PN1

JUSTICE ROSS: Since we've only got people in Sydney, it might be easiest if we just take the appearances. There's no need to stand. If we just start from my left and move across.

PN2

MR A DOWDLE: Dowdle, initial A, for the IEU. With me I have Ms C Matthews from the IEU.

PN3

JUSTICE ROSS: Thank you.

PN4

MR DOWDLE: She will be the main speaker today, your Honour.

PN5

MS N DABARERA: Your Honour, if the Commission pleases, Dabarera, initial N, for United Voice. With me is Mr S Bull.

PN6

JUSTICE ROSS: Thank you.

PN7

MS S WHISH: Whish, initial S, on behalf of the Australian Childcare Alliance, Australian Business Industrial, the New South Wales Business Chamber, the National Outside School Hours Services Alliance and JAG; the Junior Adventures Group.

PN8

JUSTICE ROSS: Thanks, Ms Whish.

PN9

MS N SHAW: Shaw, initial N, for AFEI. My colleague is Ms M Nori.

PN10

JUSTICE ROSS: Thank you.

PN11

MS I ARRABALDE: Arrabalde, initial I, appearing as an individual.

PN12

JUSTICE ROSS: All right. Thank you. I issued a statement yesterday just to make sure that we had the correct list of witnesses. I would also note that since that was issued we have received a reply submission on behalf of - well, ABI on behalf of its various interests; a reply submission by United Voice; a reply submission by IEU; and a reply statement of Ms Ana Mravunac. We've also got a request for a confidentiality order by ABI, which will be referred to Clancy DP and he will deal with that separately.

PN13

Now, with those sort of additions, can I firstly clarify that the list in the statement about the submissions that are before us and the witnesses are accurate. Does anyone have any corrections to that list?

PN14

MS DABARERA: Your Honour, for United Voice, with our witness statements there is an additional witness statement that has been left off the list.

PN15

JUSTICE ROSS: Right, okay.

PN16

MS DABARERA: That is Ms Preston Warner. Her witness statement was filed with our initial submissions on 15 March.

PN17

JUSTICE ROSS: All right. Thank you. What can you tell me about Ms Warner? I'm just really trying to ascertain whether she is an expert or whether she is from a child care centre.

PN18

MS DABARERA: She is a member witness who is an educational leader and acts as responsible person, as well.

PN19

JUSTICE ROSS: All right. Thank you. Anyone else?

PN20

MS WHISH: Your Honour, I do have some amendments to make to that list.

PN21

JUSTICE ROSS: Sure.

PN22

MS WHISH: Which will assist the parties today. We actually have the withdrawal of three of the ACA statements, which I'm sure the parties are pleased about.

PN23

JUSTICE ROSS: Yes. Not just the parties, Ms Whish.

PN24

MS WHISH: Yes. That includes, if we go from the top of the list on the statement - - -

PN25

JUSTICE ROSS: Yes.

PN26

MS WHISH: - - - Kristel Smylie in the middle there.

PN27

JUSTICE ROSS: Yes.

PN28

MS WHISH: Katie Ann Gibbs, who is just above her.

PN29

JUSTICE ROSS: Bear with me for a moment. Yes, the two reply subs.

PN30

MS WHISH: And it's also Gary Carroll who sits underneath, so those three have been grouped together in the reply submissions.

PN31

JUSTICE ROSS: Yes, all right. Any other changes? No? All right. Whilst I'm dealing with the ABI witnesses, Ms Whish, I had been working under the assumption that Dr Fenech was the only expert witness. In reading through the statements and particularly the statements of one of your witnesses, Ms Viknarash, the first witness - you probably don't have it there, but at para 14 she says:

PN32

Given my involvement in the above roles -

PN33

and she had set out her employment history before -

PN34

I believed I have gained specialist knowledge of the early childhood education and care sector.

PN35

That's sort of the language of an expert, but I had rather taken the evidence to be evidence from her as a witness of fact rather than an expert witness. Am I wrong about that or are you putting her forward as an expert?

PN36

MS WHISH: No, she is not being put forward as an expert.

PN37

JUSTICE ROSS: All right.

PN38

MS WHISH: She wasn't engaged as an expert.

PN39

JUSTICE ROSS: No, that's fine.

PN40

MS WHISH: She is just purporting to explain her experience and where any of her opinions might come from.

PN41

JUSTICE ROSS: Sure. If we can go through ABI's witnesses first and deal in this part with who is going to be required for cross‑examination, and then for how long is the estimate. If I can go to the unions and if we just run through ABI's witnesses, bearing in mind that Gibbs, Smylie and Carroll are no longer on that list; so there are some 14 witnesses.

PN42

MS WHISH: Your Honour, might I interrupt?

PN43

JUSTICE ROSS: Sure.

PN44

MS WHISH: The parties have been privately discussing somewhat of a witness schedule.

PN45

JUSTICE ROSS: Fine.

PN46

MS WHISH: But it might be useful for you to have a copy.

PN47

JUSTICE ROSS: Sure. Absolutely it would be.

PN48

MS WHISH: That would help us as of today.

PN49

JUSTICE ROSS: Yes, yes.

PN50

MR BULL: I thank my friend for doing this.

PN51

JUSTICE ROSS: So do I.

PN52

MR BULL: Somebody had to.

PN53

JUSTICE ROSS: I've got in front of me a draft witness schedule with nothing in it, so anything you've got will be an improvement.

PN54

MR BULL: We can't take credit. It's Ms Whish - - -

PN55

JUSTICE ROSS: Look, can I raise just based on this at a quick glance, Ms Whish, and it probably almost follows from it, I had a discussion with the bench yesterday just about the number of witnesses and it seemed that a reasonable proportion - and that seems to be borne out by this document - would be cross‑examined. Given the time we have next week, each of us has a concern that you would end up being quite compressed in your closing submissions. There are a range of claims before us.

PN56

More importantly, from our perspective at least, we would benefit from - and I don't say this to suggest you would do otherwise - a considered submission about what findings do you want to draw from the evidence. When I say "considered", I mean by reference to the transcript that might have emerged, those sorts of issues, and for that reason we would contemplating dealing with the witness evidence next week, then giving you an opportunity - however long you required - to put in that short submission about what findings you're seeking from the evidence.

PN57

We want more than just, "Well, we seek three findings and here they are." What we mean by that is what is the evidence you're drawing on in support of those findings and then a date for closing oral submissions. Look, on this one just with past experience - I mean, a witness might get sick. We try and put them on another day and then we end up with - I think we run a risk that parties who are cross‑examining feel under pressure to rush through it, lest they not be given any opportunity or much of an opportunity to do a closing submission.

PN58

Also it doesn't really - well, although it was a long time ago, from my own experience as an advocate it's quite tiring cross‑examining. By the time you get to what will probably be, well, say 4 o'clock on Thursday, I'm not sure we're going to get the best out of you or give you the best opportunity to advance the points you want to advance. I wanted to raise that and perhaps if you can comment now, and we can see where we go.

PN59

MS WHISH: Your Honour, we would be comfortable with that approach. I'm imagining that's verbal submissions on a date in the future - - -

PN60

JUSTICE ROSS: Yes, that's right.

PN61

MS WHISH: - - - as opposed to formal written submissions.

PN62

JUSTICE ROSS: The only further written document would be, "Here are the findings we seek and we say it's supported by the evidence of Bloggs at" - with the exhibit number and the transcript reference, if relevant, et cetera. That then allows us to see what you're seeking to draw from the witnesses, us to read the material that relates to that point and, look, frankly, it makes it easier when you come to write because you don't spend a lot of time on evidence that people aren't relying on.

PN63

There is some of that in this material. There is evidence that, you know, on its face it doesn't directly seem to relate to the claims and it sharpens our examination of the evidence if we know what it is you're trying to draw from it. It's obvious in some cases, it's less obvious in others. All right?

PN64

MS SHAW: Yes, we would be agreeable to that, as well.

PN65

MR BULL: We think that's good. We had a brief discussion prior to you coming onto the bench.

PN66

JUSTICE ROSS: Yes.

PN67

MR BULL: We think that's an appropriate way to proceed.

PN68

JUSTICE ROSS: Yes. Look, you're just not going to get enough time and from our perspective, as well, we would prefer an opportunity I think to absorb the evidence; to look at how you see it and then frame some questions. For example, in reading through some of the submissions - if you take ABI's about the proposal around rostering changes, a question that I was going to put to you is - and this is illustrative. I've got questions for not all the claims, but it's, well, do you imply from what you're putting that a person may get no notice of a roster change and in what circumstances might that work unreasonably. If, for example, they're told an hour before they finish that they've got to go on, what flows from that?

PN69

What we would do I think if we were adopting this course, which seems to be the agreed position, if we've got questions it won't necessarily exhaust the questions; but if we have questions for you we'll put them on notice. So each of you will see the questions before the oral hearing and that way you'll have an opportunity to think them through and respond. All right. I'll talk to my colleagues about that, but I think you can take it next week will be evidence based. Was there anything you wanted to say about the schedule? Is this the agreed position between all of you?

PN70

MS WHISH: Your Honour, I might speak to that.

PN71

JUSTICE ROSS: Sure.

PN72

MS WHISH: It's quite flexible in that obviously we need to remove those three witnesses from today.

PN73

JUSTICE ROSS: Yes.

PN74

MS WHISH: But I have an understanding from the parties that this is when their witnesses are available, so while there might be some shift in terms of length for each witness, once we hear from the parties today as to who they specifically propose to cross‑examine and for how long, generally speaking that order is appropriate for all the parties.

PN75

JUSTICE ROSS: All right. Let's just go - - -

PN76

MS MATTHEWS: Your Honour, there is just one matter - - - -

PN77

JUSTICE ROSS: Yes, we'll just start from the left and just go through what you want to say about the schedule, and if there is anyone there that you don't require for cross‑examination. Just while we're on cross‑examination - this applies to both groups because there are multiple interests on each side - witnesses aren't going to be cross‑examined twice about the same thing. If you give some thought to that as you're looking at your cross‑examination and perhaps divide it up by subject matter or however you want to approach it, and have some discussions amongst yourselves before you launch off.

PN78

We dealt with a similar issue in the penalty rates case to avoid exposing a witness to multiple cross‑examination by parties adverse to the interests of the organisation calling the witness. That's not to say that, for example, in relation to an ABI witness, that both IEU and United Voice can cross‑examine; of course you can. All I'm putting is don't ask the same questions. It's both out of fairness to the witness but also efficiency. All right. With that observation, what did you want to - - -

PN79

MS MATTHEWS: Thank you, your Honour. From the IEU's point of view, very much our requests have been accommodated. However, we did indicate I think that Julie Frend was only available on Wednesday afternoon and so we're checking with her to - - -

PN80

JUSTICE ROSS: Julie Frend, yes.

PN81

MS MATTHEWS: She is, at the moment, scheduled for - - -

PN82

JUSTICE ROSS: Well, she could replace Katie Gibbs - I'm sorry, no, she couldn't. That's Thursday.

PN83

MS MATTHEWS: Yes. I think she has also got the problem that she is a telephone link from Gunnedah.

PN84

JUSTICE ROSS: All right.

PN85

MS MATTHEWS: So there are some limitations as to when that is possible.

PN86

JUSTICE ROSS: How long do you think you're likely to be with cross‑examination?

PN87

MS WHISH: I have Ms Frend down for approximately 30 minutes.

PN88

JUSTICE ROSS: Well, couldn't you have Lisa James at 10.30, then Lindy Farrant, then we might take the break at 12.00 and have Julie Frend at 1.00 or 1.30. Would that be an option?

PN89

MS MATTHEWS: Yes, your Honour. We are consulting with her. She may be available earlier, but - - -

PN90

JUSTICE ROSS: Well, if she is not - if you can send this through as a soft copy version then we can adjust that on the way through, but I think I can probably leave that to you and ABI to - - -

PN91

MS MATTHEWS: Yes, we will.

PN92

JUSTICE ROSS: Are you wanting to ask any questions, Ms Shaw, of that witness?

PN93

MS SHAW: At this stage we are still giving consideration to which witnesses we will cross‑examine. I have been instructed that if we do, it would only be a five to 10‑minute - - -

PN94

JUSTICE ROSS: All right.

PN95

MS SHAW: It would fit into the schedule.

PN96

JUSTICE ROSS: Was there anything else?

PN97

MS MATTHEWS: Yes, Ms Mravunac, she may have difficulty travelling here by 9.30. She is not located in the city, so we would like her to maybe start a little bit later if that's possible.

PN98

JUSTICE ROSS: So you would be looking to swap her with Sarah Tullberg, for example?

PN99

MS MATTHEWS: Yes.

PN100

JUSTICE ROSS: ABI. I think Ms Tullberg's is - yes, is your witness.

PN101

MS WHISH: Yes. Look, generally speaking, moving the witnesses around is not a problem for us. All we have tried to do is keep - where a video-link has been proposed - those people in Melbourne together just for efficiency sake.

PN102

JUSTICE ROSS: Well, on that basis - they're both from Melbourne, so if you can swap them around, then that might work. All right. Anything else?

PN103

MS MATTHEWS: No, thank you.

PN104

JUSTICE ROSS: All right. Mr Bull?

PN105

MR BULL: Look, I imagine that with the ABL witnesses we are going to object to - - -

PN106

JUSTICE ROSS: Yes. I'll come to the objections in a minute, but, yes - - -

PN107

MR BULL: What I was going to say is that - and this is with respect to my friend - the statements do tend to be a bit formulaic and the same objections will be made. Obviously once we make the first set of objections and we discover the attitude of the bench towards our concerns - - -

PN108

JUSTICE ROSS: Yes.

PN109

MR BULL: - - - we're obviously not going to take as long to object to the subsequent statements.

PN110

JUSTICE ROSS: No, but it might be rather than, you know, going through 20‑odd statements on the first day, I think the course would probably be at the commencement of the proceedings on a day we will deal with objections for the witnesses to be called that day. You're right, look, I'd encourage you to have a discussion about them. Could I make one observation. Well, if we take the one I've got in front of me, Ms Viknarash, there is - well, one that I found at least sort of entertaining because of what happened in the plain language conference yesterday, is at paragraph 38 she says:

PN111

I often find awards are not simple or easy to understand. I find it confusing and difficult to adhere to all the requirements, et cetera, and it's inefficient for every centre to read two awards, et cetera.

PN112

Well, I mean, look, there's no application to merge the two awards so I'm not sure of the relevance of that. If it's any consolation I feel her pain, nor is there any application to express these awards in plainer language or anything like that. So the question that arises with that proposition is, well, what is the relevance to the matter before us? There are other elements in the range of statements that are more like submissions, so it's really - you can take it that the rulings will be applied in the same way to both sides.

PN113

You might have a discussion about how you want us to deal with statement that are in the form of submissions or whether you want them in, but they're a matter for weight. I imagine if that's the joint view, that the bench would probably be content with that course, but otherwise you take the objection. I agree with you, Mr Bull, that you'll have a pretty good idea after the first day about where - - -

PN114

MR BULL: I'm not a fan of having, sort of, you know, voir dires in a place like this.

PN115

JUSTICE ROSS: Yes.

PN116

MR BULL: As long as we have the opportunity, I suppose, to clearly indicate the bits that we say are rubbish and - - -

PN117

JUSTICE ROSS: Not relevant, yes.

PN118

MR BULL: Not relevant.

PN119

JUSTICE ROSS: Yes.

PN120

MR BULL: And leave it at that. That's fine. I don't want to go through, sort of, you know, paragraphs and sentences and have them struck out and so forth.

PN121

JUSTICE ROSS: Yes.

PN122

MR BULL: This tribunal can work out for itself what's relevant.

PN123

JUSTICE ROSS: Yes. Well, have a discussion with the other side and see if you can collectively work out how you want us to approach the evidence, and we'll do it as efficiently as possible.

PN124

MR BULL: The other I was going to raise is that we've got a lot of video-links.

PN125

JUSTICE ROSS: Yes.

PN126

MR BULL: We have some documents and we will be cross‑examining on those documents.

PN127

JUSTICE ROSS: With that, can I get you - and presumably you don't want to provide them in advance. Is that the - - -

PN128

MR BULL: Well, we're happy to.

PN129

JUSTICE ROSS: I mean to the other side.

PN130

MR BULL: Well, we've got them from the other side - - -

PN131

JUSTICE ROSS: All right.

PN132

MR BULL: - - - in most cases and we've had good cooperation in the sense that we've made requests and we've got most items - - -

PN133

JUSTICE ROSS: All right. Well, can I suggest this: you identify in respect of each witness you're going to cross‑examine which documents you're going to take them to. You advise ABI and my associate about that. If it's an ABI - well, it will be an ABI witness. If the ABI can undertake to draw it to the witness's attention and make sure they've got it in front of them, is that - - -

PN134

MR BULL: Well, the issue is, as you know, if you're going to cross‑examine witnesses by video-link - - -

PN135

JUSTICE ROSS: Yes.

PN136

MR BULL: - - - on documents, you need to have some coordination. I suppose I'm really asking for the Commission's assistance.

PN137

JUSTICE ROSS: Look, we can certainly have someone in the location with the document. Look, just to make it sort of idiot‑proof, it would probably be best if you identify the list of documents; attach the document. We'll put in bold on the document "Witness" and whoever the witness's name is, and then the time they're likely to appear and the location. We will make sure a Commission staff member is there at the time with that document.

PN138

MR BULL: Because what we'll probably have is a general bundle and then we'll have a bundle specific to each witness.

PN139

JUSTICE ROSS: All right. If you forward the stuff and if I've got any questions, I'll have a short telephone mention. Is the IEU going to want to put documents, as well?

PN140

MS MATTHEWS: Yes, I would imagine so.

PN141

JUSTICE ROSS: All right. Then the same thing applies, but if something arises and I'm not sure about what you want to do with a document, then I'll have a short telephone mention but only with the direct parties involved - the organisation calling the witness, those that are going to cross‑examine - just to try and sort out the details.

PN142

MS WHISH: Your Honour, would the timing of providing the Commission with any documents that the witness might need be the day before or the evening before and then they could be printed that morning?

PN143

JUSTICE ROSS: Look, I think we would need to know probably Thursday, just so we can organise to have it all done. Do you have any documents for the witness in Canada?

PN144

MS WHISH: I think there might be.

PN145

JUSTICE ROSS: All right. Well, you will need to sort that out between the two of you so that that witness has whatever you want to take her to. All right?

PN146

MS MATTHEWS: Your Honour, there is one matter. In terms of that time frame, as you would be aware the union is also involved in the equal remuneration case.

PN147

JUSTICE ROSS: Yes.

PN148

MS MATTHEWS: We have a filing date this Friday. You know, our counsel in this matter is the same as our junior in the other matter. I think we will have difficulty getting lists of documents to this Commission by Thursday.

PN149

JUSTICE ROSS: Well, you will have a difficulty doing it by Friday, but when are you going to do it, because we're on on Monday?

PN150

MS MATTHEWS: I realise that, but, I mean, in relation to the employer witnesses that are on, we won't be cross‑examining any of the UV witnesses so the first witnesses we will be cross‑examining will be those on Monday afternoon.

PN151

JUSTICE ROSS: Yes.

PN152

MS MATTHEWS: There are only two now listed, given that Ms Smylie is now out.

PN153

JUSTICE ROSS: Yes.

PN154

MS MATTHEWS: Both of those witnesses will be in Sydney.

PN155

JUSTICE ROSS: If they're in Sydney, don't provide the documents.

PN156

MS MATTHEWS: Yes.

PN157

JUSTICE ROSS: Just hand them up, have copies for the bench, but you don't need to provide the documents in advance for witnesses who will be appearing in person.

PN158

MS MATTHEWS: Thank you for clarifying that.

PN159

JUSTICE ROSS: Yes, I should have made that clear. I thought you were really talking about the ones who were in WA, Queensland, et cetera.

PN160

MR BULL: Should we send these bundles to your chambers?

PN161

JUSTICE ROSS: Electronically, yes.

PN162

MR BULL: They can be .pdfs and - - -

PN163

JUSTICE ROSS: Yes.

PN164

MR BULL: - - - that should be sufficient. We'll mark them reasonably clearly.

PN165

JUSTICE ROSS: Yes. That will be fine.

PN166

MR BULL: Paginate them and so forth.

PN167

JUSTICE ROSS: Perhaps if you identify what is to be a bundle that you're planning on giving to a list of witnesses and then what are documents that are only going to some of the witnesses or a witness.

PN168

MR BULL: What I'm proposing is we'll have a general bundle - - -

PN169

JUSTICE ROSS: Yes.

PN170

MR BULL: - - - with things like the award and other documents, then there will be a bundle specific to each witness.

PN171

JUSTICE ROSS: Yes, that's fine.

PN172

MR BULL: It will be marked and paginated - - -

PN173

JUSTICE ROSS: Yes.

PN174

MR BULL: - - - and should hopefully be seamless.

PN175

JUSTICE ROSS: Yes.

PN176

MR BULL: But I'm sure something will go wrong.

PN177

JUSTICE ROSS: Hope springs. Yes, look, if you can do it as soon as you can, we'll see how we go. The IEU should raise before the lunch break on the Monday what the position is in relation to documents for the witnesses the following day, because you've got those in Brisbane - - -

PN178

MS MATTHEWS: Yes, I can - - -

PN179

JUSTICE ROSS: - - - and those on the telephone in WA, more particularly; because if they're on the telephone we won't be able to hand them a bundle.

PN180

MS MATTHEWS: Yes.

PN181

JUSTICE ROSS: We will need to somehow get them a bundle. You might give some thought to that, too, Mr Bull. You have got Ms Hands, for example, who is overseas and will be telephoning in. Just give some thought to those two as ABI will have to do about the witness that is in Canada. It won't be any good telling us the morning that the witness is on in the afternoon if they're appearing by telephone because - - -

PN182

MS MATTHEWS: Yes, your Honour. Cn I just clarify, the ones which are marked - so if we look at the Tuesday.

PN183

JUSTICE ROSS: Yes.

PN184

MS MATTHEWS: I take it that Jae Fraser is appearing from the Commission in Brisbane.

PN185

JUSTICE ROSS: I've taken that to be the case unless it has got "telephone" next to it. Is that right, Ms Whish?

PN186

MS WHISH: That's correct. Where I've put "Brisbane, Adelaide, Melbourne", that intends for that person to appear from the Fair Work Commission in that respective city.

PN187

JUSTICE ROSS: Yes. So you've got McPhail later that afternoon by telephone in WA?

PN188

MS MATTHEWS: Yes.

PN189

JUSTICE ROSS: Then you've got, I think, Hands, who is telephone from overseas.

PN190

MS MATTHEWS: Yes. Thank you.

PN191

JUSTICE ROSS: All right.

PN192

MS MATTHEWS: We'll do everything we can.

PN193

MR BULL: What we might do in relation to the witnesses appearing on the premises, so to speak, we'll liaise with your chambers.

PN194

JUSTICE ROSS: Yes.

PN195

MR BULL: In relation to the witnesses appearing elsewhere - - -

PN196

JUSTICE ROSS: Liaise directly with - - -

PN197

MR BULL: - - - we'll liaise directly with the - - -

PN198

JUSTICE ROSS: I think that's right, yes. There's nothing we can do in respect of the witnesses who are appearing by telephone, so if you talk directly to the other side about that.

PN199

MS MATTHEWS: Yes, your Honour. I understand in relation to our two witnesses on Wednesday, Julie Frend and Lindy Farrant, that they are appearing on video-link is my understanding, that we have organised through your office.

PN200

JUSTICE ROSS: Video-link from?

PN201

MS MATTHEWS: One is Gunnedah Local Court and one is Parkes Local Court.

PN202

JUSTICE ROSS: Anything else about the schedule?

PN203

MS WHISH: A few more things, your Honour. Firstly, I've left a space for opening remarks, discussion, but does the Commission have any suggestions as to how it would like the case to open on the Monday?

PN204

JUSTICE ROSS: Look, I think probably a short opening statement which really just indicates, you know, you're pursuing X claims and you're calling these witnesses. If a particular witness relates to a particular claim, identifying that, but then we would probably use the time to deal with any objections. I wouldn't worry about a fulsome - you've put in written material, material in reply, you'll have a closing, so - yes. All right?

PN205

MS WHISH: Thank you. We do have one witness, Kerry Mahony, who - - -

PN206

JUSTICE ROSS: Yes, on the Thursday?

PN207

MS WHISH: Yes. He will require a hearing loop. I just wondered if you were aware whether or not that could be facilitated from the Adelaide Fair Work Commission.

PN208

JUSTICE ROSS: Not off the top of my head, but I think we have got hearing loops in every registry, in hearing rooms in each location, so that should be fine. We will make some inquiries and let you know later today, but it would obviously be more convenient for the witness if it was available in Adelaide. I would be surprised if we didn't. In fact, if we don't, I would probably take steps to make sure we do.

PN209

MS WHISH: Look, if it's not available, he's very comfortable speaking via telephone or we could possibly get him up to Sydney, as well.

PN210

JUSTICE ROSS: Sure. We will make the inquiry and let you know. Anything further from - - -

PN211

MS MATTHEWS: Yes, your Honour. Not in relation to the schedule, but in relation to material that has been produced or sought to be produced.

PN212

JUSTICE ROSS: Yes.

PN213

MS MATTHEWS: I understand that some material has been produced to United Voice. We would seek access to that material.

PN214

MR BULL: It has been provided to us and we're happy to cooperate with our friend in relation to providing the material. There is a confidentiality order though.

PN215

JUSTICE ROSS: Yes, there is.

PN216

MR BULL: So that's an issue which needs to be addressed.

PN217

JUSTICE ROSS: Is this the one where the confidentiality order is pending?

PN218

MS WHISH: That's correct. Look, for administrative ease and efficiency given that the hearing is on Monday, the order has been drafted so that it would apply to all the parties - any interested party - but it specifically keeps confidential documents that were produced under two requests from United Voice and one request to the IEU; but of course we're comfortable for any interested party to have access to that material if they wish to request it.

PN219

JUSTICE ROSS: All right. It sounds like you can sort it out with - - -

PN220

MS MATTHEWS: Thank you. I just wanted to - - -

PN221

JUSTICE ROSS: Can I raise one other matter. It may be the case that one of the bench members is not available for some or most of the evidentiary case; namely, me. I wanted to raise whether that's an issue for any of the parties. I will of course read the transcript and I'll have the benefit of your written submissions about what the findings are.

PN222

It's unlikely on the material that has been filed that there is going to be some killer credit point that you have to be watching the witness to pick up, but it more looks like it will be arising from cross‑examination and then you go to matters of weight, and how much you can rely on the statements that are in the witness's statement; but I wanted to raise it with you now, otherwise I'll need to make different arrangements.

PN223

MS MATTHEWS: No, we don't have an objection, your Honour.

PN224

MR BULL: We have no objection.

PN225

JUSTICE ROSS: Ms Whish?

PN226

MS WHISH: We have no objection, but would your Honour be minded to inform us who the other members of the bench are?

PN227

JUSTICE ROSS: The other two members? Well, they will be in Sydney. It will be Clancy DP and Lee C.

PN228

MS SHAW: No issues.

PN229

JUSTICE ROSS: Ms Arrabalde?

PN230

MS ARRABALDE: No.

PN231

JUSTICE ROSS: No? All right. Will you be cross‑examining any of the witnesses?

PN232

MS ARRABALDE: I don't think that's in my skillset. I know what - - -

PN233

JUSTICE ROSS: Well, you need to wait and see what the others do, I suppose.

PN234

MS ARRABALDE: Yes, exactly. I understand the job, that's what I can bring to this. I understand what it's like to work in early childhood and I understand what happens at different centres, so I think I can bring that sort of understanding, whereas I think some of the parties have more of a legal background. I know what happens, so I can understand what the witnesses are saying and why perhaps they're saying it, but I don't feel - - -

PN235

JUSTICE ROSS: Well, let me put it to you this way: if a witness is saying something that you don't think accords with your experience and you don't think is correct, then you will need to ask the witness a question about that. The question can be along these lines - because you'll be cross‑examining - that, "Well, you've said X, Y and Z. I don't think that's correct." You can put it as simply as this really. "My experience is X, Y and Z. What do you say about that?" then put that to the witness.

PN236

You have to bear in mind that you haven't put a witness statement in, so if you're simply going to put your submission in and your submission makes statements about, "Well, what this witness said wasn't right," or whatever, unless you've put that to the witness we can't take that into account out of fairness to the witness. So to the extent you disagree with what someone is saying, you need to ask them a question and put to them that, you know, "I put it to you that that's not right," and you have challenged that witness on that issue.

PN237

MS ARRABALDE: So would you suggest that while I'm listening to the witnesses and listening to perhaps the other party, just to write down questions that maybe haven't been asked that might bring some information that's useful? So just write them down and then maybe go last, after the - - -

PN238

JUSTICE ROSS: I certainly think you should go last.

PN239

MS ARRABALDE: Yes.

PN240

JUSTICE ROSS: Well, I'm not really going to make suggestions about how you want to run it. I want to identify for you out of fairness that if you don't challenge a witness about their evidence on a point you disagree with, then the risk you run is that we might accept the witness's evidence even though you put in your submission you don't agree with it. If you haven't challenged the witness, then out of fairness to the witness they haven't had an opportunity to respond to what you're saying so we wouldn't give your view weight in those circumstances.

PN241

I think it's not so much information that we might think is relevant that you're trying to elicit from the witness, because the witness has already given a statement. The party that has called them has identified with that witness the relevant bits that they're going to bring to the Commission. It's really if there is something the witness says that you don't agree with, that you think is wrong, then I think that's an area where you need to be alive to saying something about that.

PN242

MS ARRABALDE: All right.

PN243

JUSTICE ROSS: But, look, let's see how it develops and if you've got questions I'm sure they will be dealt with by my colleagues on the way through.

PN244

MS ARRABALDE: Thank you.

PN245

MS WHISH: Your Honour, while we have Ms Arrabalde here it might be a prudent time to mention that certainly ACA is not entirely clear whether their submissions were being put forward as evidence and whether or not either of the Arrabalde sisters were capable of being cross‑examined in light of that. We've assumed that their submissions are non‑evidentiary and submissions only, but I suppose that should be clarified before they attend the hearing and are possibly called as a witness.

PN246

JUSTICE ROSS: Yes. What is being put is you've put in submissions about it, you make a number of assertions of facts in there. I had worked on the basis that they were bar table statements, if you like. In other words, you weren't putting them forward as a witness statement and you didn't want us to treat them as evidence in the proceedings.

PN247

If you do want us to treat them as evidence of the facts of what you say, then you would need to go into the witness box and say, for example, that, "Everything I've said in my submission is true and correct," and that would be the end of your statement as it were, then the other parties would be able to ask you questions about your statement.

PN248

MS ARRABALDE: Yes, I'm happy for that. I explained to Sophie earlier that - not earlier, a few weeks ago when she did say, "Well, we might request some of your history; like your employment history, tax returns, things like that," and I said, "Well, we're making a claim for an education leader allowance and responsible person allowance." At this point I'm not employed as either of those things, so I'm trying to maintain a bit of a distance. I'm happy to be asked questions and I'm happy to say that what I've put forward is correct, so I guess - like, if they would like to ask questions, I'm happy to answer them.

PN249

JUSTICE ROSS: I'm not sure - - -

PN250

MR BULL: I can indicate we're happy to have a chat to the lay participant - - -

PN251

JUSTICE ROSS: Sure.

PN252

MR BULL: - - - about some of the issues you raised.

PN253

JUSTICE ROSS: Yes, I think that would probably be a good idea. Look, I think it's not so much whether you're happy to be asked - it's really how you want to run your case; whether you want to put it in as evidence or whether you want to rely on it as a submission. Can I suggest you take up Mr Bull's offer and have a chat with them, because the unions also have claims for similar allowances; then as long as you let Ms Whish know well in advance of the hearing - so in the next day or so - what course you're wanting to pursue.

PN254

There are two open to you. It's a submission, you've put it in in support of what you're seeking. Alternatively, you want to treat it as evidence, in which case you would need to go into the witness box and say, "The statements I've made in this submission are true and correct," and then questions would be asked of you in cross‑examination. All right?

PN255

MS ARRABALDE: Okay.

PN256

JUSTICE ROSS: So have a think about that. I don't think forming a view about it one way or another at the moment is a good idea. I think just reflect on it, have a chat with Mr Bull and see what you want to do, and let Ms Whish know.

PN257

MS MATTHEWS: Your Honour, we would like to know, as well, obviously, because - - -

PN258

JUSTICE ROSS: Sure, yes, everyone will know. If you can let the Commission know, as well, what you've decided to do.

PN259

MS ARRABALDE: Sure.

PN260

JUSTICE ROSS: All right.

PN261

MS ARRABALDE: Thank you.

PN262

JUSTICE ROSS: We'll let everybody else know. Anything else?

PN263

MS DABARERA: Your Honour, I just wanted to raise one matter arising from the statement released yesterday. This is in relation to the claims that are being run and in point 10 it's listed that Business SA is running claim - - -

PN264

JUSTICE ROSS: Yes. That was in an earlier statement. In fact they have filed no material. They said they were going to pursue one claim at one point in time.

PN265

MS DABARERA: Yes.

PN266

JUSTICE ROSS: I think it was earlier last year, but we've not seen anything from them since. Do you know anything about that, Ms Whish?

PN267

MS WHISH: I had an indication from business SA that they were going to withdraw that claim.

PN268

JUSTICE ROSS: All right. I must admit I had proceeded on the basis that, well, even - perhaps if you can clarify it. They should formally withdraw it, that would be easier, but I was working on the assumption, well, if they don't come, they don't make submissions, they don't call evidence, we probably wouldn't be considering the claim.

PN269

MS DABARERA: Yes, your Honour. We would also note that in the last summary of substantive submissions, S9, their claim in relation to casual employment was - it's stated that it was being dealt with by the part‑time and casuals Full Bench.

PN270

JUSTICE ROSS: Yes. This was the minimum engagement thing, wasn't it?

PN271

MS DABARERA: This is about engaging casuals for temporary and relief purposes.

PN272

JUSTICE ROSS: Yes, I'm sorry. They wanted that bit removed from the award, yes.

PN273

MS DABARERA: Yes, that's correct. We just wanted to clarify that as it was our view, as well, that they hadn't made those submissions; that it may be withdrawn.

PN274

JUSTICE ROSS: Yes, I certainly haven't seen anything. Ms Whish, do you have something?

PN275

MS WHISH: No, just that the last conversation I had had with Business SA and given that they haven't put on any submissions, I had understood they were withdrawing it.

PN276

JUSTICE ROSS: Yes, okay. Anything else? All right. Thank you very much. If you could provide the soft copy of the witness list and if you come up with any further changes or nuances, let us know. I'll adjourn.

ADJOURNED INDEFINITELY [10.20 AM]