to their availability, Craveable Brands requires them to do so in writing, if you accept that writing includes Zuus?‑‑‑Yes. If they make that request in advance of the roster being published, yes. There is a reality that it's a common practice in restaurants if somebody - the roster has been published and they can no longer make a particular shift, that they may go and approach the manager and verbally request that that shift be covered or that they cannot attend it.

PN263

So to be clear about that then, for any availability change prior to the roster being posted, the employee is required to do that in writing?‑‑‑Yes.

PN264

For changes to the roster after it's posted, that can be done either in writing or as a matter of practicality verbally?‑‑‑Yes.

PN265

The practice of requiring employees to make requests in writing, do you agree with me that that practice ensures there is always a record of the request made?‑‑‑Yes.

PN266

It ensures that there is always a record of the content of the request?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN267

It facilitates Craveable Brands providing a response to the request?‑‑‑Yes.

PN268

It assists in avoiding doubt or uncertainty about the nature of the request or the response?‑‑‑Yes.

PN269

Do you accept that they are all benefits that derive from making such requests in writing?‑‑‑I do.

PN270

You accept that they are things that are beneficial to Craveable Brands in the operation of its business?‑‑‑To both Craveable Brands and the employee, yes.

PN271

There is a mutual benefit, isn't there?‑‑‑Correct.

PN272

Now you touched on this a moment ago, Mr Flemington, but in paragraph 38 you addressed the question of "changes in availability after a roster has been posted", and you say there that the change needs to be approved by the franchisee or restaurant manager?‑‑‑Yes.

PN273

Do you see that - do you have that paragraph?‑‑‑Yes.

PN274

Are you referring there to a change in the hours as rostered?‑‑‑Yes.

PN275

Or to a change in the availability of an employee more broadly?‑‑‑A change in the hours as rostered.

PN276

What is the approval process that you describe in that paragraph?‑‑‑It will either be verbal and typically would take that format and so it could take two forms, one where an employee will approach the franchisee or restaurant manager and ask for a change in next week's roster or the coming week's roster and ask the franchisee or restaurant manager to make that or facilitate that change for them, which will either be yes, no, we can go ahead and do that. Or - or we can try. Or it will that they will come forward and say I would like to take a particular day off and I found somebody to swap with, is that possible. So there's two potential options there.

PN277

If approval is given, there will be then an alteration to the written roster?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN278

Will that alteration also appear in Zuus?‑‑‑Depending on the timing, if it was an alteration for today, for example, the restaurant manager's unlikely to alter it in the Zuus roster. If it's three or four days out then yes, it would be if it can be accommodated. I do put a caveat on that though of if it can be accommodated.

PN279

Yes, of course. Sometimes a request will be made and it will be denied?‑‑‑Correct.

PN280

In paragraph 41, Mr Flemington, you say that:

PN281

Typically part-time and casual employees make requests for weekly amendments to their availability once a fortnight.

PN282

?‑‑‑Yes.

PN283

When you say their availability, are you referring to an employee's agreed number of hours or to the span of hours in which they may work, or both?‑‑‑Both. So it could be either/or and would generally be to address a short term need - in the main a short term need to have a particular period of time off.

PN284

You say that:

PN285

Typically both part-time and casual employees make such requests on average once a fortnight.

PN286

?‑‑‑Yes.

PN287

What is your data source for that information?‑‑‑From speaking to franchisees, my own experience in store and speaking to the (indistinct), head of operations for the branch for our company and stores.

PN288

So your own experience, speaking also to the head of operations?‑‑‑Yes.

PN289

And who else?‑‑‑The franchisees that I spoke to.

PN290

They are the six franchisees you identified to me earlier?‑‑‑Yes.

PN291

Did you ask them directly how often requests of this kind are made?‑‑‑I did.

*** IAN FLEMINGTON XXN MS KELLY

PN292

Is there data that would tell you how often changes are made?‑‑‑There would be but it isn't in a consistent source. So if those requests are made verbally they would not have been recorded - there's a potential they would not have been recorded somewhere, so I would question whether there's one holistic complete source of truth on that data.

PN293

Did you try to find that data?‑‑‑No.

PN294

Did you conduct any sample over a specified period of time to monitor such requests?‑‑‑No.

PN295

Did you speak to any employees about how often they make such requests and why?‑‑‑No.

PN296

Of the people that you spoke to and asked the direct question how often part-time and casual employees make such requests, how many of them operate stores which apply the award?‑‑‑None.

PN297

Did you take any steps to identify how often requests of that kind are made in stores applying the award?‑‑‑No.

PN298

Do you accept, Mr Flemington, that a system in which employees do not know from week to week when they will work their minimum agreed hours increases the need for employees to request changes to their availability?‑‑‑Potentially, depending on the narrowness of their broad availability because they will only be rostered within the hours of availability that they have provided.

PN299

So if I can put that into a contextual example. If a university student has included in their availability nine to five on a Monday and they have a - well nine to five three days a week, and they have a minimum of eight hours in that week, and they have a university class that they have to attend at 3 pm, that may - that will necessitate that person making a request to change their availability on the Monday?‑‑‑Yes, but if that university class is a recurring class they'd make that change to their permanent availability so it wouldn't be recurring week on, week off.

PN300

But you accept that that employee would not need to make that request at all if they knew that their hours were to be rostered 9 am to 1 pm on the Monday?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN301

Do you accept also that this practice of rostering for availability might increase the need for employees to request changes because it makes it more difficult to arrange childcare?‑‑‑Again, potentially. As I said before with the last scenario, it would depend on the narrowness of their availability and changes from week to week that may occur in their own lives.

PN302

Allowing for those caveats, you accept that the answer is yes, it may increase the need for an employee to request changes for such things as childcare?‑‑‑Yes.

PN303

So you would also agree that this method of rostering for availability is inherently more uncertain for part-time employees than set hours of work?‑‑‑I'd agree it has the potential to do that but I think it can be managed with appropriate availability setting with the employee and the manager and making permanent changes to that when needed, for example around things like childcare and so on.

PN304

In the circumstance you have just described, the protection for the worker isn't found in the terms of the award is it?‑‑‑Can you just explain that for me please?

PN305

You've said that the potential for uncertainty can be managed as between the employee and their employer, correct?‑‑‑Yes.

PN306

That is a process external to the terms of the clause that your organisation is supporting insertion into the modern award?‑‑‑I'm not sure I would agree with that statement.

PN307

Do you have the proposed clause with you?‑‑‑I do. Actually, no, I don't. Sorry, no, I don't.

PN308

If someone in Sydney has a copy that could be provided to the witness, I would be grateful.

PN309

MR DIXON: We will see what we can do. May I approach the witness, your Honour?

PN310

JUSTICE ROSS: Yes.

PN311

MS KELLY: Thank you, Mr Dixon.

*** IAN FLEMINGTON XXN MS KELLY

PN312

Mr Flemington, your evidence a moment ago was that you thought the uncertainty that might be caused by rostering for availability could be managed by the way in which the availability periods were set as between the employee and the employer?‑‑‑Yes.

PN313

You said also that you didn't accept the proposition that that is a matter external to the proposed clause?‑‑‑Mm‑hm.

PN314

Can you identify for me where in the proposed clause the protection of the kind you describe is to be found?‑‑‑Yes - I can't.

PN315

Thank you. Do you accept also that under the proposed clause a part‑time employee might have a minimum of only eight hours per week, but can ultimately be rostered at ordinary hours up to 37 and a half hours per week?‑‑‑Yes.

PN316

Do you accept also that in relation to an employee who had eight minimum hours per week but was rostered to work a substantially greater number in any given week, that that would lead to inherent uncertainty for that worker?‑‑‑I would. However, the clause does state "as reasonably predictable hours of work" and also there is a protection in the clause that if the employee consistently works additional hours, they have the right to ask for that number of hours to be amended to the minimum number of hours. I believe that protection would allow consistent over‑rostering or consistent rostering significantly above the minimum hours - it would protect the employee in that regard.

PN317

There is no obligation in this clause that the guaranteed minimum reflect the reasonably predictable hours of work for a part‑time employee, is there?‑‑‑No.

PN318

In relation to the other protection you describe, the employer is not obliged to agree to the request, are they?‑‑‑No.

PN319

In relation to that second protection, it operates after a period of at least 12 months has elapsed?‑‑‑Yes.

PN320

In relation to the rostering of predictable demand, you give evidence that:

PN321

To meet increased need created by certain events or where employees have changed their availability, managers will check with part‑time employees as to their availability to work extra hours.

*** IAN FLEMINGTON XXN MS KELLY

PN322

Is that correct?‑‑‑Yes.

PN323

So where we have identified a potential gap in a roster, the manager will call the part‑time employee and ask if they're available to work?‑‑‑They will or they will use a casual employee instead.

PN324

Irrespective of which instrument applies, whether an award or an enterprise agreement, the process is that the manager will check with the employee before rostering the additional hours?‑‑‑Typically, yes, but, as I say, from my discussions with franchisees and certainly from my own experience of talking to people, they would potentially and in most cases use a casual employee first when they're trying to fill that gap on the roster, because of the need to call around part‑timers to potentially identify someone who can work that shift.

PN325

You say from your discussions with franchisees. You're referring to franchisees that are operating stores using an agreement?‑‑‑Yes.

PN326

You don't know the situation for franchisees operating stores using the award?‑‑‑I don't.

PN327

So your evidence is that for franchisees who operate stores using an agreement, they have a preference for casual employees for additional hours?‑‑‑If it's a shift that cannot easily be covered by a part‑time employee, then, yes.

PN328

That's the current situation?‑‑‑Yes.

PN329

When you say "easily covered by a part‑time employee", what do you mean? What bears on the question of whether it's easy or not?‑‑‑So there could be a part‑time employee who can work those hours and regularly works those hours, so they may not be able to - they may not need an additional person on that shift that now needs to be covered. They may make a decision in that regard. If not, they will seek out a casual employee. Depending on the amount of time they have, they may call part‑time employees, but there is a view that it is quite administratively burdensome to do so and so casual employees tend to be the preference.

PN330

Well, that is not your evidence at paragraph 43, Mr Flemington. Your evidence is that the managers will check with part‑time employees as to their availability to work extra hours?‑‑‑Yes, that's if they - my evidence there is referring to the fact if they identify a part‑time employee or intend to use a part‑time employee, they will need to check with them first.

*** IAN FLEMINGTON XXN MS KELLY

PN331

They need to check with a casual employee, as well, don't they?‑‑‑Yes, but the - yes, they do.

PN332

In each case the process is the same, is it not? An employee who may be available to work the additional hours is identified. Correct?‑‑‑Yes.

PN333

That employee is contacted to determine whether they can in fact work the hours. Correct?‑‑‑Well, if they're building a roster, no, for casual employees, because for a casual employee they provided a range of availabilities. The manager will roster them and then obviously the casual employee has the right to say, "No, 24 hours' notice", once that roster is published and not accept the roster. A casual employee is not called for every shift in the roster preparation.

PN334

You say that this preference for casual employees extends to the franchisees who operate using agreements that have what you describe as flexible work provisions - flexible part‑time provisions, I ought to say?‑‑‑Yes. The Red Rooster agreement particularly.

PN335

Preference for casuals remains even in Red Rooster?‑‑‑In covering shifts that part‑time employees may no longer be able to cover, yes.

PN336

I'm a bit confused, Mr Flemington. Which is the preference, for part-time employees or for casual employees?‑‑‑As a whole Craveable Brands and Red Rooster would love to see a greater use of part-time employees. The challenge at a restaurant level with using part-time employees to cover shifts outside of agreed availability is that going and seeking that agreement in writing and therefore going down that pathway deters a franchisee from using them and going down that pathway, and therefore use a casual instead. I think the preference in the short term when you're writing a roster versus the desired intent as a concept overall are different.

PN337

In relation to the current situation which is what I am asking you about, is it your evidence that Craveable Brand franchisees who presently apply enterprise agreements have a preference for casual employees at the point of building the roster?‑‑‑They have a preference for casual employees if the alternative is amending part-time employees' rosters and hours, yes.

*** IAN FLEMINGTON XXN MS KELLY

PN338

Well when you say amending part-time employees' rosters, this is before the roster has been prepared?‑‑‑Yes, but the Red Rooster agreement does require a franchisee on the recruitment of that part-time employee to agree hours, days and it's fairly similar in nature to the award provision as it stands at the moment. So the need to then alter agreements in writing exists in the Red Rooster agreement as it stands.

PN339

Do you have data, Mr Flemington, about the number of casual employees used to fill vacancies at the roster creation stage?‑‑‑No.

PN340

Do you have any data about the number of part-time employees used to fill vacancies at the rostering stage?‑‑‑No, I don't.

PN341

Do you have any empirical evidence at all about these matters?‑‑‑No.

PN342

That evidence could be obtained, could it not, by taking a sample from workplaces over a period of time?‑‑‑It could.

PN343

Craveable Brands has taken no steps to obtain that information has it?‑‑‑No, because we believed asking the franchisees who operate the restaurants and complete those rosters yielded the same result.

PN344

How many franchisees did you ask for that information from?‑‑‑In terms of - - -

PN345

Six, isn't it?‑‑‑Correct, yes.

PN346

Three of whom you can't recall their names?‑‑‑Correct.

PN347

Are you able to tell the Commission which - leaving aside the three we've identified - which stores were covered?‑‑‑Off the top of my head, no.

PN348

Which states?‑‑‑Daniel McDowell is Queensland and he operates - he's a multi-site franchisee who I believe now has six restaurants. Bob Northy is Chicken Treat, WA, operates one restaurant, has previously operated up to three restaurants. Adrian Pinatsa in New South Wales in Oporto, operates one restaurant at the moment, used to operate two and is about to open a second restaurant.

PN349

So fewer than 10 store across a business that operates 567 stores?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN350

Now at Red Rooster restaurants, using the Red Rooster Agreement, where an amendment is made to a part-timer's agreed hours, a written agreement is recorded. Is that correct?‑‑‑Yes.

PN351

What does that written agreement look like?‑‑‑It specifies the - there's no standard template for it but it specifies the amendment from and to.

PN352

In relation to the Oporto restaurants covered by the award what does the written agreement look like?‑‑‑The same, we don't have a standard template or we don't provide our franchisees with a standard template for it but it is the amendment from and to in terms of their availability, or the agreement to work additional hours.

PN353

How many of the Oporto restaurants applying the award, how many franchisees operating Oporto restaurants applying the award did you speak to about how long it takes to record in writing an amendment?‑‑‑None.

PN354

In relation to franchisees operating Red Rooster restaurants, how many of those did you speak to about how long it takes to record a written agreement?‑‑‑The six that I spoke to we spoke about it. They're operating the - obviously not all six were Red Rooster but we did talk about the written agreement and that it takes between 10 to 15 minutes per agreement, potentially more depending on the negotiation on the revised working pattern. That was a particular piece of evidence I do recall from Daniel McDowell in Queensland with his multi-sites.

PN355

What's the 10 to 15 minutes made up of?‑‑‑Contacting the employee, having the discussion, agreeing their revised working patter, so the from and to and then obviously documenting it.

PN356

So the 10 to 15 minutes is not the time it takes to document the agreement, it includes the time it takes to reach the agreement?‑‑‑Yes.

PN357

Of that 10 to 15 minutes, what portion of that time is spent documenting the agreement?‑‑‑I couldn't tell you empirically.

PN358

Now you gave some evidence a moment ago that there is a preference at Red Rooster for casual employees to work additional hours, is that correct?‑‑‑Yes.

PN359

Do you accept that the Red Rooster agreement requires that part-time employees have preference - - -?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN360

- - - for additional hours where they've indicated their availability to work them?‑‑‑Yes.

PN361

Does in fact - or do in fact those employees get that preference that's afforded to them under the agreement?‑‑‑My understanding would be not on every occasion.

PN362

So there are occasions on which part-time employees at Red Rooster stores are not given preference on the rostering of additional hours where those employees have indicated their availability to work those additional hours?‑‑‑I believe so, yes.

PN363

That evidence is based on your direct discussions with the six franchisees that you described to me earlier?‑‑‑Yes.

PN364

Again, have you seen any data that supports the proposition that part-timers are not given the preference afforded to them by the enterprise agreement?‑‑‑No.

PN365

If I can ask you to go back to the draft clause and have a look at draft clause 12.7 please?‑‑‑Sure.

PN366

Clause 12.7 says that:

PN367

An employee may be offered ordinary hours in addition to their guaranteed minimum.

PN368

Do you see that?‑‑‑Yes.

PN369

Do you accept that that requires Craveable Brands to contact the employee in order for the offer of additional hours to be made?‑‑‑Yes, it could be done through contacting them or it could be done through the publishing of a roster that they may call and say they cannot work.

PN370

So it's your evidence that you believe clause 12.7 would permit your company to publish a roster containing additional hours and that that would constitute an offer within the meaning of clause 12.7?‑‑‑Yes.

PN371

And what is your understanding of the mechanism by which the employee may agree to work the additional hours?‑‑‑That they would not contact the restaurant to say that they couldn't work them.

*** IAN FLEMINGTON XXN MS KELLY

PN372

Agreement by silence?‑‑‑Correct.

PN373

Again, I'm asking you about your understanding here of how this is to operate. From the time a roster is posted containing the offer of additional hours, how long would the employee have to make the objection that you describe?‑‑‑I would – I haven't – I would – my view would be, and it is my view, that it would be within 24 hours but there is nothing in the clause (indistinct).

PN374

So if an employee hadn't contacted Craveable Brands within 24 hours of the offer being made by way of the publication of a roster for the forthcoming seven days, that employee would be deemed to have agreed to work the additional hours?‑‑‑Yes. And I make that assessment because it's within their agreed availability.

PN375

At paragraph 47 you are dealing here with the question of unpredictable demand. And you say that "A manager may need to change a part-time employees' hours by agreement so that they start their shift earlier or they extend their shifts later." We are dealing here with a situation where the roster has already been posted, correct?‑‑‑Yes.

PN376

In that situation what currently needs to happen is that the manager has to contact the part-time employee to ask them if they will accept the additional hours, is that correct?‑‑‑Yes.

PN377

And that will be the same, will it not, under the proposed new clause which requires that once the roster posted it's alterable only by mutual consent?‑‑‑Yes.

PN378

And so both presently and under the proposed new clause Craveable Brands first has to identify an employee who may be able to work the additional hours?‑‑‑Yes. Yes.

PN379

Craveable Brands must then contact that employee and ask them if they are willing to work the hours?‑‑‑Yes.

PN380

And the employee may say yes or they may say no?‑‑‑Correct.

PN381

If the employee says no then Craveable Brands will under both situations need to call the next employee?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN382

Is that correct?‑‑‑Yes. Yes.

PN383

And so the only difference between the present situation and under the new clause for changes where the roster has been posted, is the requirement to record the agreement in writing?‑‑‑Yes.

PN384

And you are not able to tell the Tribunal how long the actual process of recording the agreement in writing takes?‑‑‑No.

PN385

Do you accept that if it was done via email it would take a very short period of time?‑‑‑Yes. Yes.

PN386

If it was done by text message it would take a very short period of time?‑‑‑Yes.

PN387

If it was done using an online system that had the capability it would take a very short period of time?‑‑‑Yes.

PN388

I asked you this earlier but I just want to confirm whether Craveable Brands has done any financial analysis of the impact of the changes it seeks on its business?‑‑‑No.

PN389

Do you know whether any of your franchisees have conducted such a financial analysis?‑‑‑No.

PN390

Did you ask the franchisees whether they've conducted such an analysis?‑‑‑No.

PN391

Did you ask them what their opinion is as to the financial impact on their business is?‑‑‑No.

PN392

You have given some evidence that there are a number of different agreements that apply to various parts of the business. Are you aware of whether there have been any applications made to the Tribunal to terminate those agreements, or any one of them?‑‑‑To my knowledge, no, there have been no applications.

PN393

Has there been any internal discussions at Craveable Brands about potential applications to terminate any of those agreements?

*** IAN FLEMINGTON XXN MS KELLY

PN394

MR DIXON: I object. I object on the grounds of relevance, your Honour. There cannot be any relevance to the matter before the Tribunal in respect of this line of questioning.

PN395

MS KELLY: There is some relevance. You will see that it's put (indistinct) that there are various conditions in some of these agreements that this employer seeks to have inserted into the award and the proposition is also put that that is a defensive strategy because of extant concerns about applications to terminate the agreements.

PN396

MR DIXON: In my respectful submission that has got no relevance at all to the matter before the Commission as to whether it meets the Modern Award objective.

PN397

JUSTICE ROSS: The motive for what might be one of a number of motives doesn't assist us in determining whether or not it meets the Modern Award objective.

PN398

MS KELLY: It may, your Honour, if the primary concern of this employer is financial.

PN399

JUSTICE ROSS: You can ask that question.

PN400

MS KELLY: Yes, your Honour. Do you accept, Mr Flemington, that the primary concern of Craveable Brands is financial?‑‑‑No.

PN401

Your evidence was that no modelling has been done at all of the financial effect of these changes on your business?‑‑‑Correct.

PN402

At paragraph 51 of our statement you deal with the benefits that part-time employees gain from the flexible part-time provisions to meet their lifestyle. What flexible part-time provisions are you referring to there?‑‑‑More so on the Chicken Treat business where a part-time employee is able to provide availability and be rostered up to 30 hours per week within that, without rewritten agreements and requirements to amend availability throughout that process.

PN403

Okay, so paragraphs 51 through to 55 are addressing the situation at Chicken Treat, is that the case?‑‑‑Paragraph 51 is, yes.

*** IAN FLEMINGTON XXN MS KELLY

PN404

And so the flexible part-time provision is the ability of Chicken Treat to roster them up to 30 hours a week within their agreed availability?‑‑‑Correct.

PN405

How is that a benefit to the part‑time employees?‑‑‑Because they are sought out and given preference for additional hours, so they get the benefit of being able to make short‑term changes to their availability but then also be sought out for additional hours and therefore gain from the additional payment that comes with that.

PN406

Because they don't have fixed hours of work, they may be able to work additional hours at their ordinary rate?‑‑‑Correct. Within the availability that they provide.

PN407

That is a benefit to them because they work more hours than they would work if you had to pay them overtime rates?‑‑‑It is a benefit to them because it gives them greater flexibility around their lifestyle, but still guarantees - not guarantees, but still provides them with access to the number of hours that they may receive.

PN408

You're going to have to help me with that a little bit more. For any given roster for these employees, they do not know which days of the week they will work on. Is that correct?‑‑‑Correct.

PN409

They do not know how many hours they will work on any given day. Correct?‑‑‑They will have a guaranteed minimum for the week, but you're correct with the number of hours per day.

PN410

So all they know at the beginning of any given roster is that they have a minimum number of hours per week?‑‑‑Mm‑hm.

PN411

Do you accept that means the employee is not able to plan for the week until the roster is posted?‑‑‑I accept that that potentially can present them with some challenges, but again typically in my experience an employee will be aware of their availability and plan their week around that or plan their availability to fit their personal lifestyle needs.

PN412

Yes, they are forced to plan their life outside of their availability because they do not know when they will be rostered to work?‑‑‑But it's the availability that they provided - that they've initially provided around their lifestyle needs. The employer isn't mandating availability that they provide.

*** IAN FLEMINGTON XXN MS KELLY

PN413

Do you accept that an employee who provides greater availability is likely to receive more hours of work?‑‑‑Potentially. It's not a guaranteed proposition though.

PN414

At the beginning of each week before the roster is posted, you accept that an employee will not know the number of hours they are to work, nor the days of the week on which they are to work?‑‑‑For the following week, yes.

PN415

They will not know their start or finish times?‑‑‑For the following week, yes.

PN416

You accept that that generates uncertainty for the employee?‑‑‑Potentially.

PN417

You accept that that can make it difficult for the employee to plan the coming week?‑‑‑Potentially.

PN418

You accept that the employee will not know the hours for which they require child care?‑‑‑Potentially.

PN419

Well, when you say potentially, why potentially? If an employee does not know the days of the week nor the hours of work and they require child care, you must accept that they do not know in advance the hours for which they will require that child care?‑‑‑Well, I would assume that - there are so many possibilities in that scenario; whether they need child care for the whole range of their availability, whether they have structured their availability because they know they have child care available through parents or friends or family, whatever that might be. I understand the nature of the question, but again it doesn't necessarily predetermine that child care has to be provided for every single shift as it arises or arranged in a short term nature in that way.

PN420

So you accept that it is possible that a worker will not know - - -?‑‑‑Yes, yes.

PN421

Again, tell me the benefit that you say employees gain from this system in which they do not know the hours of work, the days of work, nor their start or finish times?‑‑‑Because it gives them greater flexibility in terms of managing their external lifestyle around work and access to additional hours that they may not be utilised - - -

PN422

I'm going to stop you there?‑‑‑Sure.

PN423

Let's deal with the first of those.

*** IAN FLEMINGTON XXN MS KELLY

PN424

MR DIXON: Objection. I would ask that the witness be allowed to answer the question.

PN425

MS KELLY: Certainly. I apologise?‑‑‑Sorry, I've lost my train now.

PN426

Sorry, Mr Flemington. You had said the first benefit was around greater flexibility and you were telling me the second benefit that employees get from the flexible part‑time provisions?‑‑‑It is that they will - it will open the door to more hours for them because the greater availability and the ease of rostering within that would mean that casual employees would be used less frequently in my opinion than a part‑time employee as an alternate.

PN427

Dealing with the first of those, how is there more flexibility for a worker in not knowing what they are to be rostered and the number of hours than having their days and times set?‑‑‑Because it allows them to be more flexible with accommodating their own requirements and their own needs outside of work. If, for example, they wanted to guarantee 30 hours a week or 25 hours a week, but then they suddenly need next Friday off, then that can be accommodated because they have other hours in their schedule that they can roster up to maintain the 30 hours per week, but still accommodate that external need.

PN428

How is that different to the present situation where a part‑time employee can agree to work additional hours provided it's recorded in writing?‑‑‑It's the recording in writing component that - as I said in my earlier evidence this afternoon, it means that at times at the moment some franchisees may not engage a part‑time employee and go through that process. They may seek out a casual employee instead.

PN429

Well, you're dealing with a situation where a part‑time employee requests a change because they don't wish to work on a Friday?‑‑‑Mm‑hm.

PN430

You say this system makes it more flexible for them because the employer is more likely to agree to the request if it does not have to be recorded in writing. Is that correct?‑‑‑I believe that's what I said, yes, but I would agree with you that that is similar and the same as the current situation.

PN431

The second benefit you say is that part‑time employees are likely to get more hours?‑‑‑Mm‑hm.

*** IAN FLEMINGTON XXN MS KELLY

PN432

Explain to me why that is?‑‑‑As I've explained earlier on today I think some franchisees, because of the need to record in writing and so on, will seek out a casual employee to work additional hours; but part‑time employees may indeed want more hours themselves and they're avoided in terms of being used for those hours because of the requirement to record in writing and the administration that goes hand in hand with that.

PN433

So your evidence is that the franchisee in that situation would rather pay a casual at casual rates than spend a short period of time recording an agreement in writing?‑‑‑Yes. The reason I make that assessment from my discussion and on my experience, is based on the convenience and ease of doing so when it's a small business owner who is generally - certainly in our business is operating and working on the floor themselves, and not simply managing the business. They tend to work in the business.

PN434

So I'm clear, we talked about earlier the process of obtaining an additional employee being precisely the same for a casual and a part‑timer save as to the requirement to put the agreement in writing. Correct?‑‑‑Yes.

PN435

Your evidence is that of the six franchisees you spoke to, they would prefer to engage a casual and pay them more than to spend the short period of time recording the agreement in writing?‑‑‑(No audible reply)

PN436

Is that correct?‑‑‑Yes, yes.

PN437

Do you again accept that you have had no discussions with a franchisee who presently applies the award in their restaurants?‑‑‑Yes.

PN438

How many employees - I keep forgetting the name, I apologise. I suspect it because I'm vegetarian and hence I've never been into one?‑‑‑Chicken Treat.

PN439

Chicken Treat, thank you, thank you. How many employees of Chicken Treat did you speak to about the part-time - about the benefits you describe in paragraph 51?‑‑‑None.

PN440

Now Craveable Brands permanent employees have longer service than casual employees and you say that's because they have minimum hours guaranteed each week?‑‑‑Yes.

PN441

How many employees did you speak to to determine why they have the length of service they do?‑‑‑None.

*** IAN FLEMINGTON XXN MS KELLY

PN442

Now that situation that permanent employees have longer service than casual employees, that's the same irrespective of whether the award is applied to their workplace or the agreement?‑‑‑Yes.

PN443

There are other benefits to part-time employment are there not including paid personal leave?‑‑‑Correct.

PN444

Paid annual leave?‑‑‑Annual leave, yes.

PN445

Paid sick leave?‑‑‑M'mm.

PN446

All of those things might well be factors that mean a part-time employee has a longer period of service than a casual employee?‑‑‑Correct.

PN447

Do you accept also that there is a benefit to Craveable Brands from using part-time employees instead of casual employees?‑‑‑In what regard are you referring?

PN448

Well for example, paragraph 52 you say that:

PN449

Part-time employees are able to participate in training more regularly than casual employees.

PN450

?‑‑‑Yes.

PN451

Is it a benefit to Craveable Brands to use employees who have higher levels of training?‑‑‑Of course, yes.

PN452

Is it also fair to say that the longer period of service an employee has, the higher the probability that they will have skill in the performance of their work?‑‑‑Yes.

PN453

Greater loyalty to the business?‑‑‑I would hope so.

PN454

All of those things are benefits that Craveable Brands might obtain from using part-time employees?‑‑‑Yes, I think there are benefits both for the brand and also for the employee, particularly on the skills and the training and management experience side.

*** IAN FLEMINGTON XXN MS KELLY

PN455

Paragraph 54 you say that:

PN456

Craveable Brands managers rely on the flexible part-time employment provisions to be able to attract employees because of the minimum guarantee hours each week.

PN457

When you refer there to Craveable Brands managers, you're referring to the six that you spoke to?‑‑‑Yes. I'm referring to managers across the whole group but obviously based on the evidence from my own experience and from speaking to those franchisees.

PN458

A part-time employee in a restaurant to which the award applies has a minimum guarantee each week don't they, because they've got - - -?‑‑‑Yes.

PN459

- - - set start and finish times?‑‑‑Yes.

PN460

So the minimum guarantee hours each week you describe in paragraph 54 it doesn't derive from flexible provisions you describe does it?‑‑‑Not directly, no.

PN461

The benefit you describe in the latter half of paragraph 54 that guaranteed hours each week allow a part-time employee to address matters like car finance, mobile phone payments, text books. That is the same for an employee under the award is it not who has agreed hours of work?‑‑‑It is. But the purpose of drawing the comparison there is probably - is not so much between the award or an agreement, it's a comparison between using a part-time employee versus a casual employee if a part-time employee wasn't (indistinct). Because obviously the casual wouldn't have those guaranteed hours.

PN462

Well except, Mr Flemington, you say in the first sentence of paragraph 54 that:

PN463

These managers rely on the flexible part-time employment to attract employees because of the minimum guaranteed hours each week.

PN464

?‑‑‑M'mm.

PN465

But you agree with me, don't you, that there's a minimum guarantee whether you apply the award or the agreement?‑‑‑I do, yes, yes.

*** IAN FLEMINGTON XXN MS KELLY

PN466

Now paragraph 58 you give some evidence about the requirement to pay overtime for part-time employees who work additional hours is a significant cost. Have you done any analysis or assessment of what that cost is?‑‑‑No.

PN467

Have you done any analysis or assessment of the number of additional hours allocated to casual employees as against part-time employees?‑‑‑No.

PN468

Are you able to quantify the second sentence of that paragraph where you say:

PN469

Engaging casual employees for the additional hours of work over part-time employees occurs.

PN470

?‑‑‑No.

PN471

In the third sentence you say:

PN472

Part-time employees -

PN473

Sorry:

PN474

Craveable Brands restaurants part-time employees need to be able to fluctuate their hours to cover the leave and availability of other crew members without Craveable Brands being required to pay a penalty.

PN475

It's not true to say that that's what the part-time employees need, is it, it's what Craveable Brands wants?‑‑‑It would be beneficial for the brand, yes.

PN476

The optimum situation for the part-time employees is that they are given the opportunity to work the additional hours while being paid the overtime rates, correct?‑‑‑Yes.

PN477

Now at paragraph 59 you say that:

PN478

If Craveable Brands operated on the award for all brands then because of the requirement to pay overtime on additional hours worked for part-time, Craveable Brands would employ more casuals than part-time employees.

*** IAN FLEMINGTON XXN MS KELLY

PN479

Do you see that?‑‑‑Yes.

PN480

You accept that Craveable Brands currently employs twice as many casuals as part-time employees?‑‑‑Yes.

PN481

You accept also that you have no data at all about the allocation of additional hours as between part-time employees or casual employees?‑‑‑Yes.

PN482

You accept that you've done no analysis of the financial impact of the change that your company is supporting?‑‑‑Yes.

PN483

You accept that you've done no financial or other comparison of present situation and the situation that would pertain if the new clause was introduced?‑‑‑Yes.

PN484

In relation to paragraph 60 of your affidavit, you say in subparagraph (a):

PN485

Whenever a part-time employee changes their availability then under the award you would need to have the manager and the part-time employees sign off in a written document to the change.

PN486

Do you accept that the award doesn't have a concept of availability in it?‑‑‑(No audible reply)

PN487

There's set hours under the award, is there not?‑‑‑Yes, so - correct, and so I'm using their set hours as a change to the term availability to their set hours.

PN488

That's the same in subparagraph (b)?‑‑‑Yes.

PN489

That process is followed, as we discussed, in relation to the stores using the Red Rooster agreement?‑‑‑Yes.

PN490

And it's currently followed in relation to the 87 Oporto stores applying the award?‑‑‑Yes.

PN491

You've had no discussions with any of the Oporto franchisees about the amount of time that process takes?‑‑‑No.

*** IAN FLEMINGTON XXN MS KELLY

PN492

Now, Mr Flemington, given that you've not had a conversation with any franchisee that follows a process of recording changes in writing, and that you don't know how long that process takes, do you accept that Craveable Brands' primary interest in this change is to achieve a financial advantage for its business?‑‑‑No.

PN493

Do you accept that Craveable Brands wants to be able to engage more part-time employees because they bring certain benefits to the business, such as length of tenure, stability and training?‑‑‑I believe that those benefits are mutually beneficial.

PN494

But do you accept that Craveable Brands wants to employ more part-time employees, because those employees have those attributes?‑‑‑Yes.

PN495

And it wishes to employ fewer casual employees because of the transient nature of that employment?‑‑‑Correct.

PN496

But Craveable Brands wishes to pay part-time employees in the same manner as it does for casual employees but without casual loading?‑‑‑No.

PN497

JUSTICE ROSS: I'm not sure I follow the question.

PN498

MS KELLY: Yes, your Honour. You accept that Craveable Brands wants to pay part-time employees irrespective of their base number of hours at the ordinary rate up to 38 hours per week?‑‑‑Yes.

PN499

You wish to have the flexibility to roster them on any day for at least the minimum number of hours within the availability windows they provide?‑‑‑Yes.

PN500

You accept that doing so will generate a financial advantage for your business?‑‑‑No, because I would need to weigh up the fully loaded costs of the annual and personal leave being loaded into that scenario.

PN501

You give that answer despite saying at paragraph 58 that the requirement to pay overtime is a significant cost which is prohibitive?‑‑‑Yes.

PN502

So you give that evidence without in fact knowing what the cost is?‑‑‑Yes.

*** IAN FLEMINGTON XXN MS KELLY

PN503

And you give that evidence without knowing the financial impact on your business?‑‑‑Yes.

PN504

Mr Flemington, can you tell me what do you see as being the additional benefit that your company would gain from the proposed award clause that you do not gain through the terms of the enterprise agreements that are in place?‑‑‑I'm sorry, can you just – so, just explain to me that question again?

PN505

Yes, of course. Is there a benefit that your company would obtain from the proposed new award clause over and above the benefits you can obtain from enterprise agreements with flexible part-time provisions in them?‑‑‑There's no benefit of the award clause versus the flexible part-time clause as it stands in the Chicken Treat agreement, which is where the flexible part-time clause sits.

PN506

What about Red Rooster, Mr Flemington?‑‑‑So the award clause, the draft that we are proposing or supporting, would give the franchisees greater flexibility, yes.

PN507

When you say greater flexibility, what specifically are you referring to?‑‑‑It would avoid – it would remove the requirement for written agreements, and potentially as a virtue of that increase the use of part-time employees versus casual employees in their workforce.

PN508

That's everything. Thank you.

PN509

JUSTICE ROSS: Thank you. Mr Dixon, re-examination?

RE-EXAMINATION BY MR DIXON [5.02 PM]

PN510

MR DIXON: Thank you, your Honour. Mr Flemington, at the beginning of your cross-examination you were asked about the process you engaged in in consulting with franchisees?‑‑‑Yes.

PN511

You indicated that you had consulted directly with six franchisees, and you went on to say that you also over the last 18 months consulted with, as I understood your answer, the Franchise Advisory Council members ‑ ‑ ‑?‑‑‑Yes.

PN512

‑ ‑ ‑over the 18 month period?‑‑‑Yes.

*** IAN FLEMINGTON RXN MR DIXON

PN513

I don't think you elaborated on that, but can you tell the Commission what you were referring to in the consultations that took place over that 18 month period with council members?‑‑‑So the context was the comparison of using a casual employee versus a part-time employee under the award versus our existing agreements, and the flexibility of the award or otherwise versus the existing enterprise agreements, and that was in the broader context of re-negotiating and enterprise agreement now or not.

PN514

Yes. But was there any particular issue that you were seeking to address?‑‑‑It was a comparison of a casual versus a part-timer from a cost perspective and versus our current agreements.

PN515

When you say the discussion took place over an 18 month period, how regularly were those discussions held?‑‑‑So part-time discussion was raised directly in the FAC meetings that I've outlined in the evidence on that date, and then it has been raised as a side bar issue, but not directly at a number of the Franchise Advisory Councils since then. It hasn't been an ongoing direct consultation.

PN516

When you gave evidence in relation to the presentation you'd given, or presentations that had been given at State council meetings, you were asked whether you elaborated on it, and as I understood you to say, you elaborated on the complexity of part-time versus casual?‑‑‑That's right. And the written agreement components.

PN517

Just can you explain what you meant by the complexity of part-time versus casual?‑‑‑Yes. So it was the requirement for a written agreement and going above additional hours, and the challenges that might present a franchisee if, for example, somebody hadn't shown up for their shift and they needed somebody to work an extra 30 minutes, that might take them over their agreed maximum hours because that's a period of time that you might not call somebody else in for a shift but you might ask the people that are on the shift to work for an additional 30 minutes or so.

PN518

And was there discussion about what you might do to try and overcome that identified complexity?‑‑‑There was, and at the time because we weren't turning our mind an award review at that point in time the discussion was that it would actually – from a franchisee's perspective the discussion back was that they would use a casual employee or not actually give those additional hours to a part-time employee because of the cost.

*** IAN FLEMINGTON RXN MR DIXON

PN519

Again, in the context of consultation and in relation to questions asked about the group consultant you started an answer saying those within the six identified persons that you consulted you were relying on – my note is in part, you said something along the lines of, "experience about, and knowledge of the awards." Did I understand that correctly, that they were consulted for that reason? Was that your evidence?‑‑‑Yes, so they are very familiar with the award that underpins the agreement.

PN520

MS KELLY: I - - -

PN521

JUSTICE ROSS: Yes, don't lead, Mr Dixon.

PN522

MS KELLY: And also, how can this witness give evidence of the level of expertise of another person?

PN523

JUSTICE ROSS: Yes.

PN524

MR DIXON: I accept that. I accept that. Now in relation to paragraph 42 of your statement you were talking about availability to accommodate their own personal circumstances and you said you were relying on two things for the evidence that you gave there in relation to the frequency of requests. The first item was your own experience?‑‑‑Mm-hm.

PN525

What is the experience that you refer to as to your knowledge of the frequency of requests by part-time and casuals to amend availability?‑‑‑I have been a restaurant manager at McDonald's so I've worked in that environment, so the teenagers, and building their own social lives around – or their own personal commitments around their work. I'm familiar with my own personal experience with that.

PN526

And for how long was that experience?‑‑‑I was a restaurant manager for six years.

PN527

You were also then asked about a particular example about a student and the student having a class at a particular time. What is your understanding of how, if a student raises the question that they now have a particular class that they've got to attend to, how is that accommodated within the rostering process?‑‑‑Their permanent availability will (indistinct) to be altered so that they never get rostered and they don't have to request that off, week in, week out.

PN528

In relation to the consultation you had with the three identified franchisees who have the six stores, the three previous restaurants and the two previous restaurants. Do you have any basis to think that those stores are not representative?‑‑‑No.

*** IAN FLEMINGTON RXN MR DIXON

PN529

And in relation to paragraph 58 of your affidavit, you were asked questions about the second sentence and I think you said you carried out no analysis. Is that correct?‑‑‑Yes.

PN530

What is the basis of the opinion that you there set out?‑‑‑For part-time employees to be considered for those shifts a franchisee would consider them - if they didn't have to enter the written agreement and pay overtime, otherwise they may turn into a casual employee.

PN531

Thank you. Just returning to the quarterly state meetings that you refer to, how many meetings did this issue - was this issue raised at more than one state meeting, quarterly meeting, about the complexity of part-time versus casual?‑‑‑It was definitely raised at one formally with slide presentations and it's been referenced in subsequent meetings, and I can recall at least one where it's been referenced as part of a broader discussion.

PN532

So at the second one that you've just referred to, do you know how many franchisees attending that meeting?‑‑‑Again, not off the top of my head but it would be the majority of franchisees in every state, and by majority I mean more than 50 per cent of the franchisees in each state.

PN533

Thank you. Your Honour, would you bear with me for a moment. That is the re-examination, if the Commission pleases.

PN534

JUSTICE ROSS: Thank you. Mr Flemington, you were just asked some questions about the consultation you undertook in the preparation of the affidavit?‑‑‑Yes.

PN535

And you were asked about the meetings, the FAC meetings?‑‑‑Yes.

PN536

It was my recollection that the three franchisees that you identified out of the six that you said you directly consulted, those three are also members of the FAC, is that right?‑‑‑That's correct.

PN537

Thank you. Nothing further for the witness? No. Thank you. The witness can be excused. Thank you for your evidence, Mr Flemington?‑‑‑Thank you.

<THE WITNESS WITHDREW [5.12 PM]

*** IAN FLEMINGTON RXN MR DIXON

PN538

JUSTICE ROSS: Can I just raise something with the parties. There was an earlier discussion about cross-examination - and I don't raise this critically, Ms Kelly - and how many would be required and how long it might take. Bearing in mind this witness was estimating to be 30 minutes and we've been here for two and a bit hours - - -

PN539

MS KELLY: I was wondering if we were going to get away with that, your Honour, but you noticed.

PN540

JUSTICE ROSS: Yes. Well, I just thought it may be useful if perhaps the representatives of the three parties have a conversation about the scheduling and I'll list the matter for telephone mention some time towards the end of next week.

PN541

MS KELLY: Certainly, your Honour.

PN542

JUSTICE ROSS: But if you could have a conversation before then, and bearing in mind that our preference is for you to over list the witnesses on a day so that we don't end up with spare time at the end of day one, bearing in mind we've only got two days listed for the matter, okay?

PN543

MS KELLY: Certainly.

PN544

JUSTICE ROSS: So if I can leave that with each of you to give some thought to. Is there anything else?

PN545

MR DIXON: I may be corrected on this, your Honour, but I'm not sure whether the matter has actually been listed for two additional days.

PN546

JUSTICE ROSS: It is only one.

PN547

MR DIXON: Which might reinforce what your Honour has just said, if I may say so respectfully.

PN548

JUSTICE ROSS: Sure. We will see how your discussions go and my chambers will be in touch with you to organise a time for a mention of the matter towards the end of next week. Thank you very much. We will adjourn.

ADJOURNED INDEFINITELY [5.14 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

IAN FLEMINGTON, AFFIRMED..................................................................... PN110

EXAMINATION-IN-CHIEF BY MR DIXON.................................................. PN110

EXHIBIT #AI GROUP1 AFFIDAVIT OF IAN FLEMINGTON................... PN143

EXHIBIT #AI GROUP2 DOCUMENT IDENTIFYING 10 RED ROOSTER RESTAURANTS................................................................................................................................. PN143

CROSS-EXAMINATION BY MS KELLY....................................................... PN145

RE-EXAMINATION BY MR DIXON............................................................... PN509

THE WITNESS WITHDREW............................................................................ PN537