PN1

JUSTICE ROSS: Can I have the appearances please.

PN2

MR N FRIEND: If it please, I seek permission to appear on behalf of the SDA in relation to both applications.

PN3

JUSTICE ROSS: Thanks, Mr Friend. It might be easiest if you each keep your seat. I just have trouble picking you up on the microphone, that's all.

PN4

MR FRIEND: Is that better, your Honour?

PN5

JUSTICE ROSS: Yes, it is, thank you.

PN6

MR N TINDLEY: Morning, your Honour. Tindley, initial N, appearing on behalf of the Australian Retailers Association and Master Grocers Australia.

PN7

JUSTICE ROSS: Thank you. I won't deal with the issue of permission, it's only a mention for programming and it's a matter that can be put before the Full Bench. Can I go over the material that I've got, just to make sure that I have everything that you've filed. For the SDA, Mr Friend, I have an outline of submissions dated 21 May. I have an expert report from Professor Geoff Borland dated 1 June, including a copy of Professor Borland's CV and the engagement letter. I have an outline of submissions in reply dated 23 July 2018. Is that it from you?

PN8

MR FRIEND: I think the outline of submissions - - -

PN9

JUSTICE ROSS: I can't hear you if you stand up, so sit down.

PN10

MR FRIEND: Happy to, your Honour. The 23 July submissions are submissions in relation to the shift work application, not a reply.

PN11

JUSTICE ROSS: Right.

PN12

MR FRIEND: application in relation to penalty rates for casuals and there's the employer's application in relation to penalty rates for shift workers.

PN13

JUSTICE ROSS: Yes.

PN14

MR FRIEND: The submissions on 23 July are responsive, but to the shift work.

PN15

JUSTICE ROSS: Yes, I follow. Thank you. Mr Tindley, for you I have an outline of submissions dated 21 May. An outline of submissions in reply dated 23 July. A research report by Dr Sean Sands, an Associate Professor at Swinburne with a copy of his CV and the letter of engagement. I have some six witness statements where I think redacted copies have been published to the website. Is that right?

PN16

MR TINDLEY: That's correct, your Honour.

PN17

JUSTICE ROSS: Now, Mr Tindley, it's probably easiest to start with you. Do you wish to cross-examine Professor Borland?

PN18

MR TINDLEY: Yes, your Honour.

PN19

JUSTICE ROSS: How long will you be with that, do you think?

PN20

MR TINDLEY: We've had some discussions with the SDA. We expect to be somewhere in the vicinity of an hour to an hour and a half.

PN21

JUSTICE ROSS: Can I go to you, Mr Friend. What's your estimate in relation to the ARA's witnesses?

PN22

MR FRIEND: Yes, your Honour, with the expert, Associate Professor Sands, probably an hour, hour and a half. The four employer witnesses, perhaps 45 minutes each and the two employees, 15 to 20 minutes each. That's about five hours all up, I think.

PN23

JUSTICE ROSS: I'm sorry, what did you say about the four employer witnesses?

PN24

MR FRIEND: About 45 minutes each, but it may less. I often over estimate these things, your Honour.

PN25

JUSTICE ROSS: No, that's fine. Is it convenient to hear the evidence in Melbourne?

PN26

MR FRIEND: It is for us, your Honour.

PN27

MR TINDLEY: It is for us, your Honour.

PN28

JUSTICE ROSS: All right. Just bear with me for a moment.

PN29

MR TINDLEY: Your Honour, just in terms of the evidence, we would - I think in terms of the bulk of the evidence being heard in Melbourne, but we may require some video links to other locations. We have witnesses based in Brisbane and South Australia as well.

PN30

JUSTICE ROSS: No, that's fine, we can organise that. Given the evidence will be dealt with in a day, we would list the evidence for Tuesday 14th starting at 9.30. Can I leave it each of you to organise the order?

PN31

MR FRIEND: Yes, we can do that.

PN32

JUSTICE ROSS: Thank you. Can I raise an issue about the redactions? I don't really understand what that's about Mr Tindley and I don't know whether there's any - whether we're going to be given the information about who they are? Perhaps, more importantly, Mr Friend is going to be given the information.

PN33

MR TINDLEY: No, Mr Friend has the information, your Honour. We'll provide unredacted copies to the members of the Tribunal, so if your Honour was able to notify us of where to direct those, we can ensure they're provided to each of the members of the Tribunal.

PN34

JUSTICE ROSS: No problem, I'll have my associate contact you. If you want the names suppressed, you'll have to make an application during the hearing and provide reasons.

PN35

MR TINDLEY: Yes.

PN36

JUSTICE ROSS: Also, the question of under which section.

PN37

MR TINDLEY: Understood, your Honour.

PN38

JUSTICE ROSS: If you want to shoot a short outline of your submission in that regard, prior to the hearing on the 14th then that would be helpful.

PN39

MR TINDLEY: Yes.

PN40

JUSTICE ROSS: If you can also contact my associate about - well, she'll be in touch with you to provide you with the email address for the statements, but if you can also advise her about the video link she'll require and we can sort them out.

PN41

MR TINDLEY: Thank you.

PN42

JUSTICE ROSS: Can I raise one more matter. You may have at least canvassed this in your written submissions, but what I would seek from each of you by 4pm on Wednesday 8 August, is simply the list of findings that each of you seek the Commission to make, based on the evidence. If you could identify which parts of the evidence you're relying on in respect of each finding, that would be helpful.

PN43

Have you had a discussion about what happens after the 14th? Do you want - look, the option - let me put the smorgasbord in front of you. The options are you can simply deal with it by oral submissions and then it's a question of when we have those. Whether you want to - we'll expedite the transcript. We would provide you then with the 15 August for the purposes of preparing your oral closing submissions and then we could hear those on 16th. The other alternative is some sort of written submission process.

PN44

What's your preference, Mr Friend?

PN45

MR FRIEND: Your Honour, there are reasonably extensive written submissions already. We would - it might be useful to have the 15th with the transcript. I'm not sure how important the facts are going to be and then short oral submissions on the 16th. I don't anticipate they'll take very long, at least from our end.

PN46

JUSTICE ROSS: All right. Mr Tindley, would you be content with that?

PN47

MR TINDLEY: Yes, we'll be content with that, your Honour.

PN48

JUSTICE ROSS: All right, then that's the course we'll adopt. We'll set it down for 10am on the Thursday for oral submissions. Can I ask - perhaps if you can ask your instructors to provide copies of all the documents and the submissions you've already filed in word format.

PN49

Can I also indicate two other things to you? The first is that we will publish to the website and provide a copy to you of a general retail industry profile document that has been prepared by the Commission's staff which updates the information that was published in the penalty rates decision. It's updated it for the results of the 2016 census. You can make of that what you will and you can comment on it in your oral argument.

PN50

The second matter is, there are a number of other substantive claims in general retail. The course I would propose to adopt is to once we've finalised this matter and the plain language redrafting of retail, the retail award, I will call those substantive claims back on and seek confirmation about which ones the parties wish to pursue and an indication of the nature of the case they propose running, that is, witness evidence, how long they think it will take et cetera.

PN51

So, if you could just have your instructors let your clients know that's the course that will be adopted with those, just so they don't think that we've forgotten about them. It's just trying to sequence it so that you don't end up having too much on at the one time, really.

PN52

All right, was there anything else?

PN53

MR FRIEND: Yes, your Honour, I ask two questions, if I may.

PN54

JUSTICE ROSS: Sure.

PN55

MR FRIEND: Firstly, the work documents, should be forward those by email to your Honour's associate?

PN56

JUSTICE ROSS: Yes, thank you.

PN57

MR FRIEND: The updated general retail industry profile, when is it proposed that that's - or when is that likely to be available?

PN58

JUSTICE ROSS: Immediately after the mention.

PN59

MR FRIEND: Excellent.

PN60

JUSTICE ROSS: I'll email it through to each of you. I'll have my associate do that, and then it will be published to the website.

PN61

MR FRIEND: Thank you, your Honour.

PN62

JUSTICE ROSS: Anything from you, Mr Tindley?

PN63

MR TINDLEY: No, your Honour.

PN64

JUSTICE ROSS: No? Well, thank you both and I'll see you at 9.30 on Tuesday 14 August in Sydney. I'll now adjourn.

PN65

MR FRIEND: It's Sydney, your Honour?

PN66

JUSTICE ROSS: Sorry, in Melbourne. Sorry, Mr Friend. It's only the start of the week, but it seems like it's the end. I'll see you in Melbourne.

PN67

MR FRIEND: Thank you.

ADJOURNED INDEFINITELY [9.20 AM]