PN1

VICE PRESIDENT HATCHER: I will take the appearances. Mr Izzo, you appear for ABI and other associated entities?

PN2

MR L IZZO: Yes, and the AHA, as well, now.

PN3

VICE PRESIDENT HATCHER: All right. Mr Bruno, you appear for the SDA?

PN4

MR D BRUNO: That's correct.

PN5

VICE PRESIDENT HATCHER: Mr Harmer, you appear for the ASAA?

PN6

MR M HARMER: That's correct, yes.

PN7

VICE PRESIDENT HATCHER: In Sydney, Mr Crabb, you appear for the Australian Workers Union?

PN8

MR A CRABB: That's correct, your Honour.

PN9

VICE PRESIDENT HATCHER: All right. We will grant the parties permission to be represented by lawyers. The agreed program has some short opening submissions. Is that right?

PN10

MR IZZO: Yes, your Honour.

PN11

VICE PRESIDENT HATCHER: So you're first, Mr Izzo.

PN12

MR IZZO: I am.

PN13

VICE PRESIDENT HATCHER: Go ahead.

PN14

MR IZZO: Your Honours, we filed with the Commission an amended draft determination in August 2017. I take it the Commission has a copy of that determination. If not, I have copies handy.

PN15

VICE PRESIDENT HATCHER: Perhaps you might just hand it up. I'm sure it's in the folder somewhere.

PN16

MR IZZO: Yes. There are three copies. The current Coverage clause of the Alpine Resorts Award, generally speaking, covers businesses engaged in what the award calls "alpine lifting". Sorry, I should rephrase that. It says businesses whose operations include alpine lifting. Alpine lifting effectively refers to lifting skiers or snow sports enthusiasts - boarders, tobogganists, et cetera - up a mountain by some kind of mechanical means. That is the current coverage of the Alpine Resorts Award.

PN17

We have sought to vary the coverage of the Alpine Resorts Award by extending the coverage to those businesses who engage in alpine lifting as well as those establishments who are engaged wholly or principally in the provision of accommodation services, food and beverages services, food retailing and retail sale or general retail industry. Those businesses engaged in those services and who are located within a very specific geographic location, being in the immediate vicinity of the relevant ski resorts.

PN18

Now, the rationale. You will see that the actual radius we have chosen - it's on the second page of the determination - it's broken into two parts. You'll see firstly there are the types of businesses covered in (i) on the second page. That's the accommodation, functions/conferences, restaurant/food and beverage, et cetera, but they also must be located either within a two‑kilometre radius of those centres specified - and you will see we have generally identified local post offices.

PN19

For Charlotte Pass and Mount Hotham, we have just identified the resort itself. Then for the smaller areas we have just said located at that particular area - so Blue Cow, Smiggins, Guthega - because those areas are very self‑evidently able to be identified and so that's why we've set that specific location for the smaller ones just as the location.

PN20

The result of the draft determination is this: we are seeking to have the award cover a very small cluster of businesses that are in the immediate vicinity either inside of or immediately adjacent to each ski resort in Australia, effectively. Once you move outside of this immediate vicinity, the awards coverage ceases. Now, the reason we have chosen this geographic radius and the reason we're able to do it quite easily is because the way in which the ski resorts are set up is such that there is a natural distinction between businesses on mountain or in the alpine area and those located elsewhere.

PN21

Primarily that's because these ski resorts are all located in national parks. They're in national parks to begin with, which means you don't just have businesses randomly scattered throughout the national park. You need leases and permits to operate there. What that means is that we get the ski resort and an immediate cluster of businesses, and then not much else for quite some distance.

PN22

If I can take your Honours back to the inspection that we conducted, you will recall that when we caught the bus up to Smiggins, the bus initially stopped at a gate which would have been the entry to the national park. We kept driving up, but before we got to the gate you would have noticed Jindabyne, the town that we went through - so we started at Cooma, went to Jindabyne. Jindabyne is the last real town. There are some more businesses and accommodation scattered on the lake, but then we got to the national park entry. We entered the national park. From there, there was practically nothing until we hit Smiggins and - - -

PN23

VICE PRESIDENT HATCHER: What is the significance of that in terms of setting a fair and relevant safety net?

PN24

MR IZZO: The significance, your Honour, is that we wish to make it clear to the Commission that the coverage that we have identified is quite easily ascertainable and quite easily distinguishable. The reason that's important, lest it be put against us that the term that we have chosen is not easily capable of application or lest it be said it doesn't provide a stable or easy to understand, simple safety net, we say it does, because it's actually very clear who is in and who is out. That is why we make a point of this, for that reason.

PN25

VICE PRESIDENT HATCHER: What is the difference between a shop or an accommodation establishment in Thredbo village and one say in Jindabyne?

PN26

MR IZZO: The difference between those two, your Honour, if we assume they're selling the same type of things, firstly when you get up to the mountain, the weather conditions vary significantly. When we are on mountain, you have significantly greater chances of inclement weather, which is quite prohibitive; so you're talking about blizzards, you're talking about zero visibility.

PN27

Firstly the weather up the mountain is very different to that of Jindabyne. Jindabyne can be equated to a little bit of a colder version of Canberra, in essence. You get snow occasionally, but we're talking about a consistent snowfall in these high regions and that's a primary distinguishing factor.

PN28

VICE PRESIDENT HATCHER: Why is that a distinguishing factor in terms of employment?

PN29

MR IZZO: Because with the inclement weather then comes significantly different pressures on the business in terms of rostering and fluctuation in revenue trends. For instance, if you have businesses that might not be able to operate due to the inclement nature of the weather at a moment's notice, your ability to consistently roster is much different to that of a business down in Jindabyne. That is a distinguishing feature, one which means that they operate in a much more difficult environment and one which requires swift responses to the weather conditions on a particular day.

PN30

There is also different access. I mean, Jindabyne is a fully functioning town. The ability to access services and things like that of a municipal nature is, no doubt, more constrained the more remote you get, but certainly rostering is a big thing. It's in the ASAA's submissions about why the businesses they represent are unique, but it equally applies to the businesses we're talking about. We'll talk about some of these businesses that are on the actual ski slopes. If the ski slopes aren't operating, if the lift is not moving, there is no business and these businesses are impacted in the very same way that the alpine lifting companies are.

PN31

Your Honour, we say they are easily distinguishable. When the bus got to Smiggins, you will have noted that there was a small cluster of businesses based at Smiggins. Equally, when we went to Perisher, that was the same thing. We then went down the mountain again and we then went up to Thredbo. You will recall we saw the skitube and then there was the national park entry again.

PN32

Again, pretty much no businesses beyond that national park gate until we actually got to Thredbo village and then we saw the businesses again at the very base of the mountain. We say that all of that is to just demonstrate that when we are talking about these businesses, they are small clusters in that immediate vicinity of a ski resort.

PN33

Now, for the purpose of these proceedings, I think it's very important to get three terms clearly understood at the beginning of the proceedings because they will consistently come up during the course of the proceedings. The first is what we refer to as Alpine tourism businesses. The Alpine tourism businesses are effectively the members of our clients that we represent. They are the small private hospitality, retail, restaurant businesses in the immediate vicinity of the ski resort. We call them Alpine tourism businesses.

PN34

We then have Alpine lifting companies and they are effectively the members of Mr Harmer's client; the ASAA. They are the ones providing Alpine lifting services. Then we have the term "ski resort". Now, we say the ski resort is effectively the entire ski area boundary; the skiable area of each resort. That encapsulates a number of things. The ski resort has runs, which is just national park land where skiers go up and down - or primarily down. It has lifts which are operated by the lifting companies.

PN35

Then it has businesses. Some of those businesses will be run by the alpine lifting companies and some will be run by the alpine tourism businesses, but that is the ski resort and there is a combination of businesses within there. They're the three different categories of businesses or operations we will likely talk about throughout the proceedings.

PN36

Before moving on from the determination, if I could just raise one matter. I haven't addressed this with the other parties because it's a development that very much came about very late last week and into the weekend as we further prepared for the proceedings. We have formed the view that Bogong Alpine Village, which is in the draft determination at (ii), does not belong in the draft determination.

PN37

The way the determination came about is that the AHA had a draft determination, as did New South Wales Business Chamber, ABI and Thredbo Chamber of Commerce. They were different. During the course of the proceedings there was a process of compromise whereby we arrived at what we say the correct outcome and the best determination is. That was left on. From subsequent investigations, we don't believe they operated an alpine lifting. We don't believe there is any downhill skiing there. We think it's a business of a very different nature to the others.

PN38

What I would like to do - we will hear from the other parties about this. I realise I have just raised it, but at some - - -

PN39

VICE PRESIDENT HATCHER: Where is that? In Victoria?

PN40

MR IZZO: The second page of the determination - - -

PN41

VICE PRESIDENT HATCHER: No, geographically where is it?

PN42

MR IZZO: It's near Falls Creek, so it's Victoria. I couldn't tell you the exact distance, but the closest resort to it is Falls Creek. It's in the Alpine area, but it doesn't have downhill skiing, it doesn't have lifts, those kind of things.

PN43

VICE PRESIDENT HATCHER: But does it, in effect, service another resort?

PN44

MR IZZO: No. It's quite separate. There is some activity which is cross‑country skiing, which is obviously a recreational pursuit, but there is not the type of downhill skiing that gets the mass type of tourism the others get and there is no alpine lifting, from what we can gather.

PN45

VICE PRESIDENT HATCHER: The four that follow, are they all Victorian?

PN46

MR IZZO: Ben Lomond is Tasmanian.

PN47

VICE PRESIDENT HATCHER: Tasmanian.

PN48

MR IZZO: Dinner Plain Alpine Village is Victorian, Mount Baw Baw is Victoria and Mount Stirling is Victoria, as well. All of those have downhill skiing and alpine lifting. Those are the ones. What we propose in that, we would like to seek leave at some point to file an amended draft determination, but perhaps we can do that once - if anyone has got any objection, we're happy to hear it. Because we're reducing the scope of our application, I had hoped that it wouldn't cause any prejudice, or very limited prejudice, and so that could be dealt with at some point in the proceedings.

PN49

I want to just give you a very brief outline of the arguments that we will present, just so that the Commission has some context when there is the evidence. Just before I do that, there is one other key point about the geographical location of these businesses. Not only are they clustered in the immediate vicinity of the ski resort, but they are clustered at very critical points in the resort. They are effectively at the funnel point - I don't know if "bottleneck" is the right term, but at a funnel or fulcrum point of each ski resort.

PN50

If you think back to when we went to Smiggins, you saw the ski resort there and it was kind of like a large bowl, and everyone was skiing down and it's effectively funnelled into the area where the businesses are. Equally the same at Perisher, at the base of Front Valley where we saw the Perisher centre. There are all these runs, but they all kind of funnel down to that point where the large car park is and that's where the majority of the alpine tourism businesses are.

PN51

It's the same at each of the resorts. It's the same type of approach. The resorts need to effectively move people in and out, and park, and those kind of things. The runs all funnel to one or two points. At Thredbo there are two funnel points. The first was Friday Flat, which is where we had lunch on the inspection day; that brief lunch break and where we met the resort manager. It's also where the SDA kindly bought some donuts for those participants there. That was Friday Flat.

PN52

Then you will recall when we caught the chair lift, there was another landing spot which was five minutes down the road and that's the second funnel point. At the bottom of each of those segments of Thredbo there were businesses and they are the only two ways you get down the mountain. You either have to land at Friday Flat or you land at the village, which is where we caught the chair lift, so the businesses are congregated around there.

PN53

The reason that is important is because what it means is that every person who is going onto the resort and skiing that day, you can take it as a given that they are effectively the same people and the same number of people who are the foot traffic and flow through traffic that is in the vicinity of these alpine tourism businesses. So what we're saying is our clientele is the very same people as the clientele of the ski resorts. I mentioned Thredbo and Perisher. It applies for all the others. Generally these funnel points are at the bottom.

PN54

Mount Hotham is an exception. The accommodation and the businesses are at the top of the mountain and the ski runs are generally beneath it, but you still have the funnel effect because everyone catches the lift up and there is a congregation point at the top of the mountain; suffice to say that on each of these ski resorts there will be two or three points which are the key funnel points and that's where these businesses are. When we start talking about, later on, data regarding how many people come onto the mountain, how many people go up the lift, we say that is a satisfactory proxy for estimating, well, what is the foot traffic through these areas that businesses experience.

PN55

The thrust of our case is as follows and there are really two key arguments. They are, firstly, that the alpine tourism businesses, this small cluster of businesses operating within the ski resorts or in the immediate vicinity, are in the same industry as the alpine lifting companies. Now, whether you call that the snow sports industry or the alpine tourism industry, whatever label you want to give it - the only industry of providing goods and services to snow sports enthusiasts in alpine areas. These snow sports enthusiasts are either skiing, boarding, tobogganing, some limited cross‑country skiing, but they are there to ski or board and we're providing a whole range of services to them in the pursuit of that recreational activity. So that's our first argument.

PN56

Our second argument is that the working conditions under which the alpine tourism businesses operate - and when I say working conditions, I mean both for the employers and the employees - is better aligned to the condition of the Alpine Resorts Award than it is to the other industry awards that would otherwise apply to these businesses. They are the two key tenants of our case. To make good those propositions, we're going to be addressing no doubt a vast array of matters over the next few days, but there are seven key matters that I would like to draw the Commission's attention to.

PN57

The first is the Australian Industrial Relations Commission's rationale for creating an Alpine Resorts Award. I won't go into any detail about that now, but that's something we will address in closing; why was the Alpine Resorts Award created with the coverage it has? The second is the fact that all businesses in that ski resort area are highly seasonal. They have a dramatic peak period in July/August which accounts for a substantial portion of their revenue for the year. They also have very high weekend peaks compared to weekday trading.

PN58

The third factor that supports our position is that the employees of all the businesses in the area have a radically different profile to the employees working elsewhere in Australia. The vast majority of the employees in this area are itinerant workers on what we might colloquially refer to as working holidays. Now, that's not to say that there aren't some people who are permanently based in the alpine area. Yes, there are, but they are the minority. Generally the very large workforce - and this comes out of an operator witness statements - are casuals that are brought on board specifically for the season and they form the vast majority.

PN59

Regardless of whether they are there permanently or casual though, there is another connecting feature. That is that all these people are snow sports enthusiasts. For these people, we say that weekends do not hold a special value and this is a key distinguishing feature. A five‑member Full Bench of the Fair Work Commission in February handed down the penalty rates decision with respect to retail, hospitality awards, restaurant and fast food. One of the findings in that penalty rates decision - which we'll take you to in the closing submissions - is that there is still recognised most certainly by the Commission that there is additional disutility for employees working on Saturdays and Sundays.

PN60

The Commission found that that disutility - the other word sometimes used is "social disability" suffered for working on those days - is indeed slightly greater on Sunday than Saturday, but on both days it's markedly different to during the week. That was the evidence that was presented to that Full Bench and they were the findings they made at a broad industry level. That is why they found that penalty rates continue to be relevant and apply to the businesses they were considering or the awards they were considering.

PN61

We say we are in an entirely distinguishable area here because we are in an area where weekends do not hold any special value at all. On the contrary, the evidence will show that employees prefer to work weekends so that they can ski and board during the week. These contentions will be reinforced by the evidence of the individual operators, by photographic evidence that was taken and evidence from the ASAA's own witness, Mr Gavin Girling.

PN62

We say the reason for this is obvious. It all has to do with lift queues and also ease of access of the ski runs. On the weekends there is casts of thousands on the mountain so it's much more difficult to get down the mountain. There are more hurdles, so to speak, for the skier going down, but equally the lift queues are significantly longer. You can be waiting for half an hour, 40 minutes potentially, whereas lift queues are much less during the week.

PN63

In reality, as an extension of that, we say that the most prized day in alpine regions are what are commonly referred to as "powder days". That is days where there has been a big dump of snow either the night before or that morning; because the snow conditions are best, it's fresh, there is powder snow on the ground. That is, if you like, the glorious Sunday to people in this area. That day has no correlation to either a weekend or a weekday. It will fall when it falls.

PN64

Equally, another day that's mentioned in some of the witness evidence is "bluebird days" or basically a day with blue skies, sunny weather, no inclement weather. That is also a prize day because of the clear skies, the great visibility, which makes skiing and boarding more enjoyable. Again, no correlation to any particular day of the week. They are the prize days. If you can't get them, then the employees would prefer to be on the mountain during the week when there are no crowds and the worse time to be on the mountain is on the weekend.

PN65

The fifth argument that we raise is that the alpine tourism businesses have trading patterns that are very wildly and even cease immediately on account of the weather at a pretty regular interval. The ability to roster flexibly accordingly becomes of paramount importance to these businesses and that's something this area does have; very flexible rostering provisions.

PN66

The sixth matter we want to deal with is the actual ASAA argument itself. The ASAA says that there are a number of matters which make its members' businesses unique and which set those businesses apart. We will demonstrate that the clients that we represent, their businesses align exactly with each of the factors that the ASAA says makes it members unique. The only thing that our members don't do that the ASAA members do is engage in the operation of ski lifts. We say that is not a particularly distinguishing factor.

PN67

The ASAA will contend that the lifting is a substantial investment that they make. It's a huge part of their operations. Well, we would like to test whether that is true and we will see that during the evidence, but, in any event, even if we accept that at face value, that does not provide an answer as to why the Alpine Resorts Award is not the appropriate safety net for the alpine tourism businesses we represent and it does not explain why the Alpine Resorts Award has the types of conditions it does. The reason it has got the conditions it does is due to other factors which also affect our businesses.

PN68

There is one final matter which will continually permeate these proceedings and which is of considerable importance. That is that these businesses - that is the ones we represent - and the alpine lifting companies are in competition. They are in fierce competition for the same type of revenue and that is a factor that is impossible to ignore. The ASAA will no doubt go to lengths to say that it has no interest in the types of businesses we represent, it has no interest in any of those operations and that they're all about lifting, but that is simply not the case.

PN69

For the retail businesses we represent, their biggest competitor is the alpine lifting companies. For the accommodation businesses we represent, one of their biggest competitors will be alpine lifting companies. For the food and beverage providers that we represent, their biggest competitor will be the alpine lifting companies. It is not correct to say that they aren't in competition. They are.

PN70

The alpine lifting companies are operating under a very different labour cost structure to that of the businesses we represent. We say that will create and does create an unlevel playing field, and that is something that goes to the heart of the modern awards objective. It goes to the heart of the modern awards objective because it's very relevant to considering the regulatory impact on business of the Commission's award setting function. If there is a differential impact which causes prejudice to an employer or group of employees, that is something the Commission very much should take into account.

PN71

It also goes to the overall fairness of the safety net and ultimately what we're talking about is a fair and relevant safety net for employers and employees, and currently it is unfair.

PN72

VICE PRESIDENT HATCHER: What are the substantial differences in employment conditions that your members want to access? Ultimately that's what this case is about.

PN73

MR IZZO: The rostering, I have already mentioned, so significantly more flexible rostering.

PN74

VICE PRESIDENT HATCHER: What do you mean? In terms of notice required to change rosters?

PN75

MR IZZO: Yes. The notice required - and, forgive me, I think it's something like 24 hours, but if that's not possible, as soon as practicable. It envisages the fact that it might be difficult to give notice at all. There are the different penalty rates. There are no penalty rates in the Alpine Resorts Award which reflects what we say is the unique profile of the employees in this area. There are some time off in lieu provisions which differ to the other awards depending on the specific industry we're looking at.

PN76

There is also a couple of matters - there is a seasonal engagement clause in the Alpine Resorts Award which does work quite well for that business. That is a consideration, but a little bit of a lesser one. There is a very unique provision about annual leave and leave loading which is quite, I think, well aligned to the industry, but I think it remains to be seen. That is a provision itself under contest I think during these proceedings separately.

PN77

VICE PRESIDENT HATCHER: It's not under contest. The parties are going to persuade us to accept an agreed position, as I understand it.

PN78

MR IZZO: Yes. I think I misspoke and I'm not - I think there is a question as to the extent to which it does or doesn't contravene the NES and that's going to need to be looked at. If the provision survives in its current form, then it is certainly a provision which is very much appropriate for the businesses we represent.

PN79

VICE PRESIDENT HATCHER: Well, it won't survive in its current form. There is already a decision to that effect. It's what we do about it that is the - - -

PN80

MR IZZO: I have to confess, Vice President, I'm not hugely across the annual leave loading issue. Part of that is because we're waiting to see what comes of it. To the extent that it reflects the unique conditions of the employees in this industry and the fact that they're only there for a few months, that applies to our clients, as well.

PN81

VICE PRESIDENT HATCHER: What about pay rates?

PN82

MR IZZO: There is a comparison of pay rates that has been conducted by the unions that we were intending on responding to in closing. Broadly speaking, they do differ against some of the awards. We're intending on responding further on in due course about exactly how they line up, but I'm not in a position to address that this morning.

PN83

VICE PRESIDENT HATCHER: Speaking for myself, what we have just touched upon are the critical issues. That is, at the end of the day this is about what are the appropriate employment conditions for people doing this work, not what box you happen to put them through. That is, whatever award covers them is the case of what are the appropriate employment conditions for these workers, so I think we need to analyse that fairly closely.

PN84

MR IZZO: We are intent on doing so, Vice President. They are the primary matters. There is a final provision about flexibility with occupational engagements. That is the ability to move people across a number of different roles. I think that's something that I prefer to comment on during the closing, because I think we need to see how the evidence falls on that; both to the extent to which the ASAA actually relies on that and the extent to which our clients' businesses rely on that.

PN85

I think we will have a much better indication by the end of the evidence the extent to which that is quite relevant for both types of businesses.

PN86

VICE PRESIDENT HATCHER: My recollection of the inspection was that that had been overstated. That is, when we asked people about it, it didn't seem to happen much at all.

PN87

MR IZZO: That's something that we want to explore, but I best not say too much about that because I think that will be something we will look at.

PN88

VICE PRESIDENT HATCHER: All right.

PN89

MR IZZO: That is essentially the case that we want to present to this Commission, unless there are any questions at this stage.

PN90

VICE PRESIDENT HATCHER: All right. Mr Harmer, you're next.

PN91

MR HARMER: Yes. Thank you. I will just make 10 points and then, subject to the Bench, refer to a couple of housekeeping matters. The first point is that there are only three issues before the tribunal in this hearing. The first is the one we're opening on now which is the attempt by ABI and others, AHA, to change coverage. The second is the RMB attempt to change coverage, which is listed for I think Friday of this week.

PN92

The third one relates to three areas of conditions within the award which is listed for tomorrow afternoon, as I understand it. There is no listed challenge to the award itself. There is no attempt to modify it by any of those attempting to access it and that is quite pertinent when we go to the raft of conditions said to apply within it.

PN93

The second point is that in terms of coverage, obviously the issue of coverage under the modern award scheme is based on predominantly industry of employer. That was pursuant to the ministerial directive during the course of the award modernisation process. Of course the industry of employer is determined by the substantive character of the work involved and the industry of the employer here is clear from a number of sources.

PN94

First of all, on the face of the award itself which regulates a unique set of classifications, a number of which are not covered by any other award in the country. I refer in that regard to ski lift operators, snow makers, snow groomers. They represent the vast bulk of the employees involved in the industry. Secondly is the unique history of the award which goes back some 30 years and throughout those 30 years it has involved only the ski lift operators, so there is a history of prior awards in Victoria and New South Wales. That was analysed by the Full Bench.

PN95

Finally, there is the decision underpinning the making of the award for 2010, but, with respect, the decisions are very thin - as was the case with the number of awards being addressed - and one has to look at the context of what the Full Bench was addressing. That context was specific to the ski lift operators, their history, their predominant workforce. The primary purpose, if you like, is to address the industry of ski lifts operators who have the vast bulk of their employees - for some resorts around 70 per cent of their workforce - on the mountain in unique classifications dealing with ski lifting, ski lift operation, snow making, et cetera.

PN96

The fact is that in adverse weather - not just on a seasonal basis which is critical, but on a daily basis - the massive investment in ski lift operations in snow making in high winds can be rendered nought. If that happens, everyone who has come to the alpine region will be down in restaurants, in cafes, in shops, so the entity that has invested millions, indeed tens of millions, in snow making, in ski lift operations, is shut down from its major source of revenue. Some resorts, again, 70, 80, 90 per cent of revenue.

PN97

Their workforce, which is a massive portion of their costs - some resorts in excess of 70 per cent - can no longer be utilised. Meanwhile, the small businesses that are trying to access this award and who feed off the industry are going gangbusters. Now, that's a fairly major distinction. There are other distinctions, but what was predominantly - - -

PN98

VICE PRESIDENT HATCHER: Is that right? I mean, if the chairlifts aren't operating, people won't be going up to the snowfields at all. I mean, if you park down in Jindabyne and you know the chairlifts aren't operating, you won't be driving up to Kosciuszko to have a beer.

PN99

MR HARMER: Your Honour, as you recall from the inspections - if I take just Thredbo as an example - there is accommodation for 4000 people. Just take that. If there are 4000 people there and they can't access the snow, what are they going to do? Now, the reality is that après-ski - the fact the resorts are a good place to go is a big part of the industry, but when the lifts are not operating, that captured clientele, if you like, are utilising other services and the ski lift operator that has invested literally tens of millions of dollars in ski lifting, in snow making, has its revenue slashed. Others prosper.

PN100

That's a significant distinction, but the main distinction is that if one goes to the substantial character of the business - and this was addressed way back in 1989 when the first award was made in New South Wales - the substantial character of ski lift operation as an industry is totally different obviously to that of retail or restaurants or accommodation.

PN101

The third point I make is that in that context there is a unique history of coverage here. When the New South Wales award was first made, there were a large number of unions and a large number of awards that were subject to exemption as part of a major process of rationalisation. All of that hinged on a very narrow scope of coverage, so entities such as the Retail Traders Association which was involved in the case and the SDA, which is involved here today, they were ruled out in terms of their award, their coverage, on the basis of a very narrow scope ski lift operation.

PN102

There were a large number of unions - I think some 11 - appearing. There were a large number of awards. I think some 14 exemptions, and we'll come to the detail of that later. That entire range of arrangements between the AWU which services this industry, ski lift operation, and a raft of other unions and awards that were applicable in New South Wales, hinged on the narrow nexus of ski lift operation. Nothing else.

PN103

The exact same issues that have been canvassed here; Watson J saying, well, what about shops that operate - and you'll see a quote from Mr McArdle that they're in the industry of retail, RTA, SDA present; different industry to that of ski lift operation. Different substantive character, as I'll come to.

PN104

VICE PRESIDENT HATCHER: Mr Harmer, whether or not the ABI's case has merit, what is the interest of your clients to oppose the application? What does it matter to your members whether the ABI members - I'll call them ABI broadly - are in or out?

PN105

MR HARMER: Yes, your Honour. I would first go to exactly the issue I was just addressing. We acknowledge we have unique conditions and we need them desperately.

PN106

VICE PRESIDENT HATCHER: No‑one is proposing to take them away from you.

PN107

MR HARMER: Well, that's the issue, with respect, your Honour. As I say, we have got a delicate balance here hinged on the fact that in Victoria and New South Wales throughout the history of this industry, coverage has only been for ski lift operators. That's what it hinges on. That's what all those unions and other employer groups and the applicable awards hinged on; an exemption to create us an island. It's a very narrow island.

PN108

VICE PRESIDENT HATCHER: Yes.

PN109

MR HARMER: Now, what happens if that starts to get spread? We've got a perfect example already; United Voice in their drive‑by shooting submission, right? "Abolish the award or insert penalty rates and, by the way, we're not even coming to the hearing." Indicative of what will happen as this award spreads through retail, through accommodation, through other areas of coverage for unions, for employer groups and other awards.

PN110

The anticipation is that there will understandably be flow‑on issues. There will be other employers who will say, "I'm only a hundred metres down the road from the two kilometres," or, "I'm also from a feeder town." You have already included feeder towns in coverage if you grant this application. There is going to be a lot of potential flow.

PN111

More importantly, there are going to be unions - and we would say quite rightly if you look at that history - who are going to say, "Hold on. When we agreed with the AWU to exempt ourselves from this industry, when we got exempted back in 1989/1990, it was only on this narrow base. Now you're cutting right into our core. You're covering hotels, shops, food and beverage." Won't they, as has United Voice already, say, "Well, if that's the case, if it's going to spread, get rid of the award or insert penalty rates. Do something to bring it back to the field."

PN112

Now, that's the danger. If you want to upset the apple cart, fine, but we have got businesses that hinge totally - and in a totally different way - to those who are feeding off the industry, the applicants, and that's the core issue. We acknowledge we have something unique, but it's narrowly based and it's historically based over some 30 years now.

PN113

VICE PRESIDENT HATCHER: Let me just paraphrase that. That is simply an apprehension of some future application to alter the conditions if coverage is widened. Is that what that is?

PN114

MR HARMER: That is it in part, your Honour. As I say, there is already one submission in writing to this tribunal - - -

PN115

VICE PRESIDENT HATCHER: In part. What is the other part? Let's be frank here. Are we talking about competitive advantage or not?

PN116

MR HARMER: Definitely not, your Honour. If you want to know who our competitors are - Australian skiing is seen as garbage compared to international. New Zealand, overseas, there is competition. People who can take people up to the Sunshine Coast, that's our major competition. We have got 70,80, 90 per cent of our business hinging on ski lift operation and we have small bits of ancillary business that coincide with these players.

PN117

VICE PRESIDENT HATCHER: All right.

PN118

MR HARMER: We are talking about the age old problem of core substantial character of our business versus purely ancillary business to low percentages, so the competition for us is not a question. We compete with others and indeed we want these other businesses to thrive, and they do. That's why they set up, because we invest millions to attract people to the area and they, eyes open, come and set up. We want them to thrive, but they don't need all the terms and conditions.

PN119

Just beyond what was said about penalty rates, a Full Bench of this Commission also just considered four‑hour minimum start. You talked about this issue of what is your apprehension. We got exemption from that arrangement through the ACTU at the behest of the AWU, who has been in arrangements with this industry for over 50 years. Recognising the nuanced aspect of this industry, we were by agreement of the ACTU and the AWU taken out, submissions made to the Bench and we would acknowledge it was ultimately the Bench's discretion, but the ACTU agree, on the basis of the arrangement of the unique nature of the industry.

PN120

Now, the ACTU wasn't briefed, "Well, what if it spreads to retail, accommodation and all the rest of it?" I wouldn't be surprised. Again you can say it's an apprehension, but I think it's a reasonable one based on history of industrial relations in this country that the further this unique arrangement spreads, the further we spill the 30 year history of exemptions and tie off of awards and unions, the more one would expect, as United Voice has already done in writing, there will a tax on this award that we depend on vitally for our survival.

PN121

It's not going to get any easier. You can see in the evidence climate change predictions. The last three seasons in a row we have been totally dependent on snow making in the first two months of the season. It used to fall out of the sky for free. Now we have to spend tens of millions of dollars to make it. The projection is our industry - season time is going to contract by weeks and weeks over the coming decades.

PN122

We have had two of our worst seasons in the last 12 years in history - in recorded history. If you say this is a mere apprehension, you're damn right, but it's a very serious one and United Voice has already in writing, ACTU not even aware - if this award spreads, I think it's a realistic apprehension and there is a lot of history to point in that direction. We can go through that history. Look, it's very serious. As I say, the extent of the terms and conditions that are different have not been exhausted by what has been covered so far.

PN123

In terms of the statutory requirements and this issue of flow‑on, the requirement under section 134(1)(g) is establishment of a stable and fair safety net. Part of your evaluative judgment is having regard to the 134(1) factors and under factors under the Act under section 578 and otherwise, but you have got to evaluate and set a stable platform.

PN124

Now, we're concerned about three errors that flow. First of all is this arbitrary two kilometres rule. We will point to a set up shop 130 meters outside the two kilometres, totally dependent on the resort, totally reasonable. It has got all the things that these other customers have that are making this application. Why is it out? There is a feeder town included in this application. What is a feeder town? It is a place where people come to stay and then travel up to the resorts. That's what Dinner Plains is.

PN125

Now, Jindabyne is a feeder town. Indeed, if you want to trace back through this supposed snow sports tourism industry, you will find not only Jindabyne but Berridale, Cooma, all the way to Canberra and even some parts of Sydney have businesses totally dependent upon the ski season. Where do you draw the line? Two kilometres? Someone is going to say, "Well, I'm 130 metres." Dinner Plains is 11 kilometres. Mount Bogong, we have got an application to take it out - is 17 kilometres.

PN126

When we were going up to Perisher, you saw Sponars' resort. That's seven kilometres out. It only opens for the snow. What is the difference? Where do you draw the line? AHA said 10 kilometres. Just outside the 10 kilometres is the Ski Rider Hotel. We passed that on the way up to Perisher. It only opens for the season; totally dependent. The criteria that we're talking about. Where do you draw the line? So many businesses all the way back down to Jindabyne and every one of these resorts have towns on the way that depend on the season. So that's the first thing, the arbitrary nature of the field in geographic terms.

PN127

The second area is the arbitrary nature of the field in terms of the type of work covered - the type of industry covered. The Commission will hear that beyond accommodation, food, beverage, et cetera, you will find medical centres in these resorts. You will find child care centres operated by private operators. They will point to all the exact same issues.

PN128

They could say that, look, the resorts also operate child care when they have their snow training or instructing. All these same issues. What is to stop one of them just saying, "Well, hold on. Me, too. I can't distinguish myself from any of those criteria. I'm ancillary. I'm only 1 per cent of what Perisher might do, but I want to get on the bus. Me, too." Meanwhile we've got this massive 70, 80 per cent revenue hinging on this issue.

PN129

The third area of flow‑on is that of concept and the tribunal would well be aware that the major issue of flow‑on in the past has been concept, and it won't be controlled by this Full Bench. If you make a decision that is a precedent, a Full Bench - potentially the Federal Court of the High Court as has happened in coverage in the past - will be asked the question of, "Why is there this inconsistency? Why not me, too?"

PN130

The notion, for example, that - and I think the AWU and SDA both point to these sorts of examples - there are other awards around the country that have alleviation of penalty rates because of their nature, in travelling shows, in amusement parks and otherwise - if the notion is that if you want to set up eyes open and feed off the custom that comes seasonally to that particular entity, that you somehow become the industry of that entity, that's a concept. What we would say it that concept is as old as the flood in industrial relations in this country and the High Court has dealt with it on a number of occasions. We will go in closing to those cases.

PN131

What is the substantial character of the employer? Is it so unusual that, for example, a mining town where shops will set up in a mining town because they feed off the workforce of the mine, et cetera, will be found not to be of the mining sector even if it has been just contracted out? It will be found to a have different substantial character and even if it's side by side with a mining operation that operates the exact same business, that is part of the history of industrial relations in this country because industry of employer is determined by the major and substantial test; that is the substantial character of the employer.

PN132

VICE PRESIDENT HATCHER: Only again speaking for myself, I'm not that interested in what boxes people want to put themselves in. It's a question of what are the appropriate terms and conditions of employment for the people doing the work. Whether that's under one award or another award doesn't really matter. It's what the terms and conditions are.

PN133

MR HARMER: It is, your Honour, but the terms and conditions - - -

PN134

VICE PRESIDENT HATCHER: You're talking about age‑old demarcation cases based on union rules.

PN135

MR HARMER: Well, we could be if you make this change, with respect, your Honour, but what I would say is that coverage cuts two ways. Terms and conditions affect employees and, yes, there will be employees who - as the unions will cover - will have mass losses or reductions if this goes through, but it also impacts the employer. The issue of industry of employer, which is the mandated - as I understood the ministerial direction - basis for carving up awards as part of award modernisation and the reason why a seven‑member Bench came up with this demarcation, takes cogent reasons to get around it and, in our respectful submission, we have got a totally different industry involved here.

PN136

Going to the issue that your Honour properly raises, we would say on the merits no basis at all to compromise the industry of employer nor to compromise the employees in what is really an aim just to make higher profit margins, eyes open, having decided to move to the area and feed off the large industry that we set up. That's what it's basically about and that on the merit just doesn't sit well with obviously the modern award objectives. We would maintain that there is clasping at straws here.

PN137

If you look at the decision really of the Full Bench and what they went through, which is that whole history, there is an attempt to try and fit in with some of the criteria; but the core essence of this award, its primary purpose, is to cover snow lifting operations that have the vast bulk of their workforce and the vast bulk of their revenue tied up with ski lift operation. That's the essence.

PN138

In terms of other issues going to merit - and I appreciate that this is getting to the outer parameters - to the extent that the tribunal thought that on an evaluative base this was a close call, we would say it's not anywhere near a close call and issues of other discretionary factors got into place. We, first of all, say the fact that it is driven by that last issue of competition would not persuade the Bench.

PN139

Secondly, the genesis of this application was noncompliance with the award and the tribunal will hear many employers involved in this application who for some years chose to apply our award, and to reduce all those benefits for people. They got caught out. They brought one application. They were pointed to this venue and here they are trying to, I guess, reverse back into their noncompliance which went on for many years across many employers in this particular category that are before the tribunal as applicants.

PN140

That, in the context where not only did these entities not play any part in the 30‑year history, they didn't turn up at all in 2008 and 2010. They were represented in 1989 by the RTA and others, but haven't been back since. They didn't even turn up at the start of the 2014 process and it was only when the President raised the fact that this application had been made to vary this award in 2014 that we have had it come back to the - and, in our respectful submission, there are mattes of discretion, there are a number of factors pointing against the applicants.

PN141

The final point that I will just make is on timing. To the extent that the tribunal decides the final three conditions that are listed for tomorrow afternoon, the tribunal will see that in the evidence of Mr Girling, the resorts do most of their recruitment for the next season in October, November, December and then leading up, but the vast bulk of returning employees are dealt with in these months.

PN142

If the award in its current coverage was to be put in place, that would give some certainty even if the Bench had to reserve on this issue of coverage. We're not suggesting that it needs to, but certainly there is some keenness to have the award settled sooner rather than later if that's possible; but we say that respectfully and we're totally in the hands of the Commission in that regard.

PN143

The final thing on housekeeping, I'll just note that Mr Girling is a witness but he is also our sole instructor from the industry. With the consent of the parties, he is present in the tribunal and will be throughout. Secondly, there were some confidential exhibits going to information about the resorts that were the subject of a confidentiality order. If the tribunal pleases, if cross or other material goes into that area, we just want to flag that we will be attempting to extend that order by way of ease, if you like.

PN144

Finally, by way of housekeeping, I note that in Mr Girling's evidence he refers to a lot of material that is attached to some of our historical submissions. By agreement with the parties, we're going to take you to certain of that material if we seek to rely on it. Not so much documentation, but some things that are asserted in submission we will be retracting and putting back through Mr Girling. I think that's all I had to add unless there are any more questions, if the tribunal pleases.

PN145

VICE PRESIDENT HATCHER: Thank you. Mr Bruno?

PN146

MR BRUNO: May it please the Commission, in terms of the SDA's position in relation to this four yearly review, it's probably apparent from the submissions which have been filed that the SDA does oppose the application to extend coverage. The SDA doesn't make submissions in relation to the other issues which are being considered by the Bench tomorrow afternoon.

PN147

In terms of flagging the SDA's position at the outset, what the Commission has already heard is that this particular modern award has fairly confined coverage at the moment. What the application to extend coverage does is it seeks to extend coverage to a number of other businesses, based on what those businesses do, provided they meet this locational requirement which my friend for the applicants has taken your Honours to. In my review of the modern awards that exist, I haven't found any mirrored approach to that where coverage is based on the geographical locations of particular businesses. What I would say about that is simply that it's quite a novel approach which is being pursued in relation to coverage.

PN148

The history of this particular award is particularly important and I would seek to, in this review proceeding, impress upon the Commission the particular history. My friend for ASAA has already referred the Commission to some of that history going back to 1989 where the first state award in New South Wales was created. All of those state awards which underpin this award were so confined to the lifting entities, if I can put it that way.

PN149

That also, when we come modernisation and the hearings before the Australian Industrial Relations Commission in 2009, was on the basis of those particular awards which were so confined, so that was before the Australian Industrial Relations Commission. This award is quite unique. It's curious in the way that its coverage currently operates, but has operated going back to 1989 if we take into account the state awards.

PN150

What the applicants seek to do now is quite obviously to broaden the coverage clause; to bring into the pool of people and businesses captured by this particular award employers and employees who, for the interests of the SDA, are covered by some of the general awards which apply. In terms of the SDA's perspective - and this is in the written submissions - the interest is in relation to the General Retail Industry Award, the Hair and Beauty Industry Award and the Fast Food Industry Award.

PN151

Just addressing the heart of the issue from the SDA's perspective, what I have endeavoured to do is to provide or create a table for the assistance of the SDA. I haven't provided this to my friends. It's not evidence. It's simply an aid to assist the Commission and my friends understand the SDA's position. I might hand that up now if that's convenient.

PN152

What this particular document does is - on the left‑hand column there is reference to the Alpine Award, then we have got Retail, Fast Food, Hair and Beauty. What the table does, it points to the major differences between the general awards and the Alpine Resorts Award in terms of penalty rates, in terms of overtime provisions and in terms of allowances.

PN153

What my friend for the coverage applicants has already informed the Commission is that the Alpine Resorts Award is devoid of penalty rates save for public holidays. It does contain public holiday penalty rates, but what you can see there if you look at the table is that there is no Saturday penalty rate, no Sunday penalty rate. There is no evening work penalty rate. There is no morning penalty rate. If we look over now at the table, I'm not suggesting that each of those other awards has both evening and early time penalty rates.

PN154

If we turn over the page, we have got what the awards all provide in terms of public holiday loading, then we have got allowances. In terms of overtime payment, one thing that I should just address briefly now in the part or the section which deals with the Alpine Award, that overtime payment currently relates to permanent staff only. I just wanted to make that point clear, because there is a slight inaccuracy there. Perhaps if we all wrote that onto the document to clarify that.

PN155

Then we have got the overtime provisions in respect of time off in lieu, which are a bit different. Under the Alpine Resorts Award we have got overtime hours worked as being the time off in lieu, whereas under each of the other three awards the time off in lieu is calculated based on the overtime rate rather than the actual hours of overtime worked.

PN156

VICE PRESIDENT HATCHER: Just in terms of the overtime payment for the Alpine Award, that is not applicable to seasonal workers or it is?

PN157

MR BRUNO: I should check that. I would have to go and review the seasonal component.

PN158

VICE PRESIDENT HATCHER: All right.

PN159

MR BRUNO: But it's not applicable to, at the moment, casuals and snow instructors.

PN160

VICE PRESIDENT HATCHER: They just get time off in lieu.

PN161

MR BRUNO: Yes, but I understand that the issue of casuals - it forms part of tomorrow's application or proceedings before the Commission, but not snow sports, I'm told. I have provided that to the Commission. In a nutshell, what the SDA will be saying in this particular proceeding is that to bring into this particular Alpine Resorts Award the pool of employees and employers that are currently captured by the other general industry awards, will result in unfairness within the meaning of section 134 of the Fair Work Act. That's obviously the modern awards objective from the perspective of employees.

PN162

What it would result in is a wholesale reduction in take‑home pay for particular workers. I will make good that submission further in closing. It's probably appropriate that I do that at that stage.

PN163

VICE PRESIDENT HATCHER: In the inspections at Thredbo Village, we saw retail and fast food outlets operated by the resort.

PN164

MR BRUNO: Yes.

PN165

VICE PRESIDENT HATCHER: Which are under the Alpine Awards. You could walk 10 metres and there will be a fast food or retail outlet operated by an independent operator.

PN166

MR BRUNO: Yes.

PN167

VICE PRESIDENT HATCHER: They will be under their relevant awards.

PN168

MR BRUNO: Yes.

PN169

VICE PRESIDENT HATCHER: Now, irrespective of what are the right conditions for those alternatives, what is the rationale for one being different to another in terms of the operating conditions, the work and the local factors?

PN170

MR BRUNO: Yes. Your Honour, that's a difficult question for me to answer. If I was to take the Commission back to the modernisation proceeding before the Commission, as it then was, the SDA ultimately opposed differentiation on the basis of whether one entity had a ski lift or not. In broad terms, the SDA's submission back then was this is inequitable. It's unfair to have different employees treated in different ways because of the status or the operations of a ski lift, if I can put it that way.

PN171

My response to the submission directly is, though, it's a very curious award. It's very confined in that nature and it has historically been that particular way. What the Full Bench has previously said in the preliminary jurisdiction issues is that there can be differences between awards based on the contextual differences in relation to the employers and the employees. You can have a situation where there are differences.

PN172

I do understand that when conducting this review proceeding, it might sit quite uncomfortably with the Commission the fact that different employers apply different rates of pay. I accept that that's a fact. It's unavoidable. This is what the situation is, but when the Commission comes to perform the evaluative task required of the modern awards objective, this case just isn't about employers and the pay that various employers on the mountains are required under the various awards to pay their particular employees.

PN173

It's certainly a factor and issues of competition are certainly a factor, but what we're looking at here is quite a significant change for employees who have since day dot been paid according to the general industry awards. It's a significant change for them. I hope that has addressed your Honour's question in particular.

PN174

VICE PRESIDENT HATCHER: I glean from that answer that you actually opposed the original Alpine Resorts Award.

PN175

MR BRUNO: We did. Now, in this proceeding the SDA has not made an application in respect of the award. I am here on behalf of the SDA to resist the further expansion of this particular award.

PN176

VICE PRESIDENT HATCHER: So your position, if you summarise it, you don't want to make a bad situation worse.

PN177

MR BRUNO: That's precisely right. In terms of the Commission's jurisdiction in relation to the review, I understand that the Commission has conducted numerous modern award reviews so I won't go into that in detail. I thought it would be useful if I did highlight for the Commission by way of opening what the role in conducting this review is, based on what the Full Court of the Federal Court has recently said in the decision Shop Distributive and Allied Employees Association v Australian Industry Group. It's the penalty rates judicial review, FCAFC 161.

PN178

It's at paragraph 35, where the Full Court of the Federal Court has said that the task for the Commission in conducting a review is to "survey, inspect, re‑examine or look back upon" the award. This is what the Commission is doing today, but in the context of a particular application which has been brought, which is to seek to extend coverage. What the Full Court has done in that particular case is tacitly accepted that the historical context for the award is relevant to what is a fair and minimum relevant safety net of terms and conditions coupled with the National Employment Standards.

PN179

What I would also ask the Commission to do is to still go back to the original preliminary jurisdictional issues decision of the Full Bench - back in 2014 I think it was - where there were some general principles which the Commission will undoubtedly be aware of which guide proceedings like this. I would make the point here that it's for the applicant who is seeking to agitate a change for the award in cases where a significant change is contemplated - and I say change in coverage in this way to bring in different employers and employees. This is significant change.

PN180

They are required to bring some cogent reasons to the Commission, coupled with probative evidence addressing each of the factors in the modern awards objective so that the Commission is able to perform the evaluative task which is required by the modern awards objective. In essence, the ultimate submission will be that there aren't cogent reasons presently and the evidence is not probative. I would be urging ultimately the Commission not to extend coverage.

PN181

In terms of the approach by the SDA in this proceeding, it should be clear that the SDA isn't calling any evidence. I will be cross‑examining some of the witnesses that are being called. The Commission will have seen that there are objections to evidence which we have been able to narrow down with my friends for the applicants which really go to the issue of employee preferences.

PN182

Now, I understand the objections are going to be dealt with in the running, so before each witness is called, so I won't address that now, but unless there is anything further that I can assist the Commission with by way of opening - - -

PN183

VICE PRESIDENT HATCHER: Thank you. Mr Crabb in Sydney, do you want to say anything by way of opening?

PN184

MR CRABB: Thank you, your Honours (indistinct).

PN185

VICE PRESIDENT HATCHER: Mr Crabb, it's important you stay near the microphone for us to hear you properly. If it's easier sitting down to stay close to the microphone, you can do that if you wish.

PN186

MR CRABB: Is that a bit better?

PN187

VICE PRESIDENT HATCHER: That's much better. Stay close to the microphone. If it's easier staying seated, please do so.

PN188

MR CRABB: It might be actually. That's still okay?

PN189

VICE PRESIDENT HATCHER: Yes, that's very good.

PN190

MR CRABB: Given what we have heard from the ASAA and the SDA, I will be very brief with this opening. The AWU's position for applications for the variation should be rejected. We have adopted as support the submissions of the SDA and the ASAA in relation to the reasons why the award shouldn't be expanded.

PN191

In addition, our submission is based on two main points. The first one is to expand the coverage would be against the modern awards objective. The second point is that the businesses are more appropriately covered by other relevant awards. Without going back over the submissions already made by the SDA and ASAA, those are going to be our submissions.

PN192

VICE PRESIDENT HATCHER: All right. Thank you. We will turn to the first witness. That is Stephen Pennington, so let us locate that. What we will do is we will deal with the objections to Mr Pennington's statement and then we will have a morning tea adjournment. We will get Mr Pennington on the phone during the adjournment and deal with him after the adjournment. Is that convenient?

PN193

MR SCOTT: Can I just indicate one thing, Vice President. Mr Pennington was expected to be called at 2 pm. I understand we're calling him via the phone. If it's convenient to the Bench, the parties have had discussions this morning about a slightly revised order for today.

PN194

VICE PRESIDENT HATCHER: All right.

PN195

MR SCOTT: What we were intending to do was to call Mr Izzo first, followed by Ms Connor, who I understand is in the vicinity, then perhaps Ms Slaytor and then Mr Pennington. Depending on how long cross‑examination is, we're likely to be calling him closer to the expected 2 pm.

PN196

VICE PRESIDENT HATCHER: Yes, all right. Are there any objections to Mr Izzo's statement?

PN197

MR HARMER: No, thank you, your Honour.

PN198

MR BRUNO: No, your Honour.

PN199

VICE PRESIDENT HATCHER: All right. Mr Izzo, if you would like to come forward.

PN200

THE ASSOCIATE: Could you please state your full name and address.

PN201

MR IZZO: Luis Anthony Izzo, (address supplied).

<LUIS ANTHONY IZZO, SWORN [11.19 AM]

EXAMINATION-IN-CHIEF BY MR SCOTT [11.19 AM]

PN202

MR SCOTT: Mr Izzo, do you have a copy of your statement in front of you?‑‑‑No, I don't.

PN203

You don't? I'll give you mine, if that's convenient. Mr Izzo, can you state your name and address for the record, please?‑‑‑Luis Anthony Izzo. My work address, as it's on the statement, is 140 Arthur Street, North Sydney.

PN204

You have provided a statement in these proceedings?‑‑‑I have.

PN205

You confirm that that's true and correct to the best of your knowledge and belief?‑‑‑I do.

PN206

I tender that.

*** LUIS ANTHONY IZZO XN MR SCOTT

PN207

VICE PRESIDENT HATCHER: All right. I'll mark the statement of Luis Anthony Izzo, dated 12 September 2017, as exhibit A.

EXHIBIT #A STATEMENT OF LUIS ANTHONY IZZO DATED 12/09/2017

PN208

MR SCOTT: Can I ask your Honours if you have copies of that statement.

PN209

VICE PRESIDENT HATCHER: Yes, we do.

PN210

MR SCOTT: No further questions. Thank you.

CROSS-EXAMINATION BY MR HARMER [11.20 AM]

PN211

MR HARMER: Mr Izzo, you're a director of Australian Business Lawyers?‑‑‑I am.

PN212

It is connected to ABI and the New South Wales Business Chamber?‑‑‑New South Wales Business Chamber is the sole shareholder of Australian Business Lawyers. There isn't really a connection with ABI as such. The majority of the New South Wales Business Chamber's members also happen to be ABI members, but there is no direct connection from an ownership perspective with ABI.

PN213

New South Wales Business Chamber is the old Chamber of Manufacturers in New South Wales?‑‑‑It is.

PN214

Initially in this matter ABI and the New South Wales Business Chamber expressed interest in this award, but at that stage your firm was only representing those two organisations. Correct?‑‑‑That's right. We were representing ABI and the New South Wales Business Chamber, yes.

PN215

You later announced representation for the Thredbo Chamber of Commerce and the Perisher Chamber of Commerce. Correct?‑‑‑I certainly know we announced representation for the Thredbo Chamber of Commerce. I couldn't tell you about the Perisher Chamber of Commerce. I don't have direct knowledge of that.

PN216

VICE PRESIDENT HATCHER: What has this got to do with anything, Mr Harmer?

*** LUIS ANTHONY IZZO XXN MR HARMER

PN217

MR HARMER: I just want to explore which employer businesses are seeking coverage and which are not, your Honour. So the number of employers involved - - -

PN218

VICE PRESIDENT HATCHER: The applicants are clearly known, aren't they?

PN219

MR HARMER: No, they're not, your Honour.

PN220

MR SCOTT: The applicants are known and quite clearly known. I correct that. The amended draft determination sets out the employers who the claim is intended to cover.

PN221

VICE PRESIDENT HATCHER: It's who is asking for it, is the issue.

PN222

MR SCOTT: Well, we represent four clients.

PN223

VICE PRESIDENT HATCHER: Yes.

PN224

MR SCOTT: Four organisations.

PN225

MR HARMER: Mr Izzo, isn't it the case that the Perisher Chamber of Commerce no longer seeks coverage for any businesses in Perisher under this award?‑‑‑I don't know that. I'm not aware of - I haven't had any discussions with the Perisher Chamber of Commerce. Me, personally. I can't speak for others, but I certainly haven't had any with them.

PN226

You're aware there are a large number of businesses located in Perisher?‑‑‑Yes, there are.

PN227

Your application seeks coverage of them?‑‑‑What we call the alpine tourism businesses, yes.

*** LUIS ANTHONY IZZO XXN MR HARMER

PN228

Yet you can't tell the tribunal whether those employers actually want to be subject of this application or not?‑‑‑So from my direct knowledge, I didn't have discussions with the Perisher Chamber of Commerce. I am aware that we tried to get evidence from the operators at Perisher and they said that they were fearful of retribution through the Perisher ski resort which is why they wouldn't give evidence in these proceedings. That's what I heard second-hand from people trying to get evidence from those operators and for that reason, although we made attempts to try and get witnesses from Perisher, we were unsuccessful. That's about the extent of my knowledge of the Perisher businesses' involvement and the Perisher Chamber of Commerce's involvement.

PN229

Does New South Wales Business Chamber have coverage in Victoria?‑‑‑Does it have coverage in Victoria?

PN230

Yes?‑‑‑Does the New South Wales Business Chamber have members that are based in Victoria? It would have some. Its constitution, I think - I haven't look at it for a very long time. I suspect it talks primarily about representing interests of business in New South Wales, but it does have members from - - -

PN231

Well, can I put it to you that your constitution is clearly limited to New South Wales. That would be your understanding, wouldn't it?‑‑‑I wouldn't be surprised if that's the case, but I haven't looked at it in - - -

PN232

So can I ask you, the legal firm that you're a member of, which businesses in Victoria does it represent that are seeking coverage under the application you have lodged before this Commission?‑‑‑We represent the four organisations that we've identified: New South Wales Business Chamber, Australian Hotels Association, Thredbo Chamber of Commerce and ABI. To the extent that they have members - they may well have members. I'm sure the AHA has members across the country. If you're asking do I represent a Victorian business, well, not one solely based out of Victoria, no.

PN233

You have just started acting for the AHA in the last month or so. Correct?‑‑‑Week or so, I think. Week or two.

PN234

Okay. So leave aside the AHA and its interests in the hotel industry. Can you inform the Commission of any employer that you're instructed by in Victoria that is supportive of this application? Any one?‑‑‑As a client, there is no Victorian based business that has engaged us to bring the application, no.

PN235

Your application extends to a large number of Victorian resorts and a large number of businesses, doesn't it?‑‑‑It does.

PN236

It extends to hundreds of businesses in Victoria, doesn't it?‑‑‑It would.

*** LUIS ANTHONY IZZO XXN MR HARMER

PN237

By neither coverage nor representation as a legal firm, you're not speaking in this proceeding on behalf of any of those businesses, are you?‑‑‑I don't my - my law firm represents the four clients that we've named.

PN238

I understand?‑‑‑They have members, some of whom would be based in Victoria.

PN239

Outside of the AHA, which of those members?‑‑‑I couldn't name them.

PN240

The same question; Tasmania. Who do you bring before this tribunal as an employer from Tasmania that is seeking coverage under this application?‑‑‑I can't give you a specific name. The four organisations we're representing are the ones we've named.

PN241

Well, again I put it to you that outside of the AHA, your legal firm represents no employer in Tasmania. Correct?‑‑‑I don't know that, because that relates to the membership base of the New South Wales Business Chamber and I cannot tell you how many members are from outside New South Wales. I do think there are members outside New South Wales. I couldn't tell you how many there are or in which states. The same for ABI.

PN242

Do you reasonably assert to this Commission that there is a strong propensity that you have got a member in the Tasmanian ski fields, New South Wales Business Chamber?‑‑‑I honestly don't know. I mean, what is the probability? I don't know. Most of the New South Wales Business Chamber members would be from New South Wales, you would expect, yes. That's all I could say.

PN243

Well, of the employers in Victoria and Tasmania that are subject to your application outside of the AHA members, which support the extension of the award the subject of this application?‑‑‑Sorry, could you repeat that question?

PN244

Of the employers that are covered by this application in Victoria and Tasmania - - -?‑‑‑Yes.

PN245

- - - are you able to name any employer in either Victoria or Tasmania that actually has instructed you and supports this application?‑‑‑I know all the witnesses that are Victorian and support the application, because they have given evidence.

PN246

Yes?‑‑‑The witnesses are the primary people from those areas that we were spoken to. So in terms of my direct knowledge, it would be mainly limited to the witnesses we have spoken to.

*** LUIS ANTHONY IZZO XXN MR HARMER

PN247

Okay. So we're talking about a handful of employers in Victoria. Correct?‑‑‑That I have direct knowledge of?

PN248

Yes?‑‑‑Having spoken with, yes.

PN249

One of the employers in Victoria you represent is Mr Pennington?‑‑‑Yes - we don't represent him. He is just a witness, but, I mean, he may be a member of one of the organisations that we represent. I don't know the answer to that question.

PN250

Well, you're acting for the Thredbo Chamber of Commerce. Isn't there a Chamber of Commerce in Mount Hotham where Mr Pennington comes from?‑‑‑There could be.

PN251

Isn't there a Chamber of Commerce in Falls Creek?‑‑‑I don't know.

PN252

Have you had any discussions with VECCI about this application at all?‑‑‑I don't think so. Well, I certainly haven't. Has our firm? I don't know.

PN253

Have you had any discussions at all with the Australian Retailers Association?‑‑‑I certainly haven't. I don't think anyone from our firm has.

PN254

If I can just take you to a copy of Mr Girling's statement. I'll just get an extra copy for you.

PN255

VICE PRESIDENT HATCHER: Do we need to look at this in any detail, Mr Harmer, to understand these questions?

PN256

MR HARMER: I would say not, your Honour.

PN257

VICE PRESIDENT HATCHER: All right. Just proceed.

PN258

MR HARMER: If I can just put it this way: if the Bench feels you're being compromised in any way, I'm happy to stop and provide extra copies - - -

PN259

VICE PRESIDENT HATCHER: No. Keep going. We will see where - - -

PN260

MR HARMER: May it please. I apologise for any inconvenience.

*** LUIS ANTHONY IZZO XXN MR HARMER

PN261

Could I just take you, please, to annexure GG in the second volume. You will see there, there is an application made by Dpsi General Pty Ltd and Falls Creek Over Snow Pty Ltd. Do you see that?‑‑‑Yes.

PN262

That was a 2014 application to vary this award to change its coverage. Correct?‑‑‑It appears to be, yes.

PN263

If you go to the affidavits in support of the application, you will see that one has been sworn by Mr Pennington?‑‑‑(No audible reply).

PN264

Perhaps if you go in from the back, there is a series of affidavits and the first one is from Mr Pennington?‑‑‑Yes. I see the Pennington affidavit, yes.

PN265

You will see in the second paragraph he refers to his company which operates a general store at Mount Hotham and some accommodation at Dinner Plains. He says that the entities are members of the Mount Hotham Chamber of Commerce. You see that?‑‑‑Yes.

PN266

Confirm again. You don't purport to represent any members of the Mount Hotham Chamber of Commerce, do you, apart from Dpsi General Pty Ltd?

PN267

VICE PRESIDENT HATCHER: Mr Harmer, the witness has said a number of times that he is here representing four industrial organisations.

PN268

MR HARMER: Thank you. I understand, yes.

PN269

VICE PRESIDENT HATCHER: Bear in mind you're cross‑examining a lawyer. You're not cross‑examining somebody's industrial officer.

PN270

MR HARMER: Thank you.

PN271

VICE PRESIDENT HATCHER: So I'm concerned about the limited utility of this cross‑examination.

PN272

MR HARMER: Yes, your Honour. Thank you. I'll take that on board. Given that, I won't pursue that line of questioning.

*** LUIS ANTHONY IZZO XXN MR HARMER

PN273

Mr Izzo, could I just provide you with an extra copy of the application that you have handed up to the tribunal; the draft determination?‑‑‑You mean the draft determination?

PN274

Together with your covering email, dated 18 August 2017?‑‑‑We have got the draft determinations, but we don't have the one with the covering email.

PN275

I just apologise to the tribunal. We have got a set of copies somewhere. We're just trying to locate them. I apologise to the Bench. While we locate that set of papers, I might move to another - I'm indebted to Mr Scott. I might hand the witness one copy and somewhere we have got a set of that document. We will just locate it. Apologies to the Bench. I'll proceed with some questions around the application. Perhaps if I could also hand Mr Izzo the original ABI application of November 2016 and the original AHA application of November 2016.

PN276

VICE PRESIDENT HATCHER: While you organise that, Mr Harmer, we might take a short morning tea adjournment.

PN277

MR HARMER: I apologise, your Honour.

PN278

VICE PRESIDENT HATCHER: We will come back in about 10 minutes.

PN279

MR HARMER: Thank you. I'm indebted.

<THE WITNESS WITHDREW [11.36 AM]

SHORT ADJOURNMENT [11.36 AM]

RESUMED [11.47 AM]

PN280

VICE PRESIDENT HATCHER: Mr Harmer?

PN281

MR HARMER: Thank you again for that adjournment. I apologise again. I cluttered everyone with too much paper, so it was my fault. We now have three sets of the documents I was going to go to. They are in order; the latest application of the AHA and BSI and SWBC combined. Perhaps I'll hand that up first. Secondly, there is the original AHA and original BCI New South Wales Chamber applications. We just have one for the witness and one for the Bench.

*** LUIS ANTHONY IZZO XXN MR HARMER

PN282

If the tribunal pleases, with the consent of the parties as I understand it, rather than marking that document for identification, could I perhaps seek to tender that now. That's the current application before the tribunal, if that's appropriate, just as a - - -

PN283

VICE PRESIDENT HATCHER: What do we need to mark it for?

PN284

MR HARMER: I'm just going to ask questions around it, your Honour.

PN285

VICE PRESIDENT HATCHER: Let's see what the questions are first.

PN286

MR HARMER: Thank you. Secondly, could I just hand up the original BCI application of 30 November 2016. Finally, could I hand up the original AHA application of 30 November 2016.

<LUIS ANTHONY IZZO, RECALLED [11.50 AM]

CROSS-EXAMINATION BY MR HARMER, CONTINUING [11.50 AM]

PN287

MR HARMER: Mr Izzo, could I just take you to your email of 18 August 2017 and the attached amended draft determination?‑‑‑Yes.

PN288

You have that. That is put forward on behalf of the four entities that you now represent - your firm. Correct?‑‑‑It was, yes.

PN289

In the second paragraph of your covering email of 18 August 2017, you refer to an agreement between the entities to come up with the consolidated joint draft determination. Do you see that?‑‑‑Yes.

PN290

Could I just take you to the terms of the application, if I could. I think earlier you took the Bench to the application and placitum (i) has a number of areas of work or service, starting with accommodation services and proceeding to retail of alpine equipment. Do you see that?‑‑‑Yes.

PN291

Since the original BCI draft determination of November 2016, you have added food retailing. Do you see that?‑‑‑BCI?

PN292

Sorry, since your original application on behalf of BCI and the New South Wales Business Chamber - - -

*** LUIS ANTHONY IZZO XXN MR HARMER

PN293

VICE PRESIDENT HATCHER: BCI is what?

PN294

MR SCOTT: It's ABI.

PN295

MR HARMER: I'm sorry?‑‑‑ABI.

PN296

ABI and the New South Wales Business Chamber - you have added the area of food retailing. Correct?

PN297

VICE PRESIDENT HATCHER: Well, food retailing has been added. Why are you attributing this to Mr Izzo? I can tell you Mr Izzo is here as a solicitor advocate who has taken some photos. I don't know why he is being cross‑examined about these matters.

PN298

MR HARMER: Can I then just try and qualify that.

PN299

Mr Izzo, are you the draftsperson of this joint determination?‑‑‑I couldn't honestly - I'm not sure. I certainly was involved in some of the drafting.

PN300

Were you involved in the discussions with the AHA as to rationalising the joint determination?

PN301

MR SCOTT: Objection. I'm just concerned that we're getting to a point where some of these discussions no doubt will be privileged?‑‑‑That's right.

PN302

Mr Harmer is asking what the discussions were.

PN303

VICE PRESIDENT HATCHER: Mr Harmer, where is this all going? I mean, there is a draft determination that has been handed up. It says what it says. You can make submissions about it. You can call evidence about it, but Mr Izzo is a solicitor advocate who I assume has no personal interest whatsoever in whether this application succeeds or fails. What are you cross‑examining him about?

PN304

MR HARMER: I think technically his firm is a controlled subsidiary of the New South Wales Business Chamber, first of all, but leave that aside, your Honour. I want to understand the rationale behind what is in and what is out, particularly in placitum (ii)(B).

*** LUIS ANTHONY IZZO XXN MR HARMER

PN305

VICE PRESIDENT HATCHER: But Mr Izzo presumably is acting on instructions from the organisations he represents.

PN306

MR HARMER: That doesn't mean he can't inform this tribunal as to what the rationale is for why certain towns are in and certain are out, your Honour.

PN307

VICE PRESIDENT HATCHER: I consider these matters to be ones for submission. I am not particularly interested in what a solicitor acting for one party thinks or does not think about a particular matter. If there is no rationale for it you can say so in submissions, but I, with respect, don't think this is an appropriate use of the Commission's time.

PN308

MR HARMER: If I can just put it this way, your Honour: if there is a rationale for it, the tribunal is not going to know about it unless we ask some questions around it, with respect.

PN309

MR SCOTT: The rationale is going to be dealt with in submissions, your Honour?‑‑‑It's subject to legal professional privilege, anyway.

PN310

VICE PRESIDENT HATCHER: No, we won't allow these questions, Mr Harmer.

PN311

MR HARMER: May it please the tribunal.

PN312

VICE PRESIDENT HATCHER: Do you have any questions about what is in his statement?

PN313

MR HARMER: Not on that point, your Honour, no.

PN314

VICE PRESIDENT HATCHER: Or about any part of his statement.

PN315

MR HARMER: The statement is of no interest to us, your Honour. We are seeking to cross‑examine the entities that are before the tribunal in relation to this joint determination. If the tribunal pleases, given the ruling that is just made, the rest of my questions go to why certain towns are in and out in this particular document. No further questions.

PN316

VICE PRESIDENT HATCHER: All right. Thank you. Does any other person want to cross‑examine this witness?

*** LUIS ANTHONY IZZO XXN MR HARMER

PN317

MR BRUNO: No.

PN318

VICE PRESIDENT HATCHER: Mr Crabb?

PN319

MR CRABB: No, your Honour.

PN320

VICE PRESIDENT HATCHER: All right. Is there any re‑examination?

PN321

MR SCOTT: Just a couple of questions, your Honour.

RE-EXAMINATION BY MR SCOTT [11.55 AM]

PN322

MR SCOTT: Mr Izzo, do you have any financial interest in any of the businesses that would be caught by the amended draft determination?‑‑‑No.

PN323

Other than as a solicitor, do you have any personal interest in this matter?‑‑‑No.

PN324

No further questions.

PN325

VICE PRESIDENT HATCHER: Thank you, Mr Izzo. You're excused.

<THE WITNESS WITHDREW [11.55 AM]

PN326

VICE PRESIDENT HATCHER: Who will be the next witness?

PN327

MR SCOTT: My friend is indicating that Ms Emily Slaytor was due to be called. The ASAA don't have any questions. I might just inquire as to the other parties, because it may be that that statement can be tendered. Perhaps if that inquiry can be made of Mr Crabb.

PN328

VICE PRESIDENT HATCHER: Mr Crabb, did you have any questions of Ms Slaytor?

PN329

MR CRABB: No.

*** LUIS ANTHONY IZZO RXN MR SCOTT

PN330

VICE PRESIDENT HATCHER: All right. Well, let's just locate her statement. Were there any objections to the statement?

PN331

MR BRUNO: We are on to - - -

PN332

MR SCOTT: Slaytor.

PN333

MR BRUNO: Ms Slaytor's, no.

PN334

VICE PRESIDENT HATCHER: All right. The statement of Emily Slaytor, dated 13 April 2017, will be marked exhibit B.

EXHIBIT #B STATEMENT OF EMILY SLAYTOR DATED 13/04/2017

PN335

MR SCOTT: Your Honour, the next witness that we call is Ms Sandra Connor. I understand she is here in person.

PN336

VICE PRESIDENT HATCHER: Just hold on a second. Are there any objections we need to deal with first?

PN337

MR SCOTT: There was an objection which was resolved. It was resolved by us not pressing paragraph 65 of Ms Connor's statement.

PN338

VICE PRESIDENT HATCHER: So we strike that out?

PN339

MR SCOTT: Yes, if the Commission pleases.

PN340

VICE PRESIDENT HATCHER: All right. We will get Ms Connor in, please.

PN341

THE ASSOCIATE: Please state your full name and address.

PN342

MS CONNOR: Sandra Gaye Connor, (address supplied).

<SANDRA GAYE CONNOR, AFFIRMED [11.59 AM]

EXAMINATION-IN-CHIEF BY MR SCOTT [11.59 AM]

*** SANDRA GAYE CONNOR XN MR SCOTT

PN343

MR SCOTT: Good morning, Ms Connor?‑‑‑Good morning.

PN344

You have given a witness statement in these proceedings?‑‑‑Yes.

PN345

You have a copy in front of you?‑‑‑Yes.

PN346

Are there any corrections that need to be made to that statement?‑‑‑Yes, just one amendment of a typographical error in point number 28.

PN347

Can you identify where the error is in paragraph 28, Ms Connor?‑‑‑In the last sentence of that paragraph.

PN348

What is the error?‑‑‑It should read, "Often they will stay," instead of "say". The "stay" needs to - - -

PN349

Thank you, Ms Connor?‑‑‑Thank you.

PN350

I tender that statement, your Honour.

PN351

VICE PRESIDENT HATCHER: All right. The statement of Sandra Connor, dated 31 March 2017, will be marked exhibit C, noting that by agreement paragraph 65 has been struck out.

EXHIBIT #C STATEMENT OF SANDRA CONNOR DATED 31/03/2017

CROSS-EXAMINATION BY MR HARMER [12.00 PM]

PN352

MR HARMER: Ms Connor, you indicated that prior to your engagement in relation to the Black Bear Inn, you ran the House of Ullr in Thredbo. Correct?‑‑‑Yes.

PN353

The House of Ullr itself consists of accommodation and some food and beverage services. Correct?‑‑‑Yes.

PN354

It's a very similar business to the Black Bear Inn that you now operate. Correct?‑‑‑Yes.

*** SANDRA GAYE CONNOR XXN MR HARMER

PN355

You operated from 2003 to 2011 in the House of Ullr. Correct?‑‑‑Yes.

PN356

Since that time you have operated the Black Bear Inn. Correct?‑‑‑Correct.

PN357

Are you able to inform the tribunal which award you apply in operating the business?‑‑‑The current business, you mean?

PN358

Yes?‑‑‑Yes, the Hospitality Award.

PN359

Has that been the case throughout your time with the Black Bear Inn?‑‑‑No.

PN360

Why is that not the case?‑‑‑Initially we adopted the Alpine Resorts Award when we first started operating at the Black Bear.

PN361

In 2011?‑‑‑Yes.

PN362

Why did you do that?‑‑‑We have a bookkeeper who recommended that we could use that award.

PN363

Did you look at the coverage of the award at all?‑‑‑Yes.

PN364

Did you understand it just applied to the ski lift operators in the industry?‑‑‑No.

PN365

In relation to the House of Ullr previously, which award did you apply?‑‑‑From memory, because it was some time ago, I think - - -

PN366

MR IZZO: Your Honour, if I could just raise an objection at this point and it might be something we can deal with - if questions are going to be asked such that they are intending on disclosing noncompliance, albeit inadvertent, then I think the witness should probably be notified that she may expose herself to a civil penalty and we should probably deal with it either - if we can have either the questions aren't asked, that's our primary objection or, alternatively, we enter into an appropriate arrangement whereby the witness is not in any way going to be prejudiced by the answering of the questions that are being asked.

PN367

VICE PRESIDENT HATCHER: All right. She could be exposed to a civil penalty if she was involved by a contravention by the employing entity.

*** SANDRA GAYE CONNOR XXN MR HARMER

PN368

What is the employing entity? Is there a company that you operate to - - -?‑‑‑Yes.

PN369

Mr Harmer, what do you say about this?

PN370

MR HARMER: Your Honour, I don't seek to compromise the witness in any way. I'm happy for the witness to have such protection as she needs. I'm merely just inquiring as to the history of award coverage and I'm going to ask questions more going forwards now. I think probably the issue has been traversed already and we're certainly happy for whatever protections could practicably be put in place to be available to all the witnesses. I honestly didn't know what the answer was to the question.

PN371

VICE PRESIDENT HATCHER: You're moving on now to - - -

PN372

MR HARMER: I'll move forward, your Honour, given what has been raised.

PN373

VICE PRESIDENT HATCHER: All right.

PN374

MR HARMER: You understand that these proceedings are an attempt to reapply to your business the Alpine Resorts Award. Correct?‑‑‑Yes.

PN375

Are you able to inform the Commission why it is that your business wants to have the Alpine Resorts Award apply to it?‑‑‑Yes. I believe that the expenses that we incur for paying of wages would not be as great if we were to adopt the Alpine Resorts Award.

PN376

Is that the sole purpose, to reduce your operating costs? Correct?‑‑‑No.

PN377

What else is there?‑‑‑Just so that we are all on a level playing field in regards to employment of staff, as well.

PN378

What do you mean by that?‑‑‑Well, at the moment it is - we are prejudiced by not being able to use the same award because we do have to pay more in wages.

PN379

Sorry, when you say "more in wages", that's compared to Kosciuszko Thredbo Pty Ltd that operates the ski lift. Is that correct?‑‑‑That's my understanding.

*** SANDRA GAYE CONNOR XXN MR HARMER

PN380

Okay. Thank you.

PN381

VICE PRESIDENT HATCHER: So you mean a level playing field with other accommodation providers run directly by a ski lift operator. Is that what you mean?‑‑‑Yes.

PN382

What are some of the accommodation facilities that they operate at Thredbo to compete with yours?‑‑‑They have a hotel similar ours. They also manage apartments in the village which is not similar to ours, but - - -

PN383

You, as it were, compete with them for customers, do you?‑‑‑Yes.

PN384

Speaking for ourselves, I must say I had the impression at least during the snow season all these places would be fully booked out. It's not is if you have got any shortage of people who want to stay there. Am I wrong about that?‑‑‑It depends on the weather actually.

PN385

Right?‑‑‑Yes. So at times it could be an issue, yes.

PN386

All right. Thank you.

PN387

MR HARMER: Ms Connor, can I just take you to this scenario: say during the initial school holiday period of the season, you would regularly be close to full capacity in your accommodation premises. Correct?‑‑‑Correct.

PN388

At the Black Bear Inn, you also operate some food and beverage facilities. Correct?‑‑‑Correct.

PN389

If there are bad winds and people can't utilise the ski lifts, there would actually be an increased utilisation of your food and beverage facility during the period that the lift is shut. Correct?‑‑‑No.

PN390

Why is that not the case?‑‑‑We don't open our accommodation - the beverage and restaurant bar areas are not open until the evening.

PN391

I see?‑‑‑So we don't open through the day.

*** SANDRA GAYE CONNOR XXN MR HARMER

PN392

Thank you. Throughout your time with the House of Ullr and the Black Bear Inn - throughout that whole period you would say you have been in competition with Kosciuszko Thredbo Pty Ltd. Correct?‑‑‑Yes.

PN393

In 2011, you decided to take over the running of the Black Bear Inn. Correct?‑‑‑Yes.

PN394

You did that in full knowledge of that history of competition. Correct?‑‑‑Yes.

PN395

Without disclosing the details, you have made a profit in operating your business since 2011. Correct?‑‑‑Yes.

PN396

It's the case, is it not, that if Kosciuszko Thredbo Pty Ltd makes very good snow or grooms very good snow or promotes the resort, you're a potential beneficiary of that attraction to the resort. Correct?‑‑‑Yes.

PN397

It's true, isn't it, that Kosciuszko Thredbo promotes a number of events during the course of the year. Correct?‑‑‑Some, yes.

PN398

If I can take the non‑winter season, you would operate over December/January. Correct?‑‑‑Yes.

PN399

During that time it's true that the resort promotes, for example, a national fitness week event which attracts a lot of people to the resort. Correct?‑‑‑Yes.

PN400

It operates and promotes a jazz festival. Correct?‑‑‑Could you please ask that again, that question. What did you say?

PN401

The resort promotes a jazz festival - - -?‑‑‑Yes.

PN402

- - - conducted during January each year. Correct?‑‑‑Correct.

PN403

That also attracts additional custom to the resort. Correct?‑‑‑Yes. They're not the only ones that promote it.

PN404

Yes?‑‑‑The Chamber promotes it, as well.

*** SANDRA GAYE CONNOR XXN MR HARMER

PN405

Thank you. Are you familiar with the concept of a feeder town to the resorts?‑‑‑No.

PN406

Okay. Thank you. If it pleases, I've got no further questions.

CROSS-EXAMINATION BY MR BRUNO [12.10 PM]

PN407

MR BRUNO: Ms Connor, my name is Mr Bruno. I appear on behalf of the SDA. I just have a few questions for you. It's the case that the business you manage, BBI - or Black Bear Inn Lodge - doesn't just cater for the ski season?‑‑‑Correct.

PN408

In terms of your staffing needs, in the summer period it's the case that you employ five staff members?‑‑‑Yes.

PN409

I think you have given evidence that it's under the Hospitality Industry (General) Award?‑‑‑Yes.

PN410

But your staffing needs do increase in the winter period up to 15 employees?‑‑‑Correct.

PN411

Now, the five people that work for Black Bear Inn all year round, they don't travel to Thredbo, do they? Is it the case that they're locals that live there?‑‑‑Not all of them, no.

PN412

Where do they live? Are you able to summarise that? Not their precise address?‑‑‑This last year one of the employees I had was from Queensland.

PN413

But do you have any that live in the local area? So perhaps in Jindabyne or - - -?‑‑‑Yes.

PN414

VICE PRESIDENT HATCHER: Can I just clarify that. Do any of them live actually in Thredbo of the five you mentioned?‑‑‑Of the five that have been mentioned in my statement? One of them lived with us at the lodge.

PN415

One came from Queensland, so where did the others - - -?‑‑‑That was the lady who lived at the lodge.

PN416

I see?‑‑‑We provided - - -

*** SANDRA GAYE CONNOR XXN MR BRUNO

PN417

Where did the other four come from?‑‑‑Nearby, locally. One was in Jindabyne. One was halfway between Thredbo and Jindabyne, yes.

PN418

In that sort of vicinity?‑‑‑Yes.

PN419

All right. Thank you.

PN420

MR BRUNO: This might be an obvious question, but I will ask you. You would accept for the five employees that you employ in the summer period, they're not there to ski because there is no skiing available during that period?‑‑‑Correct.

PN421

At paragraph 51 of your statement - I think you have got that in front of you. If you go to that paragraph, you say there that you estimate about 75 per cent of your employees in winter come to ski and snowboard, and there are about 25 per cent who are there to work hard and earn money. Can I just clarify, you're not suggesting the 75 per cent don't do a good job?‑‑‑Pardon?

PN422

You're not suggesting when you say that 75 per cent of your employees are there in winter to come and ski and snowboard, and then there are 25 per cent who are there to work hard and earn money - I'm just clarifying, for the 75 per cent, you're not suggesting that they don't do a good job for you?‑‑‑Not at all.

PN423

When you say that there are about 75 per cent who are there to ski, would you accept as a general proposition that as an employer you could not know all the factors which might motivate someone to come and work for you?‑‑‑Yes.

PN424

It's the case though that during the busy period in the ski season, your business is able to offer fairly long hours for employees. If I take you to paragraph 45, you have referred to between 38 and 50 hours?‑‑‑Correct.

PN425

That's correct?‑‑‑Mm‑hm.

PN426

In terms of employees coming to work for you in the ski season, that suits your business, doesn't it?‑‑‑(No audible reply).

PN427

I'll put the question a bit differently. You have a sufficient number of people who want to work for you in the ski season?‑‑‑Sometimes.

*** SANDRA GAYE CONNOR XXN MR BRUNO

PN428

In terms of having a pool of people available sometimes, that suits your business in terms of being able to meet the demands which are imposed when it gets busy?‑‑‑Yes.

PN429

At paragraph 45 of your statement you say that Sunday is the major changeover day. Can you just explain firstly what you mean by that?‑‑‑Okay. The majority of people that do stay, if they're just staying for a weekend it's usually always a mandatory Friday and Saturday night with departure on a Sunday or otherwise the majority of five night stays or seven night stays are usually always departing on a Sunday, as well.

PN430

So when you describe it as Sunday being a changeover day, is that because people are departing on Sunday and then people are arriving on Sunday?‑‑‑Correct.

PN431

Are you able to provide any comment about whether Thredbo - if Sunday is a changeover day or not for the region?‑‑‑Generally, yes.

PN432

In the winter season would it be true that for the business you manage, the weekends in particular have the higher occupancy rates?‑‑‑Yes.

PN433

Is that because you have got weekend visitors coming say on Friday night and then departing on the Sunday?‑‑‑Correct.

PN434

Would it be fair to say that the weekends is when your business proportionally per day derives the most income?‑‑‑No, I don't think so.

PN435

How do you explain that?‑‑‑Well, the occupancy over the peak months of July and August is usually quite high, anyway.

PN436

So on a Monday, Tuesday, Wednesday, as well?‑‑‑Yes. Not everyone just comes for a two‑night stay. The overall occupancy is at a much higher level during the July and August months.

PN437

If we go on either side of July and August, so June and September - - -?‑‑‑Yes.

PN438

- - - would it be then where you experience higher occupancy per day on a weekend day rather than a weekday?‑‑‑Yes.

*** SANDRA GAYE CONNOR XXN MR BRUNO

PN439

Would you accept that for your business the ski season is ultimately the time that you want to knuckle down and try and attract as much revenue as possible?‑‑‑Yes.

PN440

That involves to an extent recognising that you need to work long hours to deal with the demands?‑‑‑Yes.

PN441

During that period - this is the winter season - you do take on more staff to service that demand?‑‑‑Correct.

PN442

Do you do that by utilising casuals?‑‑‑Yes.

PN443

In terms of Thredbo generally outside of the ski season - you have been there for a while. Are you able to comment on whether Thredbo is becoming more popular at other times of the year?‑‑‑Well, the mountain biking season has been promoted a lot more and there are a lot more events, and a lot more tracks have been provided for riders of - the mountain biking or for mountain biking. It doesn't really make a lot of difference to operators like myself because the people that tend to be mountain bike riders, especially if they're downhill riders which is what usually is attracted to the area, tend to not stay or dine in a place like ours.

PN444

Is that because - I think you have said in your statement - you have single rooms?‑‑‑No, we don't have single rooms.

PN445

Have I got that wrong? Perhaps if you could explain the rationale for that?‑‑‑Because they don't - well, they would prefer to stay at a cheaper cost than what it would cost them to stay in accommodation such as ours or eat in a restaurant such as ours.

PN446

Having lived in Thredbo, are you able to comment on whether Thredbo during the ski season is relatively expensive in terms of day‑to‑day living costs?‑‑‑Yes, it is.

PN447

It is. Is that why you try to assist your employees by offering a number of them with subsidised accommodation of $190 per week?‑‑‑Correct.

PN448

With that subsidy of $190, have you derived that from the Hospitality Industry Award? If you don't know the answer to that, that's okay?‑‑‑No, I don't know the answer.

PN449

I have no further questions.

*** SANDRA GAYE CONNOR XXN MR BRUNO

PN450

VICE PRESIDENT HATCHER: Mr Crabb, do you have any questions?

PN451

MR CRABB: No questions.

PN452

VICE PRESIDENT HATCHER: Any re‑examination?

PN453

MR SCOTT: Yes. Thank you, your Honour.

RE-EXAMINATION BY MR SCOTT [12.19 PM]

PN454

MR SCOTT: Ms Connor, can I take you to paragraph 63 of your statement?‑‑‑Mm‑hm.

PN455

You were asked a question earlier about competition within Thredbo. You indicate there that:

PN456

KT has the power to divert business away from our accommodation facilities to its own accommodation businesses.

PN457

You refer the Thredbo Alpine Apartments, Merritts Mountain House and the Thredbo Alpine Hotel to name just a few. Are there any others that you can think of - and I appreciate you might not know, but are there any others that you are aware of that are accommodation providers in Thredbo owned by Kosciuszko Thredbo?‑‑‑I know they are managers of other apartments in the village, yes. I'm not sure whether they actually own them or not, but I know they manage them.

PN458

Do you consider these businesses competitors of the Black Bear Inn?‑‑‑Yes.

PN459

Why do you say that?‑‑‑Because they're very similar. They provide a very similar product to what we provide.

PN460

Thank you. No further questions, your Honour.

PN461

VICE PRESIDENT HATCHER: Thank you for your evidence, Ms Connor. You're excused and you're now free to go.

<THE WITNESS WITHDREW [12.20 PM]

*** SANDRA GAYE CONNOR RXN MR SCOTT

PN462

VICE PRESIDENT HATCHER: Who is next?

PN463

MR SCOTT: Mr Pennington was due next. He is giving evidence via telephone. He was due to give evidence at 2 pm. I had a chat with your associate earlier about the fact that we need some time to get him on the phone due to the technical setup. Whether it's convenient to the Bench to have an early lunch and we can get him on the phone.

PN464

VICE PRESIDENT HATCHER: Can we get him earlier than 2.00?

PN465

MR SCOTT: I think we can. It will just be a matter of giving him a call and hoping he picks up.

PN466

MR BRUNO: There wasn't an objection in relation to Ms Connor's evidence, but the first objection arises in relation to Mr Pennington's. If it would assist, we could deal with the objections. The submissions that I intend on making apply generally to the evidence where a similar objection is made.

PN467

VICE PRESIDENT HATCHER: Right.

PN468

MR BRUNO: That might take 10 minutes or so.

PN469

VICE PRESIDENT HATCHER: Put those together. Yes, all right. That's three objections?

PN470

MR BRUNO: Yes. There are also some resolved objections in relation to Mr Pennington's statement. Perhaps if we inform the Commission about what those are.

PN471

VICE PRESIDENT HATCHER: Yes.

PN472

MR IZZO: In terms of the resolved objections, the whole paragraph of paragraph 35 has not been pressed and we can strike out.

PN473

VICE PRESIDENT HATCHER: Paragraph 35.

PN474

MR IZZO: The next one is paragraph 39. It's from the words in 39 "and therefore we had the absurd situation". Now that appears in the third last line of paragraph 39. Everything from "and therefore we had the absurd situation" to the end of the paragraph is struck out. All of paragraphs 40 to 42 are not pressed and can be struck out.

PN475

VICE PRESIDENT HATCHER: All right.

PN476

MR BRUNO: In terms of the objections that do remain with this particular statement, they are in paragraph 19, not the whole paragraph; paragraph 20, the whole paragraph; paragraph 21, the whole paragraph; paragraph 23, the whole paragraph. Perhaps if I could just address the Commission generally about the nature of the objection, because what I say will apply to the objections which are made in relation to the other evidence and so I don't want to waste the Commission's time by repeating the same general submissions, if that would assist.

PN477

VICE PRESIDENT HATCHER: Yes.

PN478

MR BRUNO: What the objections are in relation to in the witness statements is where an employer witness provides evidence in relation to the work day preferences of their particular employees. Now, I say that there are two ways that that evidence is given in the witness statements. The first way is it's either a speculatory statement based on perhaps some observations that a witness has made, so, "I have seen my employer on the mountain," or, "I assisted them with purchasing ski equipment," or, "I have helped them with ski clothes," or something like that.

PN479

They then might go on to say what their employees' preference is with respect to work days and that preference is often explained as wanting to work on the weekends because it's better to have a weekday off because they can go skiing. I say that's one example of the way the evidence is given. Sometimes it's on the basis of a hearsay statement, so, "I spoke to my employee and my employee told me that, 'I like working on weekends rather than on weekdays because I can go skiing on the weekdays because it's not as busy'."

PN480

Now, what I say about this type of evidence is - and turning to the issue of speculation first - that what someone's belief is about the preference to another person with respect to a topic like work day preferences isn't actually relevant in this proceeding. What is relevant is what in fact the preference is of the particular employee. Evidence of speculation doesn't really assist the Commission because the evidence should be from the particular employee themselves.

PN481

On the other hand, what I've just said is that relevant and probative evidence on this topic would be from the employees because they're the only ones in a position to explain what motivates them or what their preferences are with respect to work days. Many of the employer witnesses do base their - as I've said - preference evidence in relation to observations. I do accept that, but the ultimate view can only be speculation. If could make good that submission - - -

PN482

VICE PRESIDENT HATCHER: It's not speculation. If somebody has a discussion with an employee and the employee expresses when they want to work and the reasons why, that's not speculation.

PN483

MR BRUNO: That's the hearsay.

PN484

VICE PRESIDENT HATCHER: It's hearsay, but is there any reason to suspect it's not true?

PN485

MR BRUNO: What I say is that the conversation - if I move to the hearsay statements, which I was going to come to, but I think it's a good opportunity to address that now. It's not that the employee might not have a preference which aligns with working on a weekday, but there are a multitude of factors which might motivate someone to work on a particular day which they don't necessarily convey to their particular employer.

PN486

For example, one of the reasons might be that before they left to come to Thredbo or Mount Hotham or wherever, they knew that it was a busy time of year. They saw it as an opportunity to derive some income; that they could get consistent hours and they chose to go to a place where they did give up their weekends and work on particular weekend days. There is the added benefit, if they like skiing, of skiing on a day where it's less busy.

PN487

The concept or the issue of what motivates an employee, even in terms of the hearsay statements, can't be discerned purely from the conversation that might be had between an employer and an employee. I can't, for example, cross‑examine the employers about these other factors which might motivate their employees because they couldn't know what is in the mind of their employee. That's in relation to the hearsay. Some of the same submissions do apply in relation to speculation. I say that speculation is in a category where it's not useful evidence at all for the Commission.

PN488

In terms of the submission that is put against me, it's said in the written submissions that my friend has filed that the SDA could have sought evidence in relation to employee preferences, but my submission in response to that is the proponent for change ought to bring probative evidence on particular topics.

PN489

Now, the issue of employee preferences is quite important for this review in terms of the nature of the application that has been brought. The application seeks to bring in, as I've said in opening, a pool of employees who are otherwise covered by the other awards, the general awards, which do have penalty rates, so it's significant. What I say there is where a significant change is sought, that probative evidence ought to be adduced in relation to that particular topic.

PN490

In terms of the evidence from these employees, it's the very employers who are giving evidence. It's their employees. Those particular employees could have been called to provide evidence to the Commission about what they like in terms of doing on their weekends or in relation to work days. In my submission, that was open to the applicants to call some employee evidence on this topic.

PN491

The fact that if this evidence is excluded there might be an absence of evidence before the Commission in relation to one of the criterion in the modern awards objective, and that is the criteria in relation to the need to provide additional remuneration for weekend work and for working unsocial hours, et cetera, that might be the case that there isn't probative evidence before the Commission, but that's not a reason to then admit the evidence.

PN492

That's what I wanted to say generally. If I could then speak to each paragraph, would that assist the Commission in relation to - - -

PN493

VICE PRESIDENT HATCHER: For this statement?

PN494

MR BRUNO: Yes.

PN495

VICE PRESIDENT HATCHER: Yes.

PN496

MR BRUNO: In relation to the statement. If I go to paragraph 19, objection is taken from the words -

PN497

so that they can utilise their time during the midweek and in particular during daytime to ski or snowboard.

PN498

I say that is an example of speculation. Then if we go to paragraph 20:

PN499

During the weekends when there are large crowds within the Mount Hotham alpine resort, the crowds act as a disincentive for the staff to ski and snowboard.

PN500

I say again that that is a speculative statement. In 21:

PN501

Conversely, when the tourist numbers within the resort are less during the week, that improves the standard of skiing, snowboarding and, hence, the preference of the staff to work during evenings and/or at weekends.

PN502

The simple fact with a lot of these statements is that staff are accessing the general industry awards which currently provide for penalty rates, so for a witness to make conclusions about preferences, it's only part of the puzzle and, in my submission, isn't probative in relation to the issues that the Commission has to consider. Then, lastly, paragraph 23:

PN503

I have had many conversations with staff over the years about this topic and most request to work during the evenings or weekends so they can engage in snow sports during the midweek days.

PN504

They might want to work on the weekends for other reasons, not just because they might like skiing. They're the submissions that I wanted to make in relation to this particular statement and generally in relation to the objections.

PN505

VICE PRESIDENT HATCHER: All right. Thank you. Mr Izzo?

PN506

MR IZZO: Your Honour, I agree with the characterisation of this type of evidence into two categories. Most of it I think is hearsay. There is a statement about what employees have told the owners and then there are also opinions, if you like, based on direct observations; "I have seen the staff skiing on the mountain; I see them walk with their ski gear so I know they like skiing."

PN507

Obviously the Commission is not strictly bound by the Rules of Evidence and can admit this type of evidence into proceedings, and give it what weight it deems appropriate, but there are some very important reasons why this evidence should be admitted. The first is that there is a key issue for determination in these proceedings which relates to - we know it's about the applicability of the award conditions for the staff. One of the key differentiating factors of this award, amongst many others, is the penalty rate provisions. There are no penalty rates in these awards and there has to be a reason for that.

PN508

As you have heard from the Full Federal Court authority, the obligation of this Bench is to review this award and to determine whether its terms and conditions are appropriate. A critical question that you will be faced with is, well, why are there no penalty rates? Why is that appropriate when in the vast majority of cases and elsewhere in retail and hospitality industries there are penalty rates? Why are there none here?

PN509

VICE PRESIDENT HATCHER: It's not submitted the evidence is not relevant. It's submitted that it's not probative. It's obviously relevant. It's whether it's of any value, is the question.

PN510

MR IZZO: Once we establish that it's relevant, your Honour, in terms of its probative value - yes, I acknowledge that in the circumstances of hearsay, technically objections can be taken to hearsay evidence, but what I would say about its probative value here is a few things. (1) it's not contested. In fact, on the contrary. The ASAA advances the same argument. The witness statement of Mr Girling makes the point; the very same point that we make here.

PN511

VICE PRESIDENT HATCHER: It's the SDA's objection, so - - -

PN512

MR IZZO: It's also, your Honour, a matter which would very well be within the knowledge of the operators who are giving the evidence. They have dealings with these employees on a day‑to‑day basis, presumably over the course of a season. They would know them relatively intimately. They would know them well. You would think they would know whether they enjoy skiing or not.

PN513

If we just imagine the context in which this is occurring. There are good days, there are bad days. The businesses, as you saw, are right in front of the ski resort. It would be highly unlikely, it would be extremely unlikely, that the owners aren't talking to these employees on a regular basis about the snow and the snow conditions, so we say they are in a good position to make this assessment and that goes to the probative value.

PN514

One of the other things that is quite relevant is that the Australian Industrial Relations Commission made the award in 2010 and it made the award without penalty rates based on submissions only. In terms of the position this Bench is in to make an assessment of the appropriate penalty rates, you would be in a far better position to have the benefit of this evidence than the AIRC was in 2009 when it just accepted the submissions of the ASAA together with the consent position from the AWU. In the course of conducting a review, it is preferable that you have all the relevant information in front of you. As we have said, this is relevant and we say these operators are in a good position to give that evidence. That's what I would say in relation to the hearsay point.

PN515

In relation to the direct observations, well, some of them are actually just admissible as direct observations. If an operator says, "I've seen my employees go up the mountain with ski gear," that is an observation they are entitled to make. It's a factual observation and to then derive from that an opinion that they like skiing, well, we know exactly the basis for that. It's quite understandable and it has a high probative value in that sense.

PN516

The direct observations actually aren't inadmissible. They are technically admissible and whilst Mr Pennington's might not be the best example, there are certainly statements which talk about the fact that, "I have seen my employees go off skiing and I see them on the mountain." They are the two categories of objections.

PN517

The other thing that we would say is that the SDA did have an opportunity to put on its own evidence if it wanted. It chose not to. We are the only party who has gone to the effort of putting on individual witness statements to try and prove some of the matters that need to be determined by this Bench. It's a bit rich, for want of a better phrase, to now be saying, oh, well this isn't probative. The other parties haven't put on any evidence of this - well, sorry, the SDA hasn't put on any evidence.

PN518

Interestingly, Mr Girling puts on evidence about this very matter and the SDA takes no objection to Mr Girling's statement with regard to employee preferences, so there is an inconsistency in the SDA position there. I don't understand why Mr Girling is qualified to give that evidence, but our operators aren't.

PN519

VICE PRESIDENT HATCHER: You usually don't object to evidence that supports your case, in my experience.

PN520

MR IZZO: Well, it's the same evidence, your Honour. I have been asked for the paragraph. I can give the paragraph. Mr Girling refers to the preferences of employees. Finally, when it comes to the suggestion that our clients could have called the evidence from the relevant employee witnesses, I would say two things. Our clients are registered industrial organisations representing employers. In their position it is quite difficult to get contact with and to readily obtain evidence from employees.

PN521

The party that is in the best position to get this kind of evidence is a union; is the SDA. They have not done so. I mean, we could raise a Jones v Dunkel inference on the fact that they haven't. We haven't done so.

PN522

VICE PRESIDENT HATCHER: Well, that is a separate point. It doesn't deal with the question of the admissibility of this evidence.

PN523

MR IZZO: Agree, your Honour, but at the end of the day in relation to this particular evidence - which is uniform in nature across the operators and uniform for Mr Girling - it's clear it's a relatively uncontroversial matter. It's a matter you're going to have to deal with and turn your minds to, so you would in a better position to have the evidence, accept submissions as to weight and obviously the SDA can have the opportunity to cross‑examine should it wish to test the evidence.

PN524

On that basis we say that there is more value in admitting the evidence and making whatever submissions are appropriate, particularly given the framework within which the Fair Work Commission operates, than to exclude it and proceed without the benefit of any direct evidence on this subject matter.

PN525

VICE PRESIDENT HATCHER: All right. Thank you. We propose to admit the evidence, subject to these two conditions. Firstly, Mr Izzo, in each case where there is an impugned paragraph, you should take up with the witness what the precise source of the information is; whether it's a conversation, observation or something else. Secondly, subject to any submissions as to weight which the parties might ultimately wish to make.

PN526

MR IZZO: May it please.

PN527

VICE PRESIDENT HATCHER: Mr Bruno, will that deal with the objection generally?

PN528

MR BRUNO: I think so.

PN529

VICE PRESIDENT HATCHER: Yes.

PN530

MR BRUNO: I should probably just check before each witness.

PN531

VICE PRESIDENT HATCHER: Yes.

PN532

MR BRUNO: But I think they're all in that same category.

PN533

VICE PRESIDENT HATCHER: All right. Can we have an early luncheon adjournment and, say, call Mr Pennington at 1.45?

PN534

MR IZZO: Yes. I might just raise a housekeeping matter with the Bench. Mr Pennington is listed as the final witness for the day. We hadn't had any advance notice of how long the parties are going to be with each witness. I know it's undesirable for us to have gaps in the hearing schedule. We had raised with the ASAA whether the cross‑examination of Mr Girling could be brought forward - interposed, as it were - at any point for the convenience of the Commission solely. We were willing to do that.

PN535

I understand there is an objection to that on the ASAA's part, but I just raise that because it may be that there are holes, unfortunately, because we just didn't know how long the witnesses would be. We just offer that as a possible solution so as to not inconvenience the Bench. Mr Girling is currently scheduled for Thursday morning. We have Mr Pennington this afternoon and about four witnesses or so over each of the next days. I just raise it at the moment.

PN536

VICE PRESIDENT HATCHER: Mr Harmer or Mr Bruno, are you in any position to cross‑examine him this afternoon?

PN537

MR HARMER: I'm in a position to cross‑examine Mr Pennington. In terms of the issue that has been raised about Mr Girling, with respect, for obvious reasons we would prefer his evidence to follow all the witnesses of - - -

PN538

VICE PRESIDENT HATCHER: But are you in a position to cross‑examine him this afternoon?

PN539

MR HARMER: Cross‑examine - - -

PN540

VICE PRESIDENT HATCHER: It's your witness. Sorry, yes. You're in a position to cross‑examination him this afternoon?

PN541

MR IZZO: If given notice now.

PN542

VICE PRESIDENT HATCHER: Why would he need to follow - I mean, he is in court, so on one view it's desirable he gives evidence as soon as possible.

PN543

MR HARMER: Obviously just if anything arises from the witnesses, we would seek to put some information to him - - -

PN544

VICE PRESIDENT HATCHER: Well, you can bring him back again in that situation.

PN545

MR HARMER: If we can recall him, then that's - - -

PN546

VICE PRESIDENT HATCHER: All right. We will call Mr Girling this afternoon and then perhaps at the end of the day the parties can have a look at the timetable and see whether it can be compressed further. Can I just indicate - and I notice this is a note in the timetable - that on Friday we will start at 9 am.

PN547

MR IZZO: May it please.

PN548

MR HARMER: May it please.

PN549

VICE PRESIDENT HATCHER: All right. We will adjourn until 1.45.

LUNCHEON ADJOURNMENT [12.44 PM]

RESUMED [1.48 PM]

PN550

VICE PRESIDENT HATCHER: Mr Scott?

PN551

MR SCOTT: We call Mr Pennington.

PN552

VICE PRESIDENT HATCHER: Yes, we have him on the phone.

PN553

MR SCOTT: We do, I believe.

PN554

VICE PRESIDENT HATCHER: Yes. We will administer the affirmation to him.

PN555

THE ASSOCIATE: Could you please state your full name and address.

PN556

MR PENNINGTON: Stephen Gary Pennington,(address supplied).

<STEPHEN GARY PENNINGTON, AFFIRMED [1.48 PM]

EXAMINATION-IN-CHIEF BY MR SCOTT [1.48 PM]

UNCLEAR PHONE LINE - MONITOR NOTIFIED ASSOCIATE [1.48 PM]

PN557

MR SCOTT: Mr Pennington, can you hear me okay?‑‑‑Yes. It's a little bit muffled, but I got it.

PN558

Is that better?‑‑‑Yes, that's better.

PN559

It's Kyle Scott here. I'm just going to ask you a few questions about your statement?‑‑‑Sure.

*** STEPHEN GARY PENNINGTON XN MR SCOTT

PN560

You have given a statement in these proceedings. Is that correct?‑‑‑That is correct.

PN561

You have a copy in front of you?‑‑‑I do.

PN562

Can I take you to paragraph 19 of your statement, please?‑‑‑Paragraph 19, yes.

PN563

You say there:

PN564

During the ski season, there is a preference by the staff to work at weekends and during the evening so that they can utilise time during midweek and in particular during daytime to ski or snowboard.

PN565

Are you able to explain to the Commission the source of your knowledge of that assertion?‑‑‑Yes, sure. My partner and I have been working (indistinct) business and it might sound hard to believe (indistinct) 85 hours per week (indistinct) staff, so we don't get (indistinct) from our managers or other subordinates (indistinct) rostering, it's done directly because we do the roster. What I find mostly is that where we have to rotate their days off, they all prefer to work - are you there?

PN566

Yes?‑‑‑Can you hear me still?

PN567

Yes, we can?‑‑‑Sorry. They all prefer to work outside of the week, so they prefer to have their days off during the Monday to Friday period. Mostly that's designed around sometimes their social calendar. More sort of social events are usually on a Monday and Tuesday for staff, so they want those days off and it's just less congested on the ski field basically.

PN568

When you say they want those midweek days off, how do you know that?‑‑‑Well, they come to us directly. You know, our rostering is done, like I said, by (indistinct) myself (indistinct) and a verbal conversation where they actually request those days off. It also comes down to on a weekend there is no real accommodation available (indistinct) hundred per cent occupancy - friends, family and other people (indistinct) don't have an opportunity (indistinct) regardless, so cheaper accommodation, accessibility of accommodation to accommodate their friends and family that come and visit them from time to time is only available really during the midweek.

PN569

At paragraph 20 you say:

PN570

The crowds on the weekends act as a disincentive for the staff to ski and snowboard.

*** STEPHEN GARY PENNINGTON XN MR SCOTT

PN571

Can you explain why you say that?‑‑‑Yes. Once again we allow all of our staff to store all their snowboard equipment at our place because we're quite central and some of them are travelling up (indistinct) or might be travelling from different lodge accommodation provided, so we (indistinct) most of them get out quite early, get what they call first tracks or first run. They're pretty much back in by 9 o'clock. There is a (indistinct) for not liking (indistinct) and for, you know, the ski resorts being (indistinct) and it's just very congested (indistinct) as the day wears on.

PN572

You said there, Mr Pennington, that your staff store snowboards and other ski equipment at your premises?‑‑‑That's right.

PN573

How many of your employees would do that?‑‑‑Out of the 48 or so, 50, we had this year, at least - there's probably four or five (indistinct) another 10 that (indistinct) they're the ones that really want - they're the main skiers, main boarders, that (indistinct) so, you know, normally they're the ones that are chasing it down. They store that there so they can just, you know travel (indistinct) pick up their stuff and (indistinct) as they can. On the weekend (indistinct) very long (indistinct).

PN574

Right. Can I take you just quickly to paragraph 23. You indicate there that you have had many conversations with staff over the years about this particular topic and by that I assume you mean employee preferences about when they work?‑‑‑(indistinct).

PN575

Are you able to give us an example of perhaps one of those conversations?‑‑‑Yes, look, even like last year one of our managers sort of came to us and, you know, basically they're trying to look, you know, for the (indistinct) hours also. You know, take a little bit of time off during midweek and that is their preference, but what they mostly want (indistinct) our manager had his family staying up during midweek. He came to me and said, "Look, I really want to make up those hours. The best time for me to do that is the weekend," so the weekend - because of the added clientele that we have visiting Mount Hotham and (indistinct) is the best chance of getting longevity in hours, so they get more busier, they get longer shifts. They have early starts and they can earn quite a bit of money on the weekend.

PN576

Thanks, Mr Pennington. That's all from me.

PN577

VICE PRESIDENT HATCHER: Do you tender the statement?

*** STEPHEN GARY PENNINGTON XN MR SCOTT

PN578

MR SCOTT: I do, yes. Thank you.

PN579

VICE PRESIDENT HATCHER: Yes, all right. The statement of Stephen Gary Pennington, dated 30 March 2017, will be marked exhibit D.

EXHIBIT #D STATEMENT OF STEPHEN PENNINGTON DATED 30/03/2017

CROSS-EXAMINATION BY MR HARMER [1.54 PM]

PN580

MR HARMER: Hello, Mr Pennington. If you can't hear me at any time, please just let me know. Thank you?‑‑‑Okay.

PN581

Mr Pennington, how long have you been in your current role at Dinner Plain and Mount Hotham?‑‑‑My current role at Hotham (indistinct) general premises in May 2000 to current. At Dinner Plain, we have had various businesses down there over the years between 2000 and 2003, a little bit of a hiatus until about five years ago when we took on a lease down there, so 15 years with (indistinct).

PN582

You maintain at paragraph 3 of your statement that you have got a good understanding of the local area, tourism, hospitality in the area and the Hotham resort. You see that?‑‑‑Yes. Look, my family reside in Dinner Plain, as well, which (indistinct) in Hotham, but I've got a good understanding of both.

PN583

I might just pause. If the Commission pleases, the issue that arose before is a bit more stark with this witness, in that he has previously put on evidence of which awards he was and was not applying. In my respectful submission, I don't think it's quite as serious an issue, but I'm in the hands of the tribunal whether there is any need to issue a caution or otherwise on the issue of awards.

PN584

VICE PRESIDENT HATCHER: Mr Izzo?

PN585

MR IZZO: Your Honour, I must say I haven't fully read up on the ability of the Commission to issue the kind of certificates under the Evidence Act that - - -

PN586

VICE PRESIDENT HATCHER: We can't.

PN587

MR IZZO: Yes.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN588

VICE PRESIDENT HATCHER: All we can do is - if there is a possibility of an individual not a corporation being exposed to a civil penalty - warn the person and they can choose not to answer the question.

PN589

MR IZZO: Okay. I think that would be appropriate. If we're able to do that and then they can - it hasn't arisen yet, but perhaps we can give him the caution now.

PN590

VICE PRESIDENT HATCHER: All right.

PN591

Mr Pennington, it's Vice President Hatcher here?‑‑‑Yes.

PN592

Mr Harmer is going to ask you some questions, as I gather, which may touch upon whether businesses you have been involved with have previously lawfully applied with the applicable award?‑‑‑They have all - yes.

PN593

Now, it is possible - I'm not putting it any higher than that - that an answer you give may ultimately be used against you in proceedings before a court for a civil penalty to be imposed for breach of an award. A court may impose a civil penalty upon the employing corporation, but it also may impose penalties upon individuals who have been involved in the contravention. There exists what is known as a privilege against a civil penalty, which relevantly means that if you think there is a real risk in answering a question that you may expose yourself to a civil penalty, you won't be required to answer the question and you can simply decline to answer it. Do you sort of follow all of that?‑‑‑I do, yes.

PN594

Whether you choose to answer or not is up to you, but I'm just giving you that warning and giving you advance notice that if there is a question that you don't want to answer because it exposes you to that risk, then you can take that option?‑‑‑Okay. Thank you.

PN595

Are all the parties happy with that warning? Mr Harmer, are you happy with that?

PN596

MR HARMER: Yes, thank you.

PN597

VICE PRESIDENT HATCHER: Mr Izzo?

PN598

MR IZZO: Yes.

PN599

VICE PRESIDENT HATCHER: All right. Go ahead.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN600

MR HARMER: Mr Pennington, can I ask you in relation to each of the businesses that you operate at Dinner Plain and Mount Hotham, what award do you currently apply?‑‑‑We currently apply the HIGA (indistinct).

PN601

So that's Hospitality Industry? Correct?‑‑‑Yes, Hospitality Industry (General) Award.

PN602

Have you always applied that award to the two businesses?‑‑‑No, we have not.

PN603

Just keeping in mind what the Commission has just told you, can you inform the Commission as to what other awards you have applied say since 2010?‑‑‑Since 2010?

PN604

Yes, thanks?‑‑‑Sorry, since 2010?

PN605

Sorry, since 2010?‑‑‑Yes, no worries. The other award we applied was the Alpine Resorts Award.

PN606

Is it the case that you were applying that from 2010 on?‑‑‑It was actually from 2000 and - when our first - I can't remember the exact date, but within my statement (indistinct) incorporates some documents from (indistinct) at the time when I sought his advice to make sure (indistinct) that we're on track with it. We questioned him about that (indistinct) under that award, which he confirmed in relation to - he suggested that we - or actually inferred that we should be and we ran it with that award for, I think, maybe two years until 2014 and then he basically again advised us that, no, it wasn't, and that he had been taken to task over that and (indistinct) straight back to the HIGA.

PN607

It's the case, isn't it, that it was only from April 2013 at Dinner Plain that Dpsi General Pty Ltd applied the Alpine Resorts Award? Correct?‑‑‑Sorry, can you repeat that.

PN608

I apologise.

PN609

VICE PRESIDENT HATCHER: You might move that microphone a bit closer, Mr Harmer.

PN610

MR HARMER: Yes. Sorry, your Honour.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN611

It's the case, isn't it, that concerning your business at Dinner Plain, Dpsi General Pty Ltd applied the Alpine Resorts Award only from April 2013 on?‑‑‑I can't recollect the exact date, to be honest.

PN612

Well, it's the case, isn't it, that at Mount Hotham you had applied that Alpine Resorts Award since 2010. Correct?‑‑‑The Alpine Resorts Award was applied from (indistinct) in that correspondence that occurred in 2012.

PN613

VICE PRESIDENT HATCHER: So what were you applying before that correspondence?‑‑‑It wasn't - I'm not sure whether it was the HIGA or whatever (indistinct) one was. Yes, whatever the previous version was. It could have been HIGA. I'm not exactly sure, but it was the Hospitality (General) Award that we were applying prior to that.

PN614

All right. Thank you?‑‑‑Yes.

PN615

MR HARMER: Mr Pennington, I think this morning you were sent by email an annexure to Mr Girling's statement marked GG. Do you have that with you?‑‑‑I will just bring that up. Just give me one moment. I have that in front of me.

PN616

Do you see that is an application that your company, Dpsi General Pty Ltd, made in 2014 to vary the Alpine Resorts Award?‑‑‑Could you repeat that, sorry. There was a whole lot of rustling at the microphone.

PN617

I'm sorry. I apologise. You will see that the annexure marked GG is an application which Dpsi General Pty Ltd lodged in 2014 to vary the Alpine Resorts Award. Correct?‑‑‑That's correct.

PN618

That application was put forward on your instruction. Correct?‑‑‑Yes. Ian Gross, our solicitor at the time, put that forward on our direction.

PN619

The application itself and the instructions and arguments in support of it reflect your instructions at the time?‑‑‑They reflect our investigation as to what we thought was appropriate at that time and that document represents that.

PN620

You put on an affidavit at that time, didn't you, in support of that application? Correct?‑‑‑I did support that application.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN621

Sorry, you put on an affidavit in support of that application. Correct?‑‑‑I believe so. I don't have that in front of me.

PN622

I think in amongst that bundle of papers marked GG - - -?‑‑‑Yes.

PN623

If you go to the back of the bundle and move in, there is a series of affidavits from, I think, four business persons in support of that application and you're the first one of them. Can you just try and find that for me?‑‑‑Do you have a page reference for that?

PN624

Look, I apologise. There is some blanking out and I can't see a page reference number, but I'll just do a rough count. It seems to be - perhaps I'll just walk you back in. If you go to the end of the documents, there is a statement by a Mr Glen Docking, who is an operator at Falls Creek. Do you see that? It's the last document?‑‑‑Yes, I've got (indistinct) yes.

PN625

Then if you go to the one before that, there is an affidavit from Graeme Blair?‑‑‑That's correct. Graeme Blair from Mount Hotham.

PN626

Mount Hotham, yes. The one before that - - -?‑‑‑Alan Graham.

PN627

Alan Graham, yes. Then the one before that, I think is your affidavit. Do you have that?‑‑‑Yes, I found it.

PN628

If I just take you to paragraph 3 of that affidavit, you will see that you indicate there that since 2010 at Mount Hotham you applied the Alpine Resorts Award. Do you see that?‑‑‑I can see that.

PN629

You say that from April 2014 for Dinner Plain you applied the Alpine Resorts Award. Correct?‑‑‑That's what point 3 says.

PN630

Why was it that you were applying the Alpine Resorts Award to your operations at Mount Hotham and Dinner Plain?‑‑‑Excuse me a second. I'm just reading through that point again. I can't answer that.

PN631

Okay. Is it your understanding that at the time a large number of employers at Mount Hotham and Dinner Plain were applying that Alpine Resorts Award to their various operations? Correct?‑‑‑There was a number of establishments that were.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN632

It was attention from the Fair Work Ombudsman about the correct award to be applied that brought on the application that I've just taken you to in 2014. Correct?‑‑‑Correct.

PN633

Could I just take you back to your statement in these proceedings. At paragraph 16 - - -?‑‑‑Yes.

PN634

- - - you described Dinner Plain as a feeder to the Mount Hotham resort. Correct?‑‑‑That's correct.

PN635

By "feeder", you mean a town that accommodates a lot of persons during the winter that move from that town to use the resort. Correct?‑‑‑(Indistinct) predominantly use the Hotham resort because (indistinct) Dinner Plain itself.

PN636

Yes, okay. You also describe Mount Bogong as a feeder town to Falls Creek resort. Do you understand that?‑‑‑Yes. You can extend that further to Mount (indistinct) but (indistinct) close proximity, but it does accommodate people year round. There are (indistinct) options there to get up to Falls Creek.

PN637

The reason why you contend that Dinner Plain should be covered by the Alpine Resorts Award is because it's integrated as a feeder town with the Mount Hotham alpine resort. Correct?‑‑‑Can you repeat that.

PN638

I'm sorry. The reason why you say that the Alpine Resorts Award should apply to Dinner Plain is because that town is integrated as a feeder town with the Mount Hotham alpine resort. Correct?‑‑‑Yes.

PN639

You would say that the same logic applies to Bogong Village in relation to the Falls Creek resort. Correct?‑‑‑Not having intimate knowledge particularly (indistinct) would be a very similar operation.

PN640

You would say to a lesser degree Mount Beauty to Falls Creek. Correct?‑‑‑I would probably say much the same as Bright would be to Mount Hotham.

PN641

Correct?‑‑‑And Bright would be to Falls Creek (indistinct) to Falls Creek.

PN642

So there are degrees in these feeder towns, correct, in terms of the extent to which they provide accommodation and facilities that permit people to move up to the resorts and ski? Correct?‑‑‑Can you repeat that, please.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN643

I'm sorry. There are degrees to which you would say certain towns are feeder towns to the various resorts. Correct?‑‑‑That's correct (indistinct) I think the (indistinct) nature of Hotham and Dinner Plain is probably - is another example where really in Australia - or Victorian ski fields, for sure, their close proximity and the services that they offer and (indistinct) into a business, it is pretty much (indistinct) industries in that area (indistinct) to a lesser degree Bogong and Mount Beauty would really sort of have that same nature (indistinct) its own setup down there, hence, you know, come to Mount Beauty and stay and leave without even going to the resorts (indistinct) when we come to Dinner Plain. The majority (indistinct) skiing in Hotham or skiing (indistinct).

PN644

You would say the same in relation to Omeo versus Mount Hotham?‑‑‑No, I would not.

PN645

Okay. Thank you?‑‑‑Omeo is a little bit of a feeder, but, once again, people come (indistinct) Dinner Plain and Hotham. It's approximately about 11 kilometres and the bus routes that are provided join those places. Given that (indistinct) public transport between Bright at times (indistinct) certainly between Omeo and Hotham is that there is a - in winter there is an established fast route that links these places that makes it accessible so they become conjoined.

PN646

Similarly, you say in your statement that Jindabyne is a feeder to both Thredbo and Perisher. Correct?‑‑‑Sorry, can you say that again.

PN647

You say in your statement that Jindabyne is a feeder to both Thredbo and Perisher. Correct?‑‑‑Potentially. Not being intimate with it (indistinct) understand where Dinner Plain is, but I'm not intimate with those townships other than the geographical reference.

PN648

But you understand that Jindabyne is utilised as an accommodation base for persons who are going to feed into both Thredbo and Perisher resorts. Correct?‑‑‑Correct.

PN649

Are you familiar with the fact that both Berridale and Cooma would to lesser degrees feed persons from accommodation into those two resorts? Correct?‑‑‑No, I'm not familiar with that.

PN650

Okay. Thank you. Are you familiar with the fact that Mansfield plays a role as a feeder town to the Mount Bulla resort in Victoria?‑‑‑I would imagine it would provide accommodation services much like that Bright would to both Falls Creek and Hotham.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN651

Yes. Merrijig would play the same feeder town role to Mount Bulla. Correct?‑‑‑Repeat that, sorry.

PN652

I'm sorry. A town called Merrijig plays the same feeder town role to Mount Bulla. Correct?‑‑‑It may. I'm not privy to that information really.

PN653

The same with Myrtleford to Falls Creek. Correct?‑‑‑I doubt it very much. People come to Myrtleford for different reasons (indistinct) ski industries based out at Myrtleford (indistinct) Mount Hotham, but not particularly (indistinct)

PN654

You're familiar with the feeder town role that Marysville plays for Lake Mountain Alpine Resort?‑‑‑I'm not familiar.

PN655

Okay. Thank you. Would you say that Sponars Chalet plays a feeder role to the Perisher resort?‑‑‑I'm not familiar with that either.

PN656

Okay. Thank you. How about (indistinct) to the Corin Forest Mountain Resort?‑‑‑Off the top of my head - I would have to (indistinct) to be able to really delve into this, but as (indistinct) knowledge, no.

PN657

Okay?‑‑‑I'm not familiar with it to be able to say yes or no.

PN658

Okay. Finally, Adaminaby as a feeder to resorts in New South Wales. Are you familiar with its role?‑‑‑Can you repeat that.

PN659

Adaminaby as a feeder town to resorts in New South Wales. Do you have any familiarity with its role?‑‑‑Once again, I'd have to refer to (indistinct).

PN660

Thank you. Is it the case that Dinner Plain is approximately 11 kilometres from the Mount Hotham resort? Correct?‑‑‑That's (indistinct) kilometres, yes.

PN661

Is it your position that all the businesses at Dinner Plain should be covered by the Alpine Resorts Award?‑‑‑I think for no competitive advantage and for a level playing field (indistinct) for us is that I would hope that they would in a small fashion, given that they would be covered by a similar award.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN662

But your business at Dinner Plain doesn't compete within Dinner Plain with the Mount Hotham alpine resort, does it?‑‑‑We have accommodation, so by direct comparison that's the main thing that we do compete with. There is accommodation factors in there which obviously is front of house, back of house, cleaners, maintenance, all that sort of thing, but Mount Hotham, their company also - in Hotham as opposed to Dinner Plain, they do actually have chefs and wait staff; but in Dinner Plain it's mainly about the accommodation as (indistinct).

PN663

All right. I think you were also sent last Friday a copy of the map of the Dinner Plain Alpine Village. Do you have that with you?‑‑‑Can you just give me a second.

PN664

Thank you. I might just, during the break, hand copies to the Bench?‑‑‑(Indistinct).

PN665

Sorry, Mr Pennington, do you have a copy of that Dinner Plain Alpine Village map?‑‑‑I'm just about to bring it up (indistinct).

PN666

Sorry?‑‑‑Yes, I do now.

PN667

Thank you. There is a key that indicates there is a large number of premises at Dinner Plain. Are you able to indicate, are each of those locations separate employers or are they part of accommodation groups? How is Dinner Plain set up?‑‑‑Okay (indistinct) that you'll find at most sort of commercial operations. It sort of puts a little bit of a grey sort of colour code across it, so (indistinct) what is commercial and what's not. The rest are residential. Within that residential, over the last two years the Ramada or Wyndham group has now put up close to 40‑something houses. They operate them as one accommodation (indistinct) service - - -

PN668

Could I just stop you there. Sorry to interrupt. That's the Ramada Hotel group has set up a large Ramada resort at Dinner Plain. Correct?‑‑‑Yes, that's correct.

PN669

Thank you. Sorry, I interrupted you?‑‑‑Most of these other houses, really they're all individually owned, as is ours. They're all on freehold. There is a little bit of a ski run you can see down to the far right there for the Dinner Plain - a little T‑bar lift at the bottom of that southern end car park down to the bottom. They are all industrial estates which is (indistinct) and that sort of stuff, you know, a council estate.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN670

There is a Peppers Resort at Dinner Plain, isn't there?‑‑‑There was. Peppers was bought by the Ramada group or Wyndham (indistinct) and that no longer exists. So when Ramada came in, they bought Peppers and then they (indistinct) early plan to grow the business and they acquired some 40-odd houses (indistinct).

PN671

Thank you. There are approximately eight food and beverage outlets at Dinner Plain. Correct?‑‑‑If they're all operating at the same time, yes. A lot of them are closed. Two have actually closed down (indistinct) so there is probably only really maybe four main players.

PN672

There are a number of retail outlets at Dinner Plain?‑‑‑There is. There is a community post office and, within that same building, a real estate agent. There's a couple of there. There is also a supermarket or convenience store. There are a couple of (indistinct) there as well, so you've got ski hire, ski sales and snow apparel. The lift company operate the (indistinct) premises where they do exactly the same; ski hire, ticketing and ski apparel and (indistinct).

PN673

I'm not asking you to reveal any details, but it's true, is it not, that you have operated profitably over the years at your two operations at Mount Hotham and Dinner Plain?‑‑‑That's a funny one (indistinct) we have suffered quite a few losses and a few (indistinct) have actually had to re‑invest for (indistinct) buildings and things that (indistinct) we had, I guess, on paper probably generated a profit, but the physicality of that (indistinct).

PN674

Leave aside those insurance incidents. You run at an operational profit at the businesses each year?‑‑‑At the moment we do. At Hotham (indistinct) 17 years (indistinct) to go and actually re‑invest. At Dinner Plain (indistinct) Hotham last year after four years and was carried through by the (indistinct).

PN675

If successful in this application, the effect will be to increase your profit margin. Correct?‑‑‑If we're successful in this application, one of those results obviously (indistinct) it would be obviously more money on the balance sheet (indistinct).

PN676

You referred earlier to the annexure to your statement in this proceeding at SP6, the email from Mr Dettering(?) of the Fair Work Ombudsman. Do you have that before you?‑‑‑Just one moment. I'll bring it up (indistinct) real slow. Give me a few seconds. It's still loading the page.

PN677

It's the second to last page of your statement, the annexures?‑‑‑Yes. It's still trying to load, for some reason. While that's still loading, I'm privy with it. Okay, it won't load up on my page at this stage.

PN678

I apologise for that. Perhaps we will just give it some time. Could I take you to the other - - -?‑‑‑Yes, if you want to move to something else, we can get back to that again when it turns up, if you like.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN679

Thanks so much?‑‑‑It's a poor Internet connection.

PN680

Okay. Apologies for the inconvenience?‑‑‑None whatsoever.

PN681

There was another document sent to you think morning which is marked HH. Annexure HH to Mr Girling's statement. Do you have that with you?‑‑‑Yes.

PN682

You'll see that's a press article, dated 20 August 2014, headed "Don't leave snowfields workers out in the cold". Do you see that?‑‑‑I've read through that, yes

PN683

At the time you were a member of the Mount Hotham Chamber of Commerce. Correct?‑‑‑At that time?

PN684

Yes?‑‑‑What was the date on that (indistinct).

PN685

August 2014?‑‑‑2014. Yes. We would have been probably a financial member then, yes.

PN686

The other applicants to that attempt to vary the Alpine Resorts Award in 2014 were members of the Falls Creek Chamber of Commerce. Correct?‑‑‑Some, but I can't comment. Often the Chambers of Commerce - actually the people that are involved with it are actually just to give weight to a lot of things, so I can't comment on who would have been a financial member or who wasn't.

PN687

The article reports extensive noncompliance across the industry found by the Fair Work Ombudsman. Are you able to give the Commission your understanding and your firsthand knowledge of the extent of the noncompliance across the industry?‑‑‑Well, I - - -

PN688

MR IZZO: Sorry, Mr Pennington, if you could just pause. I have an objection, your Honour. I think Mr Harmer can ask Mr Pennington about his business and his knowledge of the industry. I think when we start asking about what other employers are doing, again we start to move into the realm of opinion, speculation and possibly hearsay. I'm not too sure that he is in a very good position to give that evidence, so I just wonder what the utility of it is.

PN689

MR HARMER: I won't press the question, may it please.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN690

Mr Pennington, are you now in a position to go back to that annexure SP6 to your statement in these proceedings?‑‑‑I'll just try and bring it up again. Hang on one sec.

PN691

Mr Pennington, would you like me to move to another area and just see if that comes through shortly?‑‑‑It is taking forever to load up (indistinct).

PN692

I'm sorry about that. Can I perhaps just ask you something about Mount Hotham alpine resort. I've asked you some questions about Dinner Plain?‑‑‑Sure.

PN693

It's the case, isn't it, there is a medical centre at the Mount Hotham alpine resort?‑‑‑Is there a medical centre at Mount Hotham resort? Yes.

PN694

And a snow clearing business?‑‑‑I'm not sure about the snow clearing. There is snow clearing as part of the resort management board and also a private a contractor called (indistinct) who do the roads.

PN695

Thank you. There is a large number of food and beverage outlets. Correct?‑‑‑Yes, that's right.

PN696

Three supermarket outlets?‑‑‑Supermarket outlets, yes.

PN697

Yes. There is an over snow transport business which is privately operated. Correct?‑‑‑There is an over snow business, yes.

PN698

There are some six accommodation and booking agents that operate from that resort. Correct?‑‑‑Yes. Some of those are online, as well, so I wouldn't be quite aware of how many there really are, but that sounds about right.

PN699

Thank you?‑‑‑(Indistinct) what used to be.

PN700

There is also a snow play business. Correct?‑‑‑Yes, there is a fellow that operates that.

PN701

Does that look after children by way of child care?‑‑‑Can you repeat the question.

*** STEPHEN GARY PENNINGTON XXN MR HARMER

PN702

Sorry. Can you just explain what the snow play business in Mount Hotham is, please?‑‑‑The snow play business in Mount Hotham is run by a fellow who also runs it down in Dinner Plain, whereby it just provides a snow area where kids can do a bit of tobogganing of sort of small - you know, scooter rides and bits and pieces. Make sort of almost like (indistinct) I guess in the snow away from the (indistinct) so that they don't interfere with that.

PN703

At both Dinner Plain and Mount Hotham it's privately operated, separate to the ski lift company. Correct?‑‑‑That's correct.

PN704

Has your SP6 now come up in your statement?‑‑‑Not quite yet.

PN705

That's all right. I might just ask you one question then rather than - - -?‑‑‑If you wanted to ask me, I'm privy to what is in that document. If I feel that it's not appropriate, I won't answer.

PN706

Okay?‑‑‑If you wanted to ask me the questions - - -

PN707

Sure?‑‑‑(Indistinct) then I could answer to the best of my recollection.

PN708

All right. On 28 April 2012, you sent an email to Mr Dettering which commenced:

PN709

Could you please advise if you have moved forward with the Alpine Resorts Award being adopted for businesses at Mount Hotham.

PN710

Do you recall that?‑‑‑I do.

PN711

I just wanted to ask you, what did you mean by the term "being adopted"?‑‑‑Whether it was applicable.

PN712

I see. Going back again to your earlier evidence, you had already been applying the award for some two years at that time, the Alpine Resorts Award, at Mount Hotham. Correct?‑‑‑I can't answer that.

PN713

Okay. Thank you. If it please the Commission, no further questions.

CROSS-EXAMINATION BY MR BRUNO [2.33 PM]

*** STEPHEN GARY PENNINGTON XXN MR BRUNO

PN714

MR BRUNO: Mr Pennington, I'm going to be asking you some questions on behalf of the SDA?‑‑‑Yes.

PN715

Can you hear me properly?‑‑‑I can perfectly.

PN716

Can I ask you about the two main businesses of Dpsi. It's the case that the general store operates all year round?‑‑‑That's correct.

PN717

But Hotel High Plains, Dpsi doesn't run that hotel in the ski season. Is that right?‑‑‑No. It's a mixed lease. In the summer we run both accommodation (indistinct) full hotel complex. We run the whole complex in winter and winter periods are pretty much from the end of May to around 17 October. The Mount Hotham company actually subleases the rooms from our freehold owner. The only accommodation we have there, we provide to our staff and to other staff in the rooms we have allocated to us, but they take on the majority of it and we just run it in winter. No accommodation other than just staff accommodation that we do (indistinct) rooms that we have available. We run the restaurant and bar in winter.

PN718

Okay. But in terms of the accommodation in winter, it's fair to say then that the hotel is not in direct competition with - let me get the name right, sorry - the Mount Hotham Skiing Co Pty Ltd, the accommodation that they provide?‑‑‑Look, we are still in the business of providing (indistinct) staff accommodation but we only have a small allocation of rooms still left with us to do that. That (indistinct) by the freeholder and (indistinct) needed extra staff, we would put staff in there (indistinct) just other staff through the resort who may need it. Some may work with the companies - like they work for the Ramada, some may work for (indistinct) so we always have at least (indistinct) as a major business concern we don't make too much (indistinct) from that in the winter (indistinct) total hotel room price.

PN719

Can I ask you, Mr Pennington - if I get you to focus on the general store?‑‑‑Yes.

PN720

In your statement you have said that 10 of your staff work all year round at the general store?‑‑‑Yes. That sort of number is growing since we put this together (indistinct) summer.

PN721

It's the case that in winter - in your statement you have said 38, but I think in your evidence earlier that number has increased to either 40 or 45. Did I hear that right?‑‑‑That's correct. We're looking - in the original letter that was provided at the time it was true and correct to - but (indistinct) summer it would have been around 38 (indistinct) now at 11 to 12 (indistinct) for winter.

*** STEPHEN GARY PENNINGTON XXN MR BRUNO

PN722

Okay. I want you to focus on the 11 to 12 employees that are all year round. Are they casual, permanent or a mix of both?‑‑‑A mix of both. Probably at the moment (indistinct) 60 to 70 per cent full‑time and the majority would be casuals.

PN723

With those particular employees, do you know where they live? Do they live locally?‑‑‑They all live on the mountain. Some live in Dinner Plain. Some in fact come from our own venue in Dinner Plain and retired down there. It's in between both. So, yes, they live between Dinner Plain - some live at (indistinct) which is halfway between Dinner Plain and (indistinct) but no further than that, and the rest at Hotham itself.

PN724

Would you accept - and this might be an obvious question, but I'll ask it, anyway - that the 11 or 12 people you employ all year round aren't there to work for you because of the skiing?‑‑‑Are there to work for us because of the skiing?

PN725

No, no, they're not there to work for you because of the skiing?‑‑‑Okay. The year round staff have a mixture of reasons for wanting to be up there. We're a bit of a (indistinct) so we're quite intimate with the knowledge (indistinct) keep them happy during the greener months, but a lot of them are up there because they're just sick of the rat race. They just sort of choose to be up there to be amongst nature and have a bit of solace. In winter obviously that changes and their focus is all about that, but in summer it's a bit more about (indistinct).

PN726

Would you accept that for the employees that are working in the summer, they are free to do whatever they want on their weekends if they're not working for you?‑‑‑Yes, look, they're free to do whatever they want. Unfortunately, once again, the predominant opportunity for working is weekends. We're a bike‑riding mecca and it turns the ski resort into a bike (indistinct) it's pretty exceptional at the moment (indistinct) weekends is where the shifts are still.

PN727

Can I ask - - -?‑‑‑And they're not - - -

PN728

Sorry to interrupt?‑‑‑Yes.

PN729

Had you finished? I didn't mean to interrupt you?‑‑‑Yes - no, I'm done.

PN730

VICE PRESIDENT HATCHER: Sorry, Mr Bruno, I'm not sure where we landed with the skiing. That is, were they there to ski or - - -

*** STEPHEN GARY PENNINGTON XXN MR BRUNO

PN731

MR BRUNO: Well, my understanding of the evidence that was given was that not in terms of - I think the evidence was that they have left the rat race, so I had understood that - - -

PN732

VICE PRESIDENT HATCHER: Yes, I got that part.

PN733

MR BRUNO: Yes.

PN734

VICE PRESIDENT HATCHER: Mr Pennington, of the 11 to 12 all year round, do some or all of them actually ski in the winter?‑‑‑All of them ski in the winter.

PN735

All of them.

PN736

MR BRUNO: In terms of the general store, is it the case that the weekends are the busiest time in the winter period for the general store?‑‑‑Yes. There's only one other day that gets busier for us and that's usually on a Monday, and that's only because of the revenue (indistinct) fact that the staff (indistinct) entertainment venue, which you're talking about the (indistinct) people through the door (indistinct) the weekend is by far - Friday, Saturday, they're pretty much (indistinct).

PN737

So would it be the case that the revenue from sales at the store would be the highest on the weekends?‑‑‑That's correct. Without a doubt we do more on Saturday than we do sometimes in the rest of the week.

PN738

At Mount Hotham it can become busy at other times of the year apart from winter. That's the case, isn't it?‑‑‑That's correct.

PN739

In your statement you have listed some of the busier times. So there is a music festival in February?‑‑‑That's correct

PN740

There is a four‑wheel drive event in March?‑‑‑Yes.

PN741

Then people also come up for conferences?‑‑‑Conference and Easter is probably the next busiest period by far.

PN742

I think weddings is something you have mentioned, as well?‑‑‑Yes. We have (indistinct) and it's just (indistinct).

*** STEPHEN GARY PENNINGTON XXN MR BRUNO

PN743

Is it the case that Mount Hotham is also becoming more popular with other activities such as mountain biking?‑‑‑Yes.

PN744

Is that happening over the summer?‑‑‑It is happening over the summer. To a lesser degree mountain biking, simply because Falls Creek is doing such a good job of it and Mount Beauty with the advent of the Falls Creek to Mount Hotham walk. Bushwalking has had a resurgence and (indistinct) to encourage that (indistinct) so that's the next stage of (indistinct) tourism.

PN745

Your general store, does it reap the rewards of that tourism?‑‑‑Does it reap the rewards?

PN746

Yes. I should probably - - -?‑‑‑(Indistinct).

PN747

I can put the question a bit clearer. Do you experience an increase in the number of customers that come to the store when, for example, people are coming for the music festival or the four-wheel drive or the hiking, et cetera?‑‑‑Sure. To put it in perspective (indistinct) and so we pretty much - we don't actually create it. We actually (indistinct) the whole resort benefits from. Four-wheel drive, which is a resort management board initiative, it is all based around us because (indistinct) capable of dealing with those vast numbers in summer. The only way (indistinct) as well.

PN748

Can I ask you some questions about employee preferences. Specifically I'm referring to those paragraphs of your statement that you were taken to in your evidence‑in‑chief. It's paragraphs 19 to 23. You provided some further elaboration on the views that you have expressed there. In your statement you provide the view that you have observed your staff preference is to work either on weekends or at night so they can engage in snow sports during the week days. Again this is an obvious question, but that's necessarily limited to the ski season. Would you accept as a general ;proposition that there is more to your staff members in terms of their interests than just enjoying snow sports?‑‑‑Yes. There is more to their interests, yes.

*** STEPHEN GARY PENNINGTON XXN MR BRUNO

PN749

You wouldn't dispute, would you, that there are a multitude of reasons why a staff member might prefer to work at night or during the weekends aside from the fact that it might be preferable from their perspective to ski on a week day when the slopes are less busy?‑‑‑Look, there is a multitude of reasons. That could be anything from - you know, there are a lot of people that just don't want to, you know, work certain shifts and certain times. They come to us with what their preferences are. We always ask when we employ someone how many hours they wish to work, what would be a regular week or day for them, so that we put them in the best possible spot. We invest in those people.

PN750

VICE PRESIDENT HATCHER: Is it possible that some people want to work during hours which attract penalty rates?‑‑‑Absolutely. Some people want to work only in those slots. More than that also is that they know that some of those nights are leading into the weekend. The weekend is when - you know, after two hours you're not going to be possibly sent home early if it's quiet or you might be sent home after only four or five hours as per your roster. Or there might be an opportunity to actually get further hours because you might be under the pump. They have the break and then they come back and do the three hours at night.

PN751

MR BRUNO: In terms of the staff that you employ in the winter season, we'll go via the last ski season, so where there's around, I think it was 55 staff members. It's not the case that those 55 were all working on the weekends; you'd have a surplus, I'd imagine. Is that right?‑‑‑Yes, well we'd have to roster days off and that's for sure. We try and - I guess, to put it into perspective, we have a lot of people working at one time. They don't really want to work for us from 7.30 in the morning through till nearly 2 am in the morning. We employ close to eight to ten in that kitchen at one time and in the three days prior to that (indistinct). So we could have up to 12 people coming through the kitchen in one day and then in the quiet you're getting the bar staff turnover as well. You're right, not every one of those is working on the weekend.

PN752

They're free to do - and it might be obvious again, absolutely whatever they want on the weekend?‑‑‑Look, by request, some people work roster to roster. They fit within the scope of what we can do about them first, the choice is up to them.

PN753

Can I ask you some questions about the confusion which you feel that you experienced about the Alpine Resorts Award applying to your business?‑‑‑Yes.

PN754

Can I take you back to before you went to the Fair Work Ombudsman to seek some advice around that issue. Have you picked up the Alpine Resorts Award yourself to read it?‑‑‑Only certain parts of it.

PN755

I'll read out a particular clause to you and I'll ask you a question. Clause 4.1 says:

PN756

This industry award covers employers throughout Australia who operate an alpine resort.

PN757

Can you remember reading that particular clause?‑‑‑Yes, I can.

*** STEPHEN GARY PENNINGTON XXN MR BRUNO

PN758

Do you also remember reading the definition in clause 3.1 of Alpine Resort?

PN759

MR SCOTT: Mr Bruno, how is this relevant to our task? Because obviously, some people had a mistaken view. Does it matter to us why they formed that view?

PN760

MR BRUNO: Perhaps not, and I won't continue with that line of questioning. That was my last question.

PN761

VICE PRESIDENT HATCHER: Thank you, Mr Crabb, do you have any questions?

PN762

MR CRABB: No further questions.

PN763

VICE PRESIDENT HATCHER: Any re-examination Mr Scott?

PN764

MR SCOTT: Yes, thank you.

RE-EXAMINATION BY MR SCOTT [2.47 PM]

PN765

Mr Pennington, Kyle Scott here again. Just a couple of final questions. I believe earlier, you were taken to a map of the Dinner Plain Alpine Village. Have you got that in front of you?‑‑‑Give me a second. And the question is?

PN766

Yes, you indicated earlier during your evidence that there was a ski run and a T-bar lift within Dinner Plain. Are you able to indicate or describe where on the map the T-bar lift is located?‑‑‑Sure, if you look underneath the compass there, straight down you'll see a car park above the (indistinct). There's a shop and BBQ and covered toilets area. That's where the snow play area operates and there's a T-bar run there.

PN767

Sorry, who runs that T-bar?‑‑‑The T-bar is owned and operated by Merlin on Mt Hotham.

*** STEPHEN GARY PENNINGTON RXN MR SCOTT

PN768

Where does it go?‑‑‑Exactly where it shows you, it pretty much just runs past that small hill and just comes down over a couple of small rollers. It's the very very beginners site that people take who aren't getting up to Hotham, because often people just come and holiday there and hang out in the plain. Apart from it being an option too, when it's pretty bad conditions at Hotham. It doesn't go anywhere much, it just goes from end to end and just a simple T-bar operation.

PN769

The Scrubbers End overnight car park, is that at the bottom of the ski run, or the top?‑‑‑At the bottom. The elevation is much more to the Alpine School.

PN770

Mt Hotham organises that, does it?‑‑‑Runs the lift, yes.

PN771

Mr Pennington, you indicated just a moment ago, that the lift was owned and operated by Merlin. Can you explain the relationship between Merlin and Mt Hotham Lift Company?‑‑‑I believe, without knowing the correct relationship in a proprietary sense, but Merlin owns both Falls Creek and Mt Hotham and they're international concerns. They also - Matt Walkam's(?) company bought a whole (indistinct) aquarium through Victoria as well, including the Melbourne Aquarium as part of their operations. But relevant to us, as far as I know, they own and operate both lifts.

PN772

You referred a moment ago as well to the Alpine School, which seems to be at the top of the ski run. Who operates that school?‑‑‑That's operated under the Victorian Education Department. Yes, it's not part of this.

PN773

That's all, thanks very much, Mr Pennington?‑‑‑You're welcome.

PN774

VICE PRESIDENT HATCHER: Thank you very much Mr Pennington, you're excused which means you can simply hang up the phone.

<THE WITNESS WITHDREW [2.52 PM]

PN775

VICE PRESIDENT HATCHER: Mr Harmer, do you want us to mark the Dinner Plain Alpine Village map?

PN776

MR HARMER: Yes, and subject to any objection, I might just tender the document.

PN777

VICE PRESIDENT HATCHER: Yes, all right. No objection, I'll mark that exhibit E.

EXHIBIT #E DINNER PLAIN ALPINE VILLAGE MAP

PN778

MR HARMER: Thank you.

*** STEPHEN GARY PENNINGTON RXN MR SCOTT

PN779

MR IZZO: Can I just clarify, your Honour, what are we marking?

PN780

VICE PRESIDENT HATCHER: The one page map.

PN781

MR IZZO: Yes.

PN782

VICE PRESIDENT HATCHER: Mr Girling, can call him in?

PN783

MR HARMER: Your Honour, I do note the time. Can I just ask a question? I'm not sure how long we'll be with Mr Girling. It could be longer than an hour, and I just wanted to canvass whether the Commission's comfortable with that. I didn't necessarily want Mr Girling to be half under cross-examination. We're in the Commission's hands.

PN784

VICE PRESIDENT HATCHER: Because we have a meeting at four, we'll have to finish about ten to four. But Mr Girling can come back tomorrow, can't he - well, he will be back tomorrow, won't he?

PN785

MR HARMER: He's here every day, your Honour. He's got a marking on Thursday morning, which should accommodate his time. I mean, in our respectful submission, he's our instructor, we would prefer him not to go over and across. I appreciate it's an hour if the Commission pleases, but I don't think we're going to be pressed by the cross-examinations going so far.

PN786

VICE PRESIDENT HATCHER: I think we'll get on with it. Let's call him.

PN787

MR HARMER: Thank you.

PN788

THE ASSOCIATE: Could you please state your full name and address.

PN789

MR GIRLING: Gavin Alfred Girling (address supplied).

<GAVIN ALFRED GIRLING, SWORN [2.53 PM]

EXAMINATION-IN-CHIEF BY MR HARMER [2.53 PM]

*** GAVIN ALFRED GIRLING XN MR HARMER

PN790

MR HARMER: Mr Girling, have you for the purposes of these proceedings, prepared a statement?‑‑‑No. Do I have a statement? No. Sorry, in terms of the statement and the affidavit, yes, sorry.

PN791

I take it you don't have a copy with you?‑‑‑I do.

PN792

VICE PRESIDENT HATCHER: It doesn't appear to have the annexures, Mr Harmer.

PN793

MR HARMER: Thank you. I might just hand you a copy of the annexures to your statement, if that's all right. You've prepared a statement that's been dated and signed on 21 December 2016, is that correct?‑‑‑That's correct.

PN794

It has two volumes of annexures to it, correct?‑‑‑That's correct.

PN795

Is that statement true and correct in every respect?‑‑‑Yes, it is.

PN796

Do you have any alterations you seek to make to it today?‑‑‑No, I do not.

PN797

If the Commission please, could I seek to tender that statement, subject to there has been some agreement on objections, as I understand it.

PN798

VICE PRESIDENT HATCHER: Is anything to be struck out?

PN799

MR HARMER: Yes, I think by agreement, perhaps Mr Izzo, I'll hand it to you.

PN800

MR IZZO: There certainly are some objections, your Honour.

PN801

VICE PRESIDENT HATCHER: First of all, what's agreed?

PN802

MR IZZO: I think the only matter that relates to agreement is there's a sentence - it's paragraph 2.7 of the statement. The last line of 2.7 says:

PN803

To the extent that these submissions contain factual scenarios, I confirm that these are accurate.

*** GAVIN ALFRED GIRLING XN MR HARMER

PN804

That's a reference to submissions that are attached, A, B, C, D, E, F, G, H, I. We had objected to that and I understand that the ASAA are willing not to press that on the basis that there were a couple of matters in those annexures that they specifically wanted to ask the additional questions about.

PN805

VICE PRESIDENT HATCHER: All right, Mr Harmer?

PN806

MR HARMER: Yes, your Honour, we undertook overnight and that objection only came up over the weekend, and we undertook to compile a schedule of materials on which Mr Girling would seek to rely from the statement material. We haven't been in a position to supply that yet, so next time Mr Girling is in the box we'll try and supply that material and lead him through it. That's one thing that's not been able to be attended to.

PN807

VICE PRESIDENT HATCHER: Shall we strike the sentence?

PN808

MR HARMER: For now, thank you, yes.

PN809

VICE PRESIDENT HATCHER: We'll strike out the last sentence of paragraph 2.7. Any other objections?

PN810

MR IZZO: There are, your Honour. I'm just finding my piece of paper which I had. Apologies, I just had it.

PN811

MR HARMER: Perhaps I might assist. As I understand it, there's some four additional categories of objections and in relation to all of them, it's our position that cross-examination and submissions as to weight, should suffice. To the extent they're pressed though, we don't seek to enter into argument about any of them, and take up time. If Mr Izzo seeks to press those objections, I'm happy for the relevant material to be extricated and we can move forward.

PN812

VICE PRESIDENT HATCHER: All right, well tell us what it is.

PN813

MR IZZO: We do press that the first paragraph is 3.3. We only object to that paragraph so far as it relates to resorts other than Perisher. It talks about all the resorts.

PN814

VICE PRESIDENT HATCHER: I'm rewriting it; is it objectionable or not? Whether it's right or wrong, is another thing. Why is it objectionable?

*** GAVIN ALFRED GIRLING XN MR HARMER

PN815

MR IZZO: Why? Because it expresses an opinion about the operations of other resorts to which we say Mr Girling does not have direct knowledge.

PN816

VICE PRESIDENT HATCHER: Right, do we strike that out Mr Harmer?

PN817

MR HARMER: Our position is this. Mr Girling, as he's deposed at 2.6, has taken on a role in relation to all the resorts across the ASAA, so in our respectful view, he is so qualified, but I don't press it any higher than that. If the Tribunal pleases.

PN818

VICE PRESIDENT HATCHER: I'll strike out paragraph 3.3.

PN819

MR IZZO: The next paragraph is 4.6. It's essentially a conclusion about a decision of another Tribunal.

PN820

MR HARMER: We don't press it. The decision is attached.

PN821

VICE PRESIDENT HATCHER: All right, strike out 4.6. Is it the same with 4.7?

PN822

MR IZZO: That's correct.

PN823

VICE PRESIDENT HATCHER: We'll strike that out.

PN824

MR IZZO: And 5.13, the second sentence beginning 'The AIRC made a statement'.

PN825

VICE PRESIDENT HATCHER: Yes, we'll strike that one out.

PN826

MR HARMER: Yes, thank you.

PN827

VICE PRESIDENT HATCHER: We'll strike out the second sentence of paragraph 5.13.

PN828

MR IZZO: They were the objections.

*** GAVIN ALFRED GIRLING XN MR HARMER

PN829

VICE PRESIDENT HATCHER: With the modifications noted, I'll mark the statement of Gavin Alfred Girling dated 21 December 2016 as exhibit F.

EXHIBIT #F WITNESS STATEMENT OF GAVIN ALFRED GIRLING DATED 21/12/2016

PN830

MR HARMER: If it please the Tribunal.

PN831

VICE PRESIDENT HATCHER: Is there any further examination in chief?

PN832

MR HARMER: Yes, thank you.

PN833

Mr Girling, you were present in the Tribunal this morning when there were some questions put to Mr Izzo about the Perisher Chamber of Commerce, do you recall that?‑‑‑I do.

PN834

Do you have any understanding of the attitude of the Perisher Chamber of Commerce to these proceedings?‑‑‑I do.

PN835

What is their position?‑‑‑They originally were part of the process, but after meeting with them - - -

PN836

VICE PRESIDENT HATCHER: What do you mean part of the process?‑‑‑They were attached to the application, originally.

PN837

Supporting it all?‑‑‑Absolutely. We spoke to the Chamber, as a member of the Chamber about our views on the application and subsequent to that, they withdrew.

PN838

MR HARMER: What was the reason for that withdrawal?‑‑‑They didn't - I guess they went through the process of why we thought that it didn't apply and they agreed with those outcomes and they didn't utility in continuing with the application.

PN839

Are you able to advise any further than that as to the rationale for the Chamber changing their position?‑‑‑No, I can't.

PN840

How many businesses are there at Perisher, approximately?‑‑‑Businesses themselves, outside of lodgings, around 60 businesses.

*** GAVIN ALFRED GIRLING XN MR HARMER

PN841

And if you include lodgings?‑‑‑Lodgings are a mixture of club and commercial lodges as we saw during the inspection process, but it would be on or around the 140 mark.

PN842

Are you familiar with a business at Perisher called Air Kiosk?‑‑‑Yes, I am.

PN843

Have you had cause through the Perisher Resort to measure the distance from the post office at Perisher to Air Kiosk?‑‑‑We certainly reviewed it in context of the application made, yes.

PN844

What was the outcome in relation to Air Kiosk?‑‑‑From the measurements we could make, it was just outside the two kilometre radius proposed.

PN845

When you say just outside, how many metres?‑‑‑Within 150 metres.

PN846

What's the nature of the Air Kiosk business at Perisher?‑‑‑It's a food and beverage outlet that's reliant on lift operations.

PN847

How is it controlled or owned?‑‑‑It's privately owned.

PN848

VICE PRESIDENT HATCHER: When you say it's reliant on lift operations, what do you mean by that?‑‑‑During the winter period, the only way you could really get to Air Kiosk, would be via skiing or boarding.

PN849

Thank you. Yes.

PN850

MR HARMER: Are you familiar with the operation of the Sponars Lodge?‑‑‑Yes, I am.

PN851

VICE PRESIDENT HATCHER: What lodge?

PN852

MR HARMER: Sponars. Can you just inform the Tribunal what sort of operation that is?‑‑‑It's accommodation, lodging, private lodge with food and beverage facilities.

PN853

Are you familiar with the approximate distance of that lodge from the Perisher Resort?‑‑‑I believe it's around seven kilometres from the resort.

*** GAVIN ALFRED GIRLING XN MR HARMER

PN854

Are you familiar with its operations during winter and summer?‑‑‑It only operates during the winter period.

PN855

Are you familiar with the Ski Rider Hotel?

PN856

VICE PRESIDENT HATCHER: How do you access Sponars Lodge?‑‑‑It's on the Kosciuszko Road up to Perisher. You may have noticed it on the inspection, your Honour. It has the lake down the bottom there as well.

PN857

Yes.

PN858

MR HARMER: Are you familiar with the Ski Rider Hotel?‑‑‑Yes, I am.

PN859

Are you aware of what's the approximate distance of that operation from Perisher?‑‑‑It would be around 12 to 15 kilometres from the resort.

PN860

Again, are you familiar with its summer and winter operations?‑‑‑Winter operations it's a commercial lodging, food and beverage, hire outlet. During summer it's not open.

PN861

To what extent is its operations, to the extent you're aware, dependent upon the operation of the Perisher Resort?‑‑‑It would be entirely based on the winter operations of Perisher.

PN862

VICE PRESIDENT HATCHER: How far is Jindabyne from Perisher?‑‑‑About 30 to 35 kilometres.

PN863

MR HARMER: Mr Girling, you provided your statement in December 2016, correct?‑‑‑That's correct.

PN864

Are you able to advise the Tribunal, as to the nature of operations at the start, the commencing months of the 2017 season, so post-dating your statement?‑‑‑Sure, 2017 commenced with an early opening, with early natural snowfall, but then no follow-up natural snow fall, predominantly through June and July. We were on snow making, essentially during those two months.

*** GAVIN ALFRED GIRLING XN MR HARMER

PN865

How would you describe that start of the season as a matter of trend in the industry?‑‑‑Unfortunately it's a trend I think we've seen over the last three years in terms of no significant natural snow fall during June/July. The latter part of July we have seen some snow fall in the two years prior and then solid snow fall throughout August and September.

PN866

If it please the Tribunal; nothing further in chief.

PN867

VICE PRESIDENT HATCHER: Mr Izzo.

CROSS-EXAMINATION BY MR IZZO [3.07 PM]

PN868

MR IZZO: Mr Girling, I understand Perisher owns the ski rental businesses, is that right?‑‑‑That's correct.

PN869

They're operated at the base of the resort?‑‑‑That's one of the locations, that's correct.

PN870

That's in the Perisher Centre, is it?‑‑‑On the lower level of the Perisher Centre, yes.

PN871

Is there any other ski rental businesses at the mountain?‑‑‑At Perisher?

PN872

At Perisher, yes?‑‑‑There would be other ski rentals at Perisher, yes.

PN873

In terms of the ski rental market at Perisher Mountain, if we can call it a market for renting Ski gear, would you accept that Perisher has at least 50 per cent of the ski rental market on snow?‑‑‑I wouldn't reliably - to ascertain that. I'm not sure what the market is overall. We haven't - it's never been measured to my knowledge.

PN874

I apologise, and perhaps I can clarify. When I say market, I suppose I should say - in terms of rental sales, do you think that Perisher would rent approximately half or more of the skis getting rented out, or half the boards getting rented out, half the ski equipment getting rented out on a daily basis on the mountain? Or you're saying you don't know the answer to that question?‑‑‑It would be a mixture of two things and I'm trying not to make it overly complicated, but on the mountain in any given day there would be ski hire equipment from Perisher outlets. Some from the Perisher actual hire that we saw during the inspection process. But there would be hire equipment on the mountain from Sydney, Cooma, Jindabyne - all those areas have hire equipment as well, and they would be on the hill as well with our guests.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN875

Are there rental businesses on the mountain that Perisher doesn't own?‑‑‑That's correct.

PN876

Of the ski rental or of the equipment rental on the mountain, are you saying that you don't know whether Perisher would have at least 50 per cent of that market?‑‑‑For equipment hired at Perisher? We would be one of the biggest, no doubt.

PN877

Would that be the same for clothing hired at Perisher?‑‑‑Again, at Perisher, I would say we would be one of the biggest.

PN878

I'd also just like to ask you some questions about food and beverage and to do that I might hand up a Perisher map. I've got copies for the Tribunal as well. This is a trail map that was actually handed to the parties on the inspection, I believe. Firstly, Mr Girling, I'll just ask you, that reflects the Perisher Mountain trail map?‑‑‑The main Perisher trail map, that's correct.

PN879

There's a couple of discrete areas that aren't on this, that there's separate maps for, is that right?‑‑‑That is correct.

PN880

You operate a few food and beverage facilities. The first food and beverage facilities, if I can just take you, at the base of the mountain, there is a whole suite of utility kind of symbols there, or forks and knives, information and the words Perisher Centre. Do you see that?‑‑‑I do.

PN881

At the Perisher Centre, you operate a food and beverage outlet within the Perisher Centre, that's right, isn't it?‑‑‑That's correct.

PN882

What's its dining capacity, if I could ask? How many people can it seat at any one time?‑‑‑The Perisher Centre, food and beverage is a shared facility, so it doesn't have its own seating. It's shared with other private operators which we would have seen when we went through, I believe, on the inspection. It varies on a day by day basis.

PN883

Do you know roughly how many customers would come through that on a busy lunch hour?‑‑‑I wouldn't, as it's a shared facility, so it's just not our covers.

PN884

You also have in the Perisher Centre, or as part of that complex, a venue known as Jacks Bar and Grill - what's the full name of Jacks?‑‑‑Yes, Jacks Bar and Grill.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN885

Jacks Bar and Grill. What's its dining capacity?‑‑‑It has a small dining capacity. It's not that large, again, it depends on any given day. On a good day, you'd have seating facility outside as well. It would depend again, but it's a very small outlet in terms of - - -

PN886

Would it be 50 people?‑‑‑It would be somewhere between 50 and 70 people would sit within that.

PN887

Is that on the inside?‑‑‑That's on the inside.

PN888

How many on the outside?‑‑‑Again, that would depend. The facilities on the outside are more of a casual dining, so people can take food from inside. There's a food outlet on the outside of the building there. People would buy their food and sit in any of those locations - we don't restrict them on that basis.

PN889

20, 30 people in terms of the outside capacity?‑‑‑Across the front of Jacks, probably around that, but there's more seating facility across the front of Ski Rock and down towards the Perisher Valley Hotel.

PN890

There's also a food and beverage service that you operate at the Mid Station. In terms of the map, in the centre of the map there is a chair said Perisher Quad Express Chair and half way up we see a fork and knife and a medical sign and some toilets. Do you see that?‑‑‑Yes, I do.

PN891

Is that the Perisher mid-station facility?‑‑‑That is the Perisher mid-station facility.

PN892

That operates food and beverage?‑‑‑Yes, it does.

PN893

What's the capacity of that particular venue inside and outside?‑‑‑It's not our venue, so I wouldn't be able to tell you.

PN894

That is operated by a private operator, is it?‑‑‑That's correct.

PN895

VICE PRESIDENT HATCHER: Is that still within the two kilometres?‑‑‑As I understand it, your Honour, yes.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN896

MR IZZO: Then we've got Blue Cow, so on the map, you'll see towards the centre, but a bit further to the right, there's a sign that says Blue Cow terminal and there's a whole heap of little symbols again. Do you see that?‑‑‑Yes, I do.

PN897

Is there a food and beverage facility in there?‑‑‑There's a number of food and beverage facilities within the Blue Cow terminal.

PN898

Does that comprise of private and resort owned?‑‑‑No, all facilities within the Blue Cow terminal are Perisher company organised.

PN899

They're all owned by Perisher?‑‑‑That's correct.

PN900

What's the dining capacity of all of those businesses in the Blue Cow terminal? How many people can sit and eat in that venue?‑‑‑Again, it varies on the configuration. I couldn't give you an accurate estimate as to what that would be.

PN901

A couple of hundred?‑‑‑Yes.

PN902

Then if we go back down to the base of the mountain, Perisher Centre again, to the right of the Perisher Centre, there is a restaurant called Snow Gums, is that correct?‑‑‑Snow Gums is part of the Perisher Valley Hotel, that's correct.

PN903

That's owned by the resort?‑‑‑That's correct.

PN904

What's its dining capacity?‑‑‑It has a very small dining capacity. It's somewhere between 50 to 70.

PN905

In addition to those businesses, there's private businesses selling food and beverage on the mountain?‑‑‑That's correct.

PN906

There's a kiosk at Pretty Valley, so Pretty Valley, above the cross-hatched orange section of the map, there's a Pretty Valley double chair, and if we go to the bottom of that chair lift, there is a fork and knife and a toilet facility. I take it that is the Pretty Valley kiosk? May have lost you. At the Perisher Centre, if we go up a little bit and to the right on the map.

PN907

VICE PRESIDENT HATCHER: Is that where it says interceptor access trail?

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN908

MR IZZO: Yes?‑‑‑Yes.

PN909

Is that the Pretty Valley kiosk?‑‑‑Mm-hm.

PN910

That's got small dining capacity - a few tables and chairs, is that right?‑‑‑Yes, that's correct.

PN911

No more than 15 or 20 people?‑‑‑Indeed. A lot of those on mountains do not. They're more a grab and go type arrangement.

PN912

The kiosk at Ayr that was mentioned, if we look at the map to the very far left of the map, there is a fork and knife at the very bottom of Ayr T-bar. That is the venue that you say you have measured is just outside the two kilometre radius from the post office, is it?‑‑‑From what we can measure, that's correct.

PN913

From what you can measure. That's privately owned?‑‑‑That is correct.

PN914

That has capacity for 20 people?‑‑‑It's more a - it could do, it's more again, a grab and go type arrangement.

PN915

At the bottom of Guthega - we haven't handed up the Guthega map, but if we go to the kind of the type section of the map you'll see above Black Perisher Mountain, there's a reference to Blue Calf T-bar?‑‑‑Yes.

PN916

My understanding is at the bottom of that T-bar, there is a dining establishment called the Burning Rock?‑‑‑That's correct.

PN917

Is that privately owned?‑‑‑It's operated by Perisher.

PN918

It's operated by Perisher. How many - what would its dining capacity be?‑‑‑Again, it would vary on configuration, but it would probably seat around 100 people.

PN919

Then if we go to the Smiggins area, to the right, Smiggins Hotel, there's dining there as well. Is the Smiggins food and beverage run by Perisher or privately?‑‑‑Privately.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN920

How many would that?‑‑‑In terms of that facility within the hotel? I couldn't tell you. It's not one of our operations.

PN921

In terms of private - no, I'll come back to the Perisher Centre. Is it fair to say that you own at least 50 per cent of the good and beverage services being delivered out of Perisher on the mountain?‑‑‑Again, it's very hard to accurately describe that, because a lot of the lodges are club lodges and they have their own food and beverage facilities within them. I couldn't accurately say that. Perisher would have a proportion of. Is it the majority, I would doubt it, given the facilities within the resorts.

PN922

You would have a significant proportion of the food and beverages being sold?‑‑‑Again, because of the lodges capacity in Perisher, we would have a proportion, but I couldn't say that we have a majority with any accuracy.

PN923

You would be the biggest provider of food and beverage services though, wouldn't you?‑‑‑We would - I think the most accurate way I could put it is, we would be the largest provider as a single entity.

PN924

Yes, so no other entity is serving more hot dogs, hot chips, food and beverages than Perisher is?‑‑‑As a single entity, correct, but not as a majority of the actual food and beverage being distributed in Perisher. I don't know if I can put it much finer than that.

PN925

Well, you're the biggest player. You're the biggest entity in terms of your volume of revenue and your trade in food and beverage compared to any other individual entity?‑‑‑In compared to any other individual entity, correct.

PN926

When we talk about the other resorts, what's the extent of our knowledge about food and beverage at the other resorts that your organisation represents?‑‑‑I would have a limited understanding of who runs the different establishments. I know it varies in each of the resorts in talking to each of them, but I don't have specific knowledge of each.

PN927

If we were to talk about Thredbo for instance, and go through the relevant facilities there, there's a bistro at the base of Friday Flat, are you aware of that bistro?‑‑‑I'm aware of the bistro, yes.

PN928

You're aware that's owned by Thredbo?‑‑‑Yes, I'm aware of that.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN929

And operated by Thredbo. Dining capacity of about 100 to 150, does that sound right to you?‑‑‑Again, I don't have an intimate knowledge of their seating capacities there.

PN930

Thredbo also operates a bar in the Village called the Schuss Bar, you aware of that?‑‑‑I am aware.

PN931

It's capacity around 200 people, does that make sense?‑‑‑Again I couldn't confirm or deny.

PN932

It owns a more up market restaurant called Cascades. Are you aware of that?‑‑‑I am aware.

PN933

Can you comment on its capacity?‑‑‑I cannot.

PN934

Restaurant at Merritts; Merritts being up the mountain. They operate a restaurant on the mountain - at the base of the Merritts ski run. Are you aware of that?‑‑‑I'm aware that they have an operation, yes.

PN935

You're not aware of the capacity?‑‑‑No I am not.

PN936

A business called Kareela Hutte. Are you aware of that?‑‑‑I am aware of the entity, yes.

PN937

But not aware of its capacity?‑‑‑No, I am not.

PN938

Are you aware they operate a bakery?‑‑‑No, I am not.

PN939

Are you able to comment on whether Thredbo would have a substantial share of the food and beverage market at Thredbo?‑‑‑I couldn't make an accurate assessment, again, because Thredbo has a lot of commercial and club lodges. It would be a mix of those again, and the ownership of those, I'm not 100 per cent au fait.

PN940

You would accept that Thredbo again, is the biggest single entity providing food and beverage services?‑‑‑I couldn't accurately make an assessment of that.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN941

Are you aware of any entity providing more food and beverage in Thredbo?‑‑‑I am not aware of any.

PN942

Are you aware of the extent to which Thredbo has a ski rental business, and by rental, I mean equipment and clothing?‑‑‑I am aware they have one, yes.

PN943

Are you aware of the extent to which - are you aware of other rental providers at Thredbo, private operators?‑‑‑I am aware that there are private enterprises that undertake ski hire at Thredbo.

PN944

Are you aware of the relative market share between those private versus resort owned?‑‑‑No, I am not.

PN945

Do you know what proportion of non-lifting facilities are operated by Thredbo?‑‑‑No, I am not.

PN946

Do you know what proportion of non-lifting facilities are operated at Falls Creek?‑‑‑No, only on discussion with them about their operations, but I don't know what the proportions of them are. Most of those things are commercial in confidence and they don't get distributed between resorts.

PN947

Understandably. Do you know what proportion of non-lifting facilities are operated at Mount Hotham?‑‑‑Again, they'd be commercial in confidence. They don't discuss those aspects in terms of the split.

PN948

Do you know what proportion of non-lifting facilities are operated at Corin Forest?‑‑‑No, I do not.

PN949

Do you know what proportion of non-lifting facilities are operated at Lake Mountain?‑‑‑Lake Mountain, to my knowledge, doesn't have any lifting facilities.

PN950

Right, they are one of your members, though?‑‑‑Lake Mountain is operated by the Southern Alpine Resort Management Board, as is Mount Baw Baw, so they have a lifting capacity - that resort management board has a lifting capacity and they operate that resort.

PN951

So, Lake Mountain doesn't have any lifts, is that right?‑‑‑No, it is not.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN952

But does it engage people under the award?‑‑‑It is operated by an entity that does undertake lifting. Whether the RMB current uses the award, I am not aware.

PN953

You don't know whether the staff engaged at Lake Mountain are engaged under the Alpine Resorts Award or not, is that right?‑‑‑I couldn't say with absolute certainty whether it is or whether it is not, but it could be.

PN954

Going back to the proportion of non-lifting facilities, I take it as well that you don't know the proportion of non-lifting facilities are operated by Mount Buller at the Buller Resort?‑‑‑Similar again, the capacity of those things are commercial in confidence; they're not discussed.

PN955

I take it's the same answer for the others that I haven't yet mentioned, Mount Baw Baw, Mount Selwyn, Charlotte Pass, Ben Lomond. If I was to ask you about what proportion of non-lifting facilities are owned and operated by those operators, you would not know the answer?‑‑‑No, any of that data is consolidated to the ASAA and the ASAA don't distribute any data to the individual resorts.

PN956

What I'd like to do is to show you a map of the Perisher Centre, that we have attempted to draw up ourselves. I trust that it's going to be a fairly accurate representation, but you'll be the judge of that. This was my crude attempt, following our inspection to display the upstairs floor of the Perisher Centre that we walked through. I might just take you through it and to the extent that you think there's any error, perhaps you can let us know. The bottom right corner, you'll see what I would probably describe as the main entrance to the Perisher Centre. It's an exit, but there's a big kind of set of double doors in that bottom right hand corner, is that right?‑‑‑That's correct.

PN957

You walk in, and on your right is the Jacks Bar and Grill that we talked about, yes?‑‑‑That's correct.

PN958

That's resort owned?‑‑‑That is.

PN959

Then if we go north, so to speak, or up the page, there's Perisher offices upstairs, that's just resort offices, is that right?‑‑‑They're administrative offices, yes.

PN960

Immediately to the left, Slope Style retail store, that's owned by Perisher?‑‑‑That's correct.

PN961

Kebabs, that's owned by private operator?‑‑‑Correct.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN962

Sundance in the Snow is a private operator?‑‑‑That's correct. There is a seating area between those two facilities.

PN963

I see. Brunelli's Café is an operator?‑‑‑That's correct.

PN964

Snow Sports retailers is a private operator?‑‑‑Correct.

PN965

Then I think there's some toilets, I'm not sure if that's right?‑‑‑There is a jeweller.

PN966

A jeweller, which is a private operator?‑‑‑That's correct.

PN967

Curve Café is resort owned?‑‑‑Yes, slightly off to the side with a hallway there, but yes, it is resort owned.

PN968

Then Ski Rock is resort owned and it takes up a lot of that other side of the building?‑‑‑That's correct.

PN969

Have I missed any businesses in there?‑‑‑Other than the jeweller, no, that's accurate.

PN970

Everyone is sharing the seating in the middle?‑‑‑The middle and that area between Sundance and Kebabs.

PN971

Then bottom left, if you go - there's a little passage way, bottom left, you go to the Resort on Snow Gums Restaurant and the Perisher Valley Hotel?‑‑‑That's correct.

PN972

Perhaps at this point, it might be convenient to tender this document.

PN973

VICE PRESIDENT HATCHER: Tender the other one as well?

PN974

MR IZZO: And the map as well, your Honour.

PN975

VICE PRESIDENT HATCHER: The Perisher map will be marked as exhibit G.

EXHIBIT #G PERISHER MAP

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN976

VICE PRESIDENT HATCHER: Diagram of first floor of the Perisher Centre will be marked as exhibit H.

EXHIBIT #H DIAGRAM OF FIRST FLOOR OF THE PERISHER CENTRE

PN977

MR IZZO: Under that first floor there are additional businesses, some resort owned in terms of rental and ski hire, also some privately owned, is that right?‑‑‑That's correct.

PN978

You would agree that the privately owned businesses are inter-mixed with the resort owned businesses in relation to retail and food and beverage?‑‑‑Within the Perisher Centre, that's correct.

PN979

I understand that that intermix of privately owned businesses and resort owned businesses, is equally matched at the other ski resorts and alpine lifting company which your body represents. Do you agree or disagree with that statement?‑‑‑It would be a mix. Each resort is very different in terms of the way they operate.

PN980

At Thredbo, you accept that the businesses are intermixed?‑‑‑Yes.

PN981

At Mount Hotham?‑‑‑To which degree I couldn't tell you, but yes. Most resorts have an intermixing between private operator, club lodges, commercial lodges and company run.

PN982

Perhaps I'll do it different. Which resort doesn't?‑‑‑My understanding is Mount Selwyn would probably have more of a company based approached.

PN983

Have you been to Mount Selwyn?‑‑‑I have been to Mount Selwyn, yes.

PN984

In relation to - you reference commercial lodges and you reference club lodges. I can take you back to the Perisher map. Do you still have a copy of that? Not the Perisher Centre, but the Perisher map? I just want to ask you about a number of commercial lodges and just see whether you have an understanding of the nature of their business. The first one I want to ask you about is the Sundeck Hotel. That's the one we inspected on the inspection and that's on the mountain. That's privately operated?‑‑‑That's correct.

PN985

You describe it as a commercial lodged?‑‑‑That's correct.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN986

Now, if we go back, you'll see - - -

PN987

VICE PRESIDENT HATCHER: Is that on the map?

PN988

MR IZZO: It's not expressly stated, your Honour, but it is located, and Mr Girling can correct me if he believes I'm wrong. You'll see a Mitchell T-bar above the Perisher Centre. It's about half way up the Mitchell T-bar where it meets the Telemark T-bar. There's a kind of above - there's a big U, which is the half pipe.

PN989

VICE PRESIDENT HATCHER: Yes, yes.

PN990

MR IZZO: It's just above there. That's where the Sundeck was. If we go down below the Skitube terminal, you'll see the post office sign where it says Skitube terminal?‑‑‑Yes.

PN991

Just behind that, as we head towards Nordic Shelter and trail area, there's lots of little huts that you see - I'm sure not to scale, but pictorially, lots of huts down the base there, do you see them?‑‑‑Yes, I do.

PN992

That's where a lot of the other lodges are, aren't they?‑‑‑There are lodges in that location; there are lodges towards Mount Perisher. There are lodges out towards the North Peak area. There are lodges throughout Perisher.

PN993

Sure, and I'll just ask you about a few of them. The Man From Snowy River, that's down just below where it says Skitube terminal, that's right isn't it?‑‑‑Yes, that's correct.

PN994

The Perisher Valley Manor, well that's probably where the Perisher Centre is, would you accept that?‑‑‑It's off to the left hand side, looking up the mountain, that's correct.

PN995

There's the Boonoona and the Stables are both commercial businesses operated again beneath the Skitube in that kind of configuration of huts and their commercial lodges?‑‑‑Towards the Nordic Shelter area, yes.

PN996

Do you know where the Snowy Gums Resort is?‑‑‑I know it's within this precinct here, yes.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN997

When you say this precinct here, again you're pointing to - - -?‑‑‑I'm pointing to that area that you've noted as having the huts within it, yes. There's a number of commercial and club lodges within that area.

PN998

What about the Swagman's Chalet, that's a commercial lodge down there as well?‑‑‑Yes, it's along the road, yes.

PN999

They would all compete with the Perisher Valley Hotel, wouldn't they?‑‑‑Yes, I guess they compete. Again, they're symbiotic with us as well.

PN1000

The Perisher Valley Hotel provides accommodation services, yes?‑‑‑It does.

PN1001

That's what these businesses provide as well?‑‑‑Yes, they do, but again, different lodges are targeted at different markets, so whether they're in direct competition or not, I couldn't accurately say.

PN1002

Well, there's high end; there's low end of course?‑‑‑Absolutely.

PN1003

The Smiggins Hotel, that's at the base of Smiggins, that's privately owned?‑‑‑That's correct.

PN1004

How many beds does the Perisher Valley Hotel have?‑‑‑It only has around 30 rooms.

PN1005

How many beds would that be?‑‑‑Again, it depends on the configuration of beds in there, but it's only a very small hotel.

PN1006

At paragraph 3.6 of your statement - do you have your statement in front of you?‑‑‑Yes, I do.

PN1007

You say the seasonal nature of the snow sport industry also gives rise to the need for significant numbers of new staff each year which adds to recruitment, training and retraining costs. That's because the jobs aren't ongoing, I take it. That people don't stay for an ongoing basis; there's high turnover each season?‑‑‑It's based on both.

PN1008

VICE PRESIDENT HATCHER: What was the paragraph number again, sorry?

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1009

MR IZZO: 3.6?‑‑‑It would be based on both. Yes, the seasonality of the work and the duration of employment.

PN1010

You say at paragraph 3.10 to 3.14 that seasonality, significantly affects your operation and in particular, staffing. You talk about high levels of staffing during the ski season and then you go down to about 10 per cent staffing outside of it?‑‑‑That's correct.

PN1011

Those factors, they equally affect the other businesses operating in the (indistinct) that's right, isn't it?‑‑‑It would have a similar impact on those businesses, that's correct. Yes, on seasonality.

PN1012

When weather is inclement, you say the visitors are channelled into the non-lifting facilities, I presume because they can't ski or board?‑‑‑That's correct.

PN1013

I suppose we should clarify, when we say inclement, it's not just a bad day, this is sufficiently high winds or sufficiently poor conditions such that it makes it unsafe for people to be on the mountain?‑‑‑You would restrict the lifting on any given day if you have bad weather, yes.

PN1014

It would be high wind, there's some reason that you've restricted the number of people, or perhaps the whole access to the mountain, on certain days?‑‑‑It wouldn't necessarily just be restriction by the resort, it could be that the weather is inclement and people aren't inclined to go out when it's raining or when it's windy or when the snow quality isn't the same.

PN1015

I see, so there's two categories then. One is where it's actually the runs or the lifts have been closed by the resort and then also there is inclement weather more generally which just restricts activity?‑‑‑Yes, that would be correct. Most resorts have a mixture of surface and aerial lifting to try to combat the high winds and so forth, so that you still have lifting access at any given time.

PN1016

VICE PRESIDENT HATCHER: In any given season, how often might you actually stop using the lifting equipment?‑‑‑There wouldn't be a point, I don't think, your Honour, when we would stop completely. You would still have surface lifting such as T-bars and so forth. They can still operate safely and effectively but it would restrict terrain, so that might deter certain skiers, perhaps, who wish to ski certain terrain, because they can't get access to and from those locations.

PN1017

How often might that occur in a season?‑‑‑It would happen a hand full of times.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1018

MR IZZO: When that happens, you say that they're going to be funnelled to other businesses at the base of the mountain?‑‑‑They can be, yes.

PN1019

VICE PRESIDENT HATCHER: Do they get advance notice of it? That is, does somebody turn up the slope, say they're staying at Jindabyne, to find that they can't ski, or would you know and not turn up in the first place?‑‑‑I think the average skier these days, your Honour, is sufficiently able to use things like weather aps; the advent of resorts having Cams within their resort that are easily accessible, that's one of the first things that skiers and boarders will check in the morning before committing. Yes, they'll certainly check those things to see whether it's going to be conducive to them undertaking the activities that they want to do.

PN1020

If there's significant restrictions on being able to ski, persons who aren't staying on site would probably not come up in the first place. If they're in Jindabyne, they'd stay in Jindabyne?‑‑‑There would be a mixture again, your Honour. Again, if people have committed to coming down for that particular exercise. Even in inclement weather, they'll still commit to perhaps for a shorter period of time. They might go out just for the morning.

PN1021

MR IZZO: They then still pay for a lift pass?‑‑‑In that particular circumstance, they would, if they're already pre-committed.

PN1022

Your statement talks about at paragraph 3.2, people being channelled to non-lifting facilities - the last line of 3.1. Just before, you said they can be. Do you no longer stand by that second last line of the statement? You say:

PN1023

The alpine resorts experience low levels of patronage to their lifting (this is in poor weather) as any visitors to the alpine region are channelled to non-lifting facilities in the region.

PN1024

THE WITNESS: In those circumstances where there is poor weather, as your Honour put, they may stay in Jindabyne which is at the low elevations, or if they are already on the mountain, they may retire back to a food and beverage outlet and so forth, take refuge for a while and then see if the weather is going to dissipate before they head back out. Or they'll break up their skiing and boarding experience in terms of, they'll ski for a couple of hours, they'll go in for a couple of hours and then maybe come back out. But they will break up the experience and come up of the weather.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1025

So, where they break it up, they're still paying for a lift pass, that's correct?‑‑‑If they're breaking it up, rather than leaving, that's correct.

PN1026

When you say the channels to non-lifting facilities and they might be channelled to food and beverage, so they might be channelled to places like Jacks Bar and Grill, for instance?‑‑‑They certainly could, yes.

PN1027

They might be channelled to the café that Perisher owns, the Perisher Centre?‑‑‑Yes, they could.

PN1028

They might be channelled to the retail shops that you own in the Perisher Centre?‑‑‑Retail to a lesser extent, but yes.

PN1029

At Thredbo, they might be funnelled into the Thredbo Alpine Hotel complex?‑‑‑Look, they could certainly be facilitated to go into other establishments, and some of those, as we've ascertained would be company owned.

PN1030

For instance at Thredbo, at the base of the mountain, the Thredbo Alpine Hotel complex, businesses they might be funnelled into include the Schuss Bar, Cascades, the Bistro, the Keller Bar or even the bakery, news agency or bottle shop. All of those businesses, is where people might be funnelled if they're not skiing?‑‑‑That's correct.

PN1031

All of those are owned by Thredbo?‑‑‑Those that you mentioned, yes.

PN1032

It stands to reason that at other resorts, there might be other resort-owned cafes, restaurants and bars that people are funnelled to, when there's poor or inclement weather that channels them to the non-lifting facilities?‑‑‑If they're already in resort, that's correct.

PN1033

If they're not, they might stay down in Jindabyne, or in another - we've heard the word 'feeder town', in a town lower down the mountain?‑‑‑Correct, predominantly people for Thredbo and Perisher are going to stay in Jindabyne, so that would the main location for their accommodation. But likewise, for some of the other resorts, as we've talked about.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1034

I apologise for chopping and changing; I'm actually going to take you back to the map. The businesses that are on the mountain, I think we identified the kiosk at Pretty Valley, the kiosk at the base of Mount Perisher to the far left at least. If there is inclement weather and the lifts are shut, then no one can be transported to those areas, and so those businesses effectively, have to cease trading. Is that correct?‑‑‑For a business that's relying on lifting to get access to, that's correct.

PN1035

I take it, even the operators themselves, couldn't get access to their own business?‑‑‑They could over-snow transport themselves.

PN1036

They might have their own type of arrangement?‑‑‑Correct.

PN1037

But there's not going to be anyone coming through the business?‑‑‑It would have a significant impact on them, that's correct.

PN1038

I might just ask you - I might also hand you a map of Thredbo. This looks like the Thredbo trail map to you?‑‑‑Yes, it does.

PN1039

Just want to ask you about a couple of businesses. The Thredbo Alpine Hotel, do you see that down the very base of the mountain?‑‑‑Yes, I do.

PN1040

That's the business that's owned by Thredbo that we were talking about earlier?‑‑‑That's correct.

PN1041

The Bistro at Friday Flat, if you go down to the right, you'll see a reference to - it's kind of new Syd Snow Run and above that is all these symbols, and it says Friday Flat. That's where the Bistro at Friday Flat is?‑‑‑That's Correct.

PN1042

That's owned by Thredbo? The Bistro there is owned - - -?‑‑‑To my knowledge, yes.

PN1043

Up the mountain, if we go above the Thredbo Alpine Hotel, there's a chair lift called Snow Gums, that takes you all the way to the middle of the map. There's a restaurant called Black Sallees. Do you know whether that's privately owned?‑‑‑My understanding is, it's privately owned.

PN1044

It's privately owned. Further up, just a bit to the left is Eagles Nest, where we actually went on our inspection with the members. That's privately owned?‑‑‑To my knowledge, that's correct.

PN1045

Then further down, just a little bit, that's Kareela, and that's owned by Thredbo?‑‑‑That's correct.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1046

But it used to be privately owned?‑‑‑Yes.

PN1047

When there's inclement weather, again, it stands to reason that if these lifts aren't operating, Kareela, Black Sallees, Eagles Nest, they just can't operate?‑‑‑If the primary lift to those areas is taken out by weather, then that would be correct.

PN1048

Just for the sake of clarity, to the far right, we referred to Merritts being owned by Thredbo. To far right, it says Merritts Mountain House, it's got four symbols. That's the Merritts we were talking about earlier, is that correct? It's far right of the map. Sorry, Mr Girling, did you answer that question?‑‑‑Sorry, didn't know it was a question.

PN1049

The question is Merritts Mountain House, we referred to that earlier. Far right, you'll see Merritts Mountain House with four symbols, that's the Merritts, when we spoke about that earlier being resort-owned, that's the Merritts we were talking about, yes?‑‑‑Yes, that's correct. Sorry, I thought you were pointing out to the Commissioner where it was.

PN1050

No, sorry - miscommunication. Again, equally for that business, poor, inclement weather that results in people not being able to get up the mountain, you've got the same problem, you're not going to get people through the business?‑‑‑Poor weather would have an impact, that's correct.

PN1051

At paragraph 6.6 of your statement, you say that:

PN1052

The work undertaken by employees, covered by the Alpine Resorts Award, is often undertaken by snow sports enthusiasts, who wish to have the flexibility to work on weekends when the alpine resorts are busiest, and ski or now board during the week.

PN1053

Do you say they wish to work on weekends and ski or board during the week, because they're trying to avoid the lift queues on the weekends, is that right?‑‑‑That would be the predominant reason why they would wish to do that, that's correct.

PN1054

They don't really want to ski or board when there are crowds?‑‑‑Given their preference and given their locality in the local area, then no, they would tend to want to ski when they can maximise their skiing.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1055

Probably the only exception to this, would you agree, is if there's been a big dump of snow, then they'll deal with the crowds, and they'll say, look let's get up, it's a powder day, that's great. But that's probably the biggest exception to that general rule?‑‑‑Good weather days I mean, can happen on any day of the week, so it never fits necessarily, exactly the days that you wish them to be there.

PN1056

In terms of lift queues, and I appreciate you're representative of the resort and don't want to give evidence that's necessarily critical, but obviously, you're under oath. What's a long lift queue wait? On a really busy day, and you're at the bottom of Front Valley trying to get on, or you're at the bottom of Mount Perisher, how long could you be waiting?‑‑‑A long lift queue; the queues themselves are really dependent on the lift that's actually pulling you out of there. A long lift queue at a T-bar would be something that would take quite a long period of time to get out of. A long lift queue on something like a V8 which we use on the Front Valley area, would pump those numbers very very quickly. The queue tends to move quite quickly.

PN1057

If we go to Mount Perisher where the lifts are a bit older, a long queue at the bottom of the triple chair there, or one of the T-bars could be a 20 or 30 minute wait?‑‑‑That's correct.

PN1058

Equally at the bottom of the ridge chair at Blue Cow, could be a 30 minute wait?‑‑‑Yes, absolutely.

PN1059

Could it be longer?‑‑‑Could possibly, depending on what the queue was for. If the queue was based on there being a weather event and that we were getting people out of there after a weather event, then that could certainly impact it. On a busy day, yes you can get areas where people can bottleneck into, but there's a variety of reasons why people would.

PN1060

There are choke points, aren't there, in the sense that there's key lifts that connect to other areas of the resort. Whether it's the ridge quad chair; whether it's perhaps another freedom chair at Guthega; whether it's the quad down at the base of Perisher, there's about a hand full of lifts that are critical. The interceptor at Perisher, that are critical to transporting people to other areas of the mountain. At particular times, they can particularly get choked up and have longer queues, because of the critical way in which they then transport people around the mountain?‑‑‑Yes, the distribution of guests at different points can be heavier than others. In the morning, it would be things like V8 where people are first coming into the resort, but as lifts open and as lifts close, different points would get busier.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1061

Would you agree that when there are no crowds, and when it's not busy, instead of a 30 or 40 minute wait, you literally can just ski onto the lift queue and there is no wait?‑‑‑There would certainly be a shorter period of time when there is less people.

PN1062

And it can be dramatically shorter?‑‑‑Yes.

PN1063

VICE PRESIDENT HATCHER: Mr Izzo, we'll have to pause now. How much longer do you think you'll be with this witness?

PN1064

MR IZZO: Just bear with me, your Honour. Probably 30 minutes, your Honour.

PN1065

VICE PRESIDENT HATCHER: I'm just wondering, if we started at 9.15, could we finish with this witness subject to any further evidence in reply and then get back onto the timetable by 10?

PN1066

MR IZZO: I think that's - yes. We don't have that many witnesses tomorrow. I think starting at 9.15 would be helpful, yes, your Honour.

PN1067

VICE PRESIDENT HATCHER: Right, we'll start at 9.15 tomorrow. This further map, do you want me to mark that, Mr Izzo?

PN1068

MR IZZO: Yes, please.

PN1069

VICE PRESIDENT HATCHER: Mountain map of Thredbo will be marked exhibit I.

EXHIBIT #I MOUNTAIN MAP OF THREDBO

PN1070

MR IZZO: Your Honour, not wanting to be too pedantic, but perhaps if the witness could just be reminded to speak to anyone about his evidence overnight.

PN1071

VICE PRESIDENT HATCHER: Yes, I'm sure that will be the case.

PN1072

MR HARMER: If the Commission pleases, if I could just raise a caveat on that to the extent of instructing on other witnesses or other issues that have arisen as opposed to his own evidence.

*** GAVIN ALFRED GIRLING XXN MR IZZO

PN1073

VICE PRESIDENT HATCHER: It won't be necessary overnight though?

PN1074

MR HARMER: I would think so, yes.

PN1075

MR IZZO: I would happily provide the ASAA with 10 or 15 or 20 minute adjournment tomorrow if that's required. I would have thought it's preferable that they don't speak about the matter this evening, given he's under cross-examination. I don't think it would be critical; we've just got further witnesses tomorrow.

PN1076

MR HARMER: Again, I just undertake not to discuss his own evidence, it's just more issues that have arisen today and witness that are otherwise on tomorrow. He's our instructing officer.

PN1077

VICE PRESIDENT HATCHER: What, you mean you haven't discussed those witnesses with him already?

PN1078

MR HARMER: We discussed the ones for today. Overnight we would be discussing ones for tomorrow.

PN1079

VICE PRESIDENT HATCHER: Mr Harmer, I'll have to leave it to your professional judgment, but I would expect that to be minimal, and if you need a proper opportunity to speak to the witness, as Mr Izzo said, you can ask for an adjournment when his evidence finishes tomorrow.

PN1080

Right, we'll now adjourn, resuming at 9.15 am.

<THE WITNESS WITHDREW [3.51 PM]

ADJOURNED UNTIL TUESDAY, 31 OCTOBER 2017 [3.51 PM]

*** GAVIN ALFRED GIRLING XXN MR IZZO

LIST OF WITNESSES, EXHIBITS AND MFIs

LUIS ANTHONY IZZO, SWORN...................................................................... PN201

EXAMINATION-IN-CHIEF BY MR SCOTT.................................................. PN201

EXHIBIT #A STATEMENT OF LUIS ANTHONY IZZO DATED 12/09/2017 PN207

CROSS-EXAMINATION BY MR HARMER.................................................. PN210

THE WITNESS WITHDREW............................................................................ PN279

LUIS ANTHONY IZZO, RECALLED............................................................... PN286

CROSS-EXAMINATION BY MR HARMER, CONTINUING..................... PN286

RE-EXAMINATION BY MR SCOTT............................................................... PN321

THE WITNESS WITHDREW............................................................................ PN325

EXHIBIT #B STATEMENT OF EMILY SLAYTOR DATED 13/04/2017... PN334

SANDRA GAYE CONNOR, AFFIRMED........................................................ PN342

EXAMINATION-IN-CHIEF BY MR SCOTT.................................................. PN342

EXHIBIT #C STATEMENT OF SANDRA CONNOR DATED 31/03/2017. PN351

CROSS-EXAMINATION BY MR HARMER.................................................. PN351

CROSS-EXAMINATION BY MR BRUNO...................................................... PN406

RE-EXAMINATION BY MR SCOTT............................................................... PN453

THE WITNESS WITHDREW............................................................................ PN461

STEPHEN GARY PENNINGTON, AFFIRMED............................................ PN556

EXAMINATION-IN-CHIEF BY MR SCOTT.................................................. PN556

EXHIBIT #D STATEMENT OF STEPHEN PENNINGTON DATED 30/03/2017 PN579

CROSS-EXAMINATION BY MR HARMER.................................................. PN579

CROSS-EXAMINATION BY MR BRUNO...................................................... PN713

RE-EXAMINATION BY MR SCOTT............................................................... PN764

THE WITNESS WITHDREW............................................................................ PN774

EXHIBIT #E DINNER PLAIN ALPINE VILLAGE MAP............................. PN777

GAVIN ALFRED GIRLING, SWORN............................................................. PN789

EXAMINATION-IN-CHIEF BY MR HARMER............................................. PN789

EXHIBIT #F WITNESS STATEMENT OF GAVIN ALFRED GIRLING DATED 21/12/2016................................................................................................................................. PN829

CROSS-EXAMINATION BY MR IZZO........................................................... PN867

EXHIBIT #G PERISHER MAP.......................................................................... PN975

EXHIBIT #H DIAGRAM OF FIRST FLOOR OF THE PERISHER CENTRE PN976

EXHIBIT #I MOUNTAIN MAP OF THREDBO............................................ PN1069

THE WITNESS WITHDREW.......................................................................... PN1080