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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 26143-1
VICE PRESIDENT WATSON
AM2010/16 AM2010/17
s.158 - Application to vary or revoke a modern award
Application by National Retail Association
(AM2010/16)
Application by Master Grocers Australia Limited
(AM2010/17)
Application by Australian Retailers Association
(AM2010/39)
Application by Jim Whittaker
(AM2010/44)
General Retail Industry Award 2010
(ODN AM2008/10)
[MA000004 Print PR985114]]
Melbourne
10.05AM, THURSDAY, 6 MAY 2010
Continued from 25/02/2010
PN1
MR N TINDLEY: I appear for the National Retail Association.
PN2
MR C ISSA: I appear for the Master Grocers Australia.
PN3
MR T HALLS: I appear for the MCE Group seeking leave to appear on behalf of the Australian Retailers Association as agent.
PN4
MR D MAMMONE: I continue my appearance for the Australian Chamber of Commerce and Industry.
PN5
MR W FRIEND: I seek permission to appear with MR C DOWLING for the SDA.
PN6
MR T SHIPSTONE: I appear for the Australian Council of Trade Unions.
PN7
THE VICE PRESIDENT: Permission is granted for counsel to appear in this matter. Is there any objection to all of the applications being heard together?
PN8
MR FRIEND: No, your Honour.
PN9
THE VICE PRESIDENT: All right. We will proceed then on that basis. Yes, Mr Tindley.
PN10
MR TINDLEY: Your Honour, I note that you've granted permission for counsel to appear, but we do have a concern that this is not a matter at which it would be appropriate for counsel to appear. Counsels appearing on behalf of what is in my understanding the largest union in Australia, a union that has vast industrial experience and has capacity to pursue its own case in this matter, we think that section 596 of the Act sets out the grounds on which representation by lawyers and paid agents should be granted. And in our submission we're not dealing with an overly complex matter. And it would not be unfair for the SDA to represent itself in the matter.
PN11
THE VICE PRESIDENT: Does anyone else wish to support that objection?
PN12
MR MAMMONE: If it please the Tribunal, ACCI supports the submissions made by the NRA on that basis.
PN13
MR ISSA: If it pleases, your Honour. I object to this application made by the NRA.
PN14
THE VICE PRESIDENT: Yes. Mr Halls?
PN15
MR HALLS: Your Honour, I think I might be a bit hard to object to a counsel appearing for my own circumstances, so I won't have an objection to them appearing.
PN16
THE VICE PRESIDENT: Do you wish to respond to the objection on your own behalf?
PN17
MR HALLS: No, your Honour.
PN18
THE VICE PRESIDENT: Mr Friend?
PN19
MR FRIEND: Leaves it up to me, your Honour. Your Honour, 596(2) provides that you may grant permission for representation if it would enable a matter to be dealt with more efficiently, taking into account the complexity of the matter. Your Honour, this is a very important award and a very important question. There are four applications to be heard at the same time and a number of witnesses being called by both sides. It had involved considerable preparation from all parties and it is a matter, in my submission, which is imminently suited to be one in which counsel represents one of the parties. Your Honour, all persons here are experienced industrial advocates. It's not the circumstance where we've got a party appearing without representation who has no industrial experience whatsoever. This is a case where all of the persons at the bar table are experienced industrial advocates and there is no reason why one would expect that it would place those making the objection to any disadvantage.
PN20
It has been on the record at least since our submissions were filed that the SDA proposed to proceed in this way and it would of course be unfair to take the rug out from under our feet at this stage. I can say we all had notice of this objection last night. That's the earliest we knew of it. What would happen if your Honour were to acceded to the objection is that we would need to stand the matter down and perhaps seek an adjournment to firstly allow my clients to be advised, and I don't say that in terrorem, but to consider the matter, but also to allow the SDA to prepare. And that's not going to be conducive to the efficient conduct of the matter. We're all here, we're ready, witnesses are ready and in my submission the appropriate course is to allow counsel to represent the SDA.
PN21
THE VICE PRESIDENT: Is that a legitimate question under section 596?
PN22
MR FRIEND: I'm sorry, your Honour?
PN23
THE VICE PRESIDENT: Is that a legitimate question under section 596, if the application is not granted it might cause some delay or [indistinct] representation?
PN24
MR FRIEND: I put that in terms of efficiency, your Honour. Efficiently dealing with the matter. Because it's raised at a late stage it would lead to an inefficiency. I don't put it any higher than that, your Honour. It's not a knockout put, it's just one of consideration your Honour might take into account.
PN25
THE VICE PRESIDENT: It could be open to manipulation if it was a knockout point.
PN26
MR FRIEND: It could be, your Honour. Although it would depend how far ahead the notice was given.
PN27
THE VICE PRESIDENT: Yes.
PN28
MR FRIEND: If your Honour pleases.
PN29
THE VICE PRESIDENT: But you really rely on paragraph (a)?
PN30
MR FRIEND: Yes, your Honour. Paragraph (a) is the one we rely on. Mr Dowling also points out that the four applications seek different things which add to the complexity of the matter. If your Honour pleases.
PN31
MR HALLS: Your Honour, if I may I just wanted to provide you with a little bit of background of my appearance today. Obviously the role that I have changed since I last appeared in this forum. The ARA's industrial relations services are now provided by the FCP Group, so the ARA does not actually engage in-house industrial relations staff to provide that service to members. So whilst I am not a direct employee of the ARA, I am an employee of FCP Group who is responsible for providing those services. And as your Honour would be aware as well, [indistinct] been involved in these proceedings relating to the other modern retail awards. So I believe that section 596(2), at least (a) and (b), would certainly be relevant to my circumstances here.
PN32
THE VICE PRESIDENT: Mr Tindley, do you wish to respond to grounds that have been advanced?
PN33
MR TINDLEY: Your Honour, the issue about the efficiency with which the matter can proceed. We understand that it is late notice. It wasn't a matter, a factor that we considered until yesterday. And as soon as it had been considered we informed the SDA that we would be making an objection of this nature. One of the reasons preferred, I don't know if this was pressed entirely, is that there are a number of different applications. Those applications are dealing with the same subject matter. The differences between them are minimal. And the factors that would go to the decision making process in this matter are the same, regardless of the separate applications. It is an application about a single clause of the retail award. That is not a complex matter.
PN34
The matter involved a single clause of the retail award in which the SDA has had full involvement since the modernisation process started, and if the matter goes to the historical concepts of casual employment in the retail industry the SDA has been involved throughout all the development of all awards, or pre-existing awards, the previous NAPSAs and federal awards. So I don't think it's appropriate for the Tribunal to consider this to be a matter with the level of complexity that it requires counsels' appearance. Apart from that we don't have any further submissions.
PN35
THE VICE PRESIDENT: Mr Issa?
PN36
MR ISSA: If it pleases, your Honour. Representatives from the SDA stated that at 596(2)(a) that it would be more efficient taking into account to enable them to represent the SDA. However, their claim of efficiency is well unfounded as all the MGA's correspondence with the SDA throughout this procedure from the hearings and directions hearings up until this point has been [indistinct] of the SDA. Under 2(b) the union is capable of representing itself as been seen previously. They have represented themselves in a number of matters and it would not be undue for them to represent themselves in this matter as well, as my friend and the NRA have stated. The SDA has been involved in this process. They are involved in retail and dealing with employees. They are fully aware of what the award involves and what the parties are seeking here today.
PN37
THE VICE PRESIDENT: I consider that there is a number of complex questions and issues involved in this matter that granting permission would enable the matter to be dealt with more efficiently, taking into account those complexities. I grant permission to counsel in each case to appear. Yes, Mr Tindley.
PN38
MR FRIEND: Your Honour, just before Mr Tindley starts, can I just as a matter of housekeeping hand up a copy of our submissions with an addition which we've given to our friends at the bar table just dealing with the situation at the Northern Territory behind a particular tab, 16(i).
PN39
THE VICE PRESIDENT: This has been provided to the other side?
PN40
MR FRIEND: Well, not in that form, your Honour. It's what's covered in that form. The content of the folder is what has been posted on the website, for your Honour's convenience put in a folder.
PN41
THE VICE PRESIDENT: Yes, thank you. Mr Tindley.
PN42
MR TINDLEY: Your Honour, it is our intention to provide some very brief submissions at this point and then we've had some discussions with the SDA and Master Grocers about the schedule for witnesses. There are some time constraints in relation to a number of witnesses. If I can point out initially and I'll speak only for our witnesses. We have - and we note there's been an objection to witnesses appearing by telephone. I would suggest that it may be appropriate to deal with that now, if that's possible. There were some discussions about the feasibility of having witnesses appear. In relation to the NRA's witnesses, there are two school children who have schooling obligations today and tomorrow who are available by telephone, but are only available by telephone outside of school hours. So that is an issue for both the need or the reason for them being granted permission to appear by telephone and in relation to the time at which we'd like to be able to call them to give evidence. And that is, and I'll be asking the Tribunal's permission with this, to appear after 4 pm today.
PN43
They are school children at a country school and they travel back to their home and will be giving evidence from their homes. But they're located two and a hours from Melbourne, approximately 220 kilometres from Melbourne in a town called Terang.
PN44
THE VICE PRESIDENT: So to give their evidence and be cross-examined by telephone?
PN45
MR TINDLEY: Yes, your Honour.
PN46
THE VICE PRESIDENT: What's the other parties' views about that?
PN47
MR FRIEND: Perhaps your Honour would like me to respond. It's not an entirely satisfactory way to proceed, your Honour, but one has to balance a variety of things in a matter such as this. I'm not quite sure what arrangements my friend has made in relation to administering the oath and such like in respect to the telephone. I think there might be some difficulties there. But perhaps I've seen the second one of the statements this morning. Given the content and what we would say about the weight and relevance that they would have in general, we don't want to make things more difficult for your Honour. So if your Honour is minded to do that we would still make submissions about weight, but formally we think it ought to be done with a little bit more formality because of the nature of the proceedings. But it's a matter for your Honour.
PN48
THE VICE PRESIDENT: Yes. If you do wish to cross-examine these witnesses?
PN49
MR FRIEND: Very briefly, your Honour.
PN50
THE VICE PRESIDENT: Very briefly?
PN51
MR FRIEND: Yes.
PN52
THE VICE PRESIDENT: I see. Well, I think we can proceed on that basis and I'm happy to schedule that evidence for 4 pm or after 4 pm?
PN53
MR TINDLEY: From 4 pm, your Honour.
PN54
THE VICE PRESIDENT: Yes. Perhaps before we get to that evidence we'll briefly adjourn to enable the telephone link to be established and you can then lead your evidence at that stage after 4 pm today.
PN55
MR TINDLEY: Yes, your Honour. I should have also mentioned, your Honour, that our third witness is located in South Australia and then we'd also seek permission for them to appear by telephone. We raised that via correspondence yesterday. That's William Wareham. And Mr Wareham is available at any time today.
PN56
THE VICE PRESIDENT: How many witnesses have you got altogether?
PN57
MR TINDLEY: That's all three of them, your Honour. They're the three witnesses.
PN58
THE VICE PRESIDENT: So none of them are attending in person?
PN59
MR TINDLEY: None in person.
PN60
THE VICE PRESIDENT: So you wish to make an opening at this stage and then proceed to the evidence, but not the two - - -
PN61
MR TINDLEY: That would be our preference.
PN62
MR FRIEND: Your Honour, could I be heard about Mr Wareham, the first witness?
PN63
THE VICE PRESIDENT: Yes.
PN64
MR FRIEND: He is in suburban Adelaide. There doesn't seem to be any reason why he couldn't be available for a video link. Your Honour, this is a significant matter and the evidence that the parties are propounding is to the parties important. And we ought to be able to test it in an appropriate way. We have one witness today who will be available by video link and others attending, but we would submit that Mr Wareham should only be heard if he is available by video link for cross-examination either today or tomorrow. And the parties have been on notice of the union's position about this for a long time.
PN65
MR TINDLEY: Well with respect, your Honour, the parties were on notice that the SDA objected to any format of appearance by witnesses other than in person. Now, the SDA have moved that position to allow their witness to appear by video link. Now, in our submission there is no significant difference between the witness appearing by video link and by telephone, apart from the balance of convenience. And we are not talking about controversial evidence. We're not talking about evidence that is refuted by other witnesses. We're not talking about serious issues of credit. We're talking about a witness who is talking, who is giving evidence as to the nature of his business and his ability to employ casual employees.
PN66
Now, we can't foresee what the SDA may want to question him about, but it is very difficult to identify where the difficulty lies in him appearing by telephone.
PN67
THE VICE PRESIDENT: Who's the South Australian witness?
PN68
MR TINDLEY: Sorry, your Honour?
PN69
THE VICE PRESIDENT: Which witness is this?
PN70
MR TINDLEY: Mr Wareham.
PN71
THE VICE PRESIDENT: Mr Wareham? Why can't he be present in the Adelaide premises and be cross-examined by video?
PN72
MR TINDLEY: Mr Wareham is a small business owner who predominantly works within his store. So to drive him out of the store to travel into Fair Work Australia with no clear understanding of when he is going to be appearing drags him away from his business.
PN73
THE VICE PRESIDENT: And if we said, say, 2.15 today why couldn't arrangements be made, subject to the video link being available?
PN74
MR TINDLEY: If we could establish those circumstances we can inquire into that.
PN75
THE VICE PRESIDENT: I think that's preferable. I think we should proceed on that basis.
PN76
MR TINDLEY: Perhaps we should have a brief adjournment now so I can see if that arrangement is able to be achieved by Mr Wareham.
PN77
THE VICE PRESIDENT: Well that's, I think, when we will have his evidence. You can make arrangements for him to be contacted for that purpose. But I think we should proceed and hear from your opening and the opening of the other applicants.
PN78
MR TINDLEY: Your Honour, my opening is - I intend to be very brief - we need to hear the witness evidence prior to giving substantial submissions. The key issue here for Fair Work Australia to determine is whether the variation that's sought by the parties to the Retail Award and the variation that's sought by the NRA to the Retail Award is necessary to achieve the modern award's objective. The modern award's objective is to provide a fair minimum safety net for employees, taking into account a number of factors. Now, there's been discussion in this matter about the economic factors that are relevant here. It is not our intention to deal with those in any great depth. In our submission the fundamental consideration for the Tribunal in this matter is whether this variation achieves the modern award's objective with respect to what we see as one of the fundamental considerations, and that is participation in the workforce of young people.
PN79
And the way that, in our submission, the Tribunal should approach this is to view the award in the absence of the proposed variation and determine whether that meets that obligations and to view the award with the variation and determine whether that meets the obligation. In our submission the exclusion of young people from the workforce is a fundamental issue with the current award and it is an issue that must be addressed. We are talking about young casual people predominantly in region areas, but no less in metropolitan areas. They are young people whose ability to participate in the workforce is restricted by their availability due to their schooling circumstances.
PN80
That obligation can not be set aside and should not be set aside. Their schooling obligations should always be their primary consideration, but they don't really want to work after school. The trading hours, and we note the SDA's witness provide information about trading hours, but the retail industry contrary to the submissions of the SDA is not made up of department stores and supermarkets. It is made up of a wide range of retailers. And predominantly those retailers don't trade before 5 or 5.30 pm Monday to Friday, except for one night. To exclude young people from the opportunity to take up shorter shifts is excluding them from the workplace and in our submission that fundamentally fails to meet one of the key considerations in establishing a fair minimum safety net.
PN81
Your Honour, in the interest of seeking to minimise the issues before the Tribunal we have had some discussions with the other applicants about the nature of the application. We note that there are a number of different applications being pursued. We have had discussions, as I said, with the other parties and in terms of the NRA and ARA have come to some form of consensus about the nature of the application and what should be sought and I would seek now to provide the Tribunal with a copy of the proposed forms that the NRA and ARA have. And we understand this differs from the nature of our application, however we would seek that in the interests of efficiently proceeding with the matter that this be accepted as part of the clause of both the NRA and ARA.
EXHIBIT #T1 DOCUMENTED HEADED NRA AND ARA PROPOSED CLAUSE
MR TINDLEY: Your Honour, those are our brief introductory submissions.
PN83
THE VICE PRESIDENT: Mr Issa.
PN84
MR ISSA: Your Honour, the application sought here by the MGA today is to vary the General Retail Award in relation to minimum engagement of casual employees. We understand that under section 157(1) of the Act that Fair Work Australia must be satisfied that the variation is necessary in order for it to be approved. We submit to your Honour that the modern award objectives has been instituted under section 132 of the Act to ensure that modern awards provide a fair and relevant safety net, minimum terms and conditions. Variations sought by MGA and other applicants is designed to ensure that the minimum standards for casual employees are relevant and fair to both the needs of employees and employers. MGA submits that the current minimum engagement for a casual employee under the General Retail Award is neither fair nor relevant and should therefore be varied. It does not meet several sections under section 134 of the modern award objectives, such as 134(1)(a), (c) and (d) mainly.
PN85
In their submission the SDA in paragraph 27 sought to rely upon the statement of Young CJ in D & D Corak Investments v Yiasemides [2006] NSWSC 1419 which was adopted with approval by Forster J in O'Shea v Athanasakis [2009] NSWSC 1150. This statement dealt with the meaning of the word 'necessary' which is held to mean something more than is convenient or nice to have. The variations sought by the applicants here today is more than an application to vary the award because of convenience. It is a variation that has been sought as a result of necessity in order to achieve the minimum award objectives. The SDA at paragraph 22 of their submission has also sought to rely upon the decision handed down by the Full Bench of Fair Work Australia on 2 February 2010 in Shop Distributed & Allied Employees Association v Pharmacy Guild of Australia, FWA Full Bench at 662, claiming at paragraph 22 of their submission that that application by the Pharmacy Guild of Australia is the same as the present application.
PN86
However, that case concerned, amongst other things, the application to vary the minimum engagement of part-time employees under the Pharmacy Industry Award 2010 as opposed to the casual employee variations that we are seeking today. MGA submits that the applications before Fair Work Australia today can be distinguished from the Pharmacy Guild case on the basis that the variations sought refer to the variation of casual employees and also as the submission filed by the Pharmacy Guild of Australia, not actually rely on any provisions within the modern award objectives found under section 134. For these reasons we submit to your Honour that Fair Work Australia should not consider this case as binding on the applications today.
The ACTU throughout the entirety of their submission maintain that the matter should not be litigated. This position is detrimental to all motions of natural justice and raises issues of whether the applications made not just here today, since the first modern award variation application filed with Fair Work Australia on 9 May 2009, should even have been heard. But taking the submission of the ACTU to its realistic end point, at the moment I believe there are nine variations that have been made to the General Retail Award that have already been made should they haven't even been heard. This line of reasoning is not something that Fair Work Australia should entertain as we're being consistent with the current approach. We maintain that the variations sought by MGA is in fact beneficial and not detriment and would infrastructure fact be necessary to achieve the modern award objectives. That's our submission thank you, your Honour.
PN87
THE VICE PRESIDENT: Do you propose to all any evidence, Mr Issa? Do you propose to call any evidence?
PN88
MR ISSA: Yes I do, your Honour. As we have had some dealings with the SDA in relation to one of our witnesses is unable to appear. She is a small store owner in Boort Victoria which is approximately 253 kilometres outside of Melbourne. She has had some serious [indistinct] issues and is unable to find a replacement that would enable her to attend today. We have called three witnesses. Two of them are available and will be attending today, however Allyson Fitzpatrick from Boort will be unable to attend, however will be able to give evidence by telephone.
PN89
THE VICE PRESIDENT: Well, is it convenient that you call your evidence now?
PN90
MR ISSA: The time that we have decided that will be appropriate that we have decided - pardon, let me rephrase. The time that we have stated will be appropriate for her to give evidence will be either between 11 and two, if it pleases.
PN91
THE VICE PRESIDENT: That's by telephone, is it?
PN92
MR ISSA: Yes, your Honour.
PN93
THE VICE PRESIDENT: What about the others?
PN94
MR ISSA: The others will be here, your Honour.
PN95
THE VICE PRESIDENT: Well, why don't you call them now.
PN96
MR ISSA: Could I please have an adjournment so I can make that phone call?
PN97
THE VICE PRESIDENT: The people that are appearing, that you're going to call in the court today, are they available? Are they here now?
PN98
MR ISSA: Yes. We have one here, your Honour.
PN99
THE VICE PRESIDENT: Yes. Well, is it convenient that you call that evidence now?
PN100
MR ISSA: If your Honour wishes.
PN101
THE VICE PRESIDENT: It would be appropriate if you'd call the evidence from those witnesses you wish to call. Who do you wish to call first?
PN102
MR ISSA: I wish to call Leanne Pentreath, your Honour.
PN103
MR FRIEND: Your Honour, could we have all the witnesses out from this point on? I have no problem with [indistinct] the openings, but witnesses out, your Honour. If we could have an order for witnesses out.
PN104
THE VICE PRESIDENT: Witnesses out? Yes. Are there any other witnesses, proposed witnesses, present in the courtroom?
PN105
MR ISSA: We have Mr Frank Devries is also here. I believe that's an order.
PN106
THE VICE PRESIDENT: There's an objection to other witnesses being present while a witness is giving evidence. If those other witnesses could wait outside.
PN107
MR ISSA: Yes, no problem.
PN108
THE VICE PRESIDENT: Ms Pentreath.
PN109
MR ISSA: Ms Pentreath will give her evidence first and Mr Devries will wait outside.
PN110
THE VICE PRESIDENT: Yes. Ms Pentreath, could you come to the witness box please.
<LEANNE PENTREATH, SWORN [10.36AM]
<EXAMINATION-IN-CHIEF BY MR ISSA [10.36AM]
MR ISSA: Your Honour, with permission I'd like to show the statement made by
Ms Pentreath to her.
PN112
THE VICE PRESIDENT: Yes.
PN113
MR ISSA: Ms Pentreath, is that the statement that you made regarding the variation as to hours?---That's correct.
PN114
Your Honour, I'd like to tender that document as evidence.
EXHIBIT #i1 WITNESS STATEMENT OF LEANNE PENTREATH
MR ISSA: Ms Pentreath, please tell us where it is exactly you have your store?---Our store is situated about 25 minutes away from Echuca and west of Rochester. It's two hours straight out from Melbourne, directly north.
PN116
Now, you have currently opened your store trading hours from 8 am to 6.30 pm from Monday to Thursday, 8 am to 8 pm on Friday and on Saturday you open from 8 til one and 9 til one on Sunday, is that correct?---That's correct.
PN117
Now, how many casual employees do you currently employ?---Approximately 29.
PN118
And how many of those are junior employees?---Give or take how many come and ask for a job it can be about 25.
PN119
And of those casuals how many of them were previously employed under the two hour minimum engagement?---Less the five that we've taken on at the moment, all of them were employed on a minimum of two hours.
**** LEANNE PENTREATH XN MR ISSA
PN120
And what does this change under the General Retail Award mean to your store and your employees?---The changes actually created a problem from Monday to Thursday night that we've actually had to drop off one of our staff members each night after school because our school kids get on the business at quarter to 8 in the morning and it takes them an hour to get into Rochester or Echuca and it takes them an hour to get home. So they actually start work at half past 4 or quarter to 5. So their three hour work is actually our half past seven finish. And we've also got to have our senior staff with them to stay after hours for security reasons. So what it's actually done is our spread of work has actually increased, but we've actually got less people doing it so we've put less, we employ less of our staff during the week.
PN121
So it's ultimately a less sufficient use of your work force, is that correct?---That's correct.
PN122
Now, you state in your statement that you employed casuals, junior employees sorry, under a junior agreement?---We have a policy that any junior person who comes in the door and asks for a job they are given an opportunity to work with us. We're part of our community which is building social skills within our youth. We engage them so that they learn responsibilities, they learn respect, all the good things that basically you have as part of being in a great community, networking with other people. So you can't afford to knock them back. Our biggest problem is we have the 14 year olds that come in, they're eager to get their money, pay for their mobile phones, competition with the other kids. So you keep knocking them back until they're about 14 and a half. If they keep coming back what we do with them is we take them on on child employment agreements. Under the child employment agreement it actually states that they have to go home at 6 o'clock or sun down, whichever comes first, and there's a lot of other stipulations that have come in under junior employment. But these kids are actually our best employees because they're so eager and by the time they've actually learnt what to do and they get to 16 year olds and they're actually starting to think about all the other things that come into their minds, they can do the job without thinking about it and distractions. And a lot of them are actually the ones that are still there at 21 and 22. So our staff is actually made up of predominantly, other than two staff members at the moment, of our 40 staff of juniors that have come through from our community. And we've taken them on as part of our responsibility in our community and it is a great sense that we're actually doing something for our community. But at the moment we're crucified by this ruling.
**** LEANNE PENTREATH XN MR ISSA
PN123
After the employees reach the age of 15 onwards, are they still on the child agreements or do they move?---Once they turn 15 they don't have to have a child employment agreement. They can actually then work according to whatever the ruling is at the time and that's when they come back into their two hours, or 2.35, two and three-quarter hours that we actually had them on before. We also have a problem that when we have them on we also have a buddy system where they work with an older junior who's showing great responsibility, has got great standards. So they actually work with him rather than having a senior member of staff standing over their shoulder, which tends to scare them. We can't put the under aged kids on weeknights because we don't have the time to fit in after getting off the school bus and before knocking off to fit three hours in. So we can't actually take those kids on after school. The effect of this three hours has cut us back on training our kids after school because we have less at that time. We put less on at that time.
PN124
So while you do employ casual employees for longer than their engagement when your business requires it, there are in order to train more casuals sufficient in order for them to actually obtain work, a two hour minimum is what has worked for your store and for your employees, is that correct?---In the past we've had we put four juniors on of a night. So one is buddied with a new trainee that's learning the new skills of learning the systems and we have the other two actually work doing the jobs, but we have the senior staff member who is there as a supervisor. But under this ruling what we've done is because they have to work longer, we've had to cut back on training that staff member because it's costing us more. And we also have the problem with the staff members themselves. They don't want to be there for three hours. So we're struggling to actually fit the number of staff in two hour shifts.
PN125
Thank you. No further questions.
**** LEANNE PENTREATH XN MR ISSA
PN126
THE VICE PRESIDENT: Any other parties apart from the SDA wish to cross-examine this witness?
PN127
MR TINDLEY: No, your Honour.
PN128
THE VICE PRESIDENT: Mr Friend.
<CROSS-EXAMINATION BY MR FRIEND [10.44AM]
MR FRIEND: Ms Pentreath, I understand you close at 6.30 Monday to Thursday?---Yes.
PN130
And you say the students can't get back from school until quarter to five, is that right, 4.45?
---Four thirty, 4.45.
PN131
And when do they finish work if they start at 4.45?---They finish work at 7.30 now.
PN132
Seven thirty?---Now, yes.
PN133
Okay. What about previously?---Previously they were finishing at - we rostered them on to 7.15 to make sure they were actually getting their jobs done in case because we actually do pizzas, we're a full scratch bakery so we have a full range of - we're a general store. We're in the country. We have to offer to our customers a full variety of stuff. So we do pizzas and sometimes they might get a run of, say, 12 pizzas which we'll throw them out. So we roster them on to 7.15 and the rewards are there for them. It used to be their for them. If they actually finished and got all their jobs done before they could actually knock off at each night, they have to sign off on their job list.
**** LEANNE PENTREATH XXN MR FRIEND
PN134
All right. Just stay with the question for a minute. They used to finish at 7.15?---Yes.
PN135
And now they finish at 7.30?---That's correct.
PN136
And they start at 4.45?---Or 4.30, yes.
PN137
Or 4.30? So some of them can get back in less - we're talking school students here?---That's correct.
PN138
Okay. Some of them can get back in less than an hour from high school, can they?---Some do get home, but no.
PN139
So how is it that they start at 4.30?---They start at 4.30 because they are on the school business which comes out of Echuca and Rochester at 3.20, so they're actually in there at 4.30. They are actually paid three hours. That is not a problem.
PN140
Just follow my questions, Ms Pentreath. They start at 4.30. They can get there by 4.30, some of them?---Yes.
PN141
Some of them can't get there until 4.45, correct?---Yes.
PN142
So of the - you said you've got 29 casuals, is that right?---That's correct.
PN143
And 25 of those are juniors, is that right approximately?---Not necessarily. Of those 25 of them are students. Some are uni students.
PN144
Yes, that was my next question. How many are uni students?---We have five uni students and one resigned this year due to her uni commitments, but she'd been with us, she's actually 21 now.
**** LEANNE PENTREATH XXN MR FRIEND
PN145
Just follow the questions if you would. How many secondary students do you have? Nineteen, is that right?---That would be correct.
PN146
Yes, okay. And of those secondary students how many of them can get there at 4.30?
---You're looking at there's one bus that comes in late, so there'd probably be two on that.
PN147
Two get in at 4.45, is that right?---Correct.
PN148
And the rest get in at 4.30?---That's correct.
PN149
And you presently employ them until 7.30?---That's correct.
PN150
You previously employed them until 7.15?---That's correct.
PN151
Okay. And previously you were required to give them a 30 per cent loading as casuals, correct?---Under we were paying the award, but we actually pay them above the award.
PN152
Just follow the question. You were required to give them a 30 per cent loading as casuals previously, correct?
PN153
MR ISSA: Objection. Relevance? Casual loading is not in dispute here today. It's the variation here.
PN154
THE VICE PRESIDENT: I'll allow the question.
PN155
MR FRIEND: Your Honour, it's about question of - the witness's complaint is this is a cost.
**** LEANNE PENTREATH XXN MR FRIEND
PN156
THE VICE PRESIDENT: Yes, I'll allow the question Mr Friend.
PN157
MR FRIEND: Thank you, your Honour.
PN158
There was a higher casual loading under the old system than under the modern award, correct?---Correct.
PN159
Because your loading is now 25 per cent?---Correct.
PN160
MR ISSA: Your Honour, I don't mean to step in, but I'm not sure if counsel understands the transitional provisions of the modern award. The modern award hasn't changed in terms of the casual loading for people within the state of Victoria. So I think the witness needs to be aware of that prior to answering the question.
PN161
THE VICE PRESIDENT: I think it's inappropriate to make those submissions or an objection. You can make those submissions later. I'll allow this line of questioning unless you've got another basis for objecting to the questioning.
PN162
MR ISSA: Well, your Honour, in order for the witness to answer the question, the question needs to be correct. The witness is being asked a question, and I know we're traversing into submissions, but I'm being asked to answer a question and it's not correct.
PN163
MR FRIEND: Your Honour, we can deal with this in submissions. The point has probably been well enough made in terms of this.
PN164
What about sick leave for casuals, were they entitled to that under the old Victorian regime?
**** LEANNE PENTREATH XXN MR FRIEND
---No.
PN165
Not at all? You're sure about that?---Under the award that I read, no.
PN166
Okay. So you never provided sick leave to casuals?---No.
PN167
Okay. You've taken on five casuals, I think you said, this year?---We've actually taken on more than that.
PN168
How many have you taken on?---IN the last week we've picked up another two that have come in.
PN169
So you've taken on seven?---Correct.
PN170
And that's notwithstanding you're aware of what's happening with the modern award?---That's correct.
PN171
Thank you. How much is the uniform allowance that you pay?---We pay $1.25 per use per shift. Or $6.25 per senior staff member. But we actually pay a 5 per cent loading on top of the award that's actually paid.
PN172
Okay, let me try and understand this. Can you turn to paragraph 13 of your statement please. So $11.09, that's per hour I assume for 16 and under?---That's correct.
PN173
Can you tell me how that's calculated?---We've taken, based upon the hourly rate that we had, we've actually loaded up our juniors because under - - -
PN174
No, just tell me how it's calculated, not why?---How it's calculated? It's calculated based upon the value for our juniors working because - - -
**** LEANNE PENTREATH XXN MR FRIEND
PN175
No. I'm sorry, Ms Pentreath. I'm trying to get just the mathematics?---Okay. It's 25 per cent on top with it's the base - - -
PN176
Twenty five per cent on top of the junior rate, the hourly rate?---That's correct.
PN177
Plus?---Plus a 5 per cent loading.
PN178
And what about the uniform allowance?---Well, that's calculated into the 5 per cent.
PN179
So the 5 per cent represents the uniform allowance?---That's correct.
PN180
And that's something that you voluntarily undertake, the uniform allowance?---That's correct.
PN181
You require them to wear a uniform, I assume?---That's correct.
PN182
And who provides that?---We do.
PN183
And so what's the allowance for? Cleaning it?---That's what's written in the award.
PN184
Yes. You've given evidence that everyone who comes and knocks on your door who is a junior gets a job?---That's correct.
PN185
Is that something so far as you're aware of that is very common in the area around Lockington?---We are one of the only private large organisations. So it's part of our business to actually employ our juniors.
PN186
**** LEANNE PENTREATH XXN MR FRIEND
What about in Echuca, are there people there who you know that employ everyone that comes to the door?---I don't live in Echuca.
PN187
Pardon?---I don't live in Echuca, I don't work in Echuca.
PN188
So you don't know, you can't say. In your experience generally are you aware of anyone else who takes on every employee that knocks on the door?---I know that if we don't employ our juniors we're not giving them opportunities.
PN189
So the answer to my question is no you don't know of anyone else?---I know my beliefs. I know what happens if we don't employ our - - -
PN190
I understand that, Ms Pentreath. I understand that and I believe you. I'm just trying to know if you're aware of anyone else that does the same as you. Obviously what you're doing is very important to you and to the community and you feel strongly about it. But do you know of anyone else that does it?---I'm sorry, I haven't asked anyone.
PN191
Thank you. Thank you, your Honour.
<RE-EXAMINATION BY MR ISSA [10.53AM]
MR ISSA: Just to clarify, Ms Pentreath. When you say that your employees work until 7.30, that's on Friday when you run the pizza?---We open Friday nights until 8 o'clock which is pizza night.
PN193
Thank you very much. Nothing further, your Honour.
PN194
THE VICE PRESIDENT: Thank you for your evidence, Ms Pentreath. You may step down?---Thank you.
PN195
**** LEANNE PENTREATH RXN MR ISSA
You are free to remain in the court room if you like and you may leave if you wish to.
<THE WITNESS WITHDREW [10.54AM]
MR ISSA: Your Honour, we now call Mr Devries.
<FRANK WILLIAM DEVRIES, SWORN [10.55AM]
<EXAMINATION-IN-CHIEF BY MR ISSA [10.55AM]
MR ISSA: If it pleases, your Honour, I'd like to take the stand to hand this to the witness?---I have a copy.
PN198
Mr Devries, you are currently human resources manager for the Red Rock Management Group in Alexandra, is that correct?---Correct.
PN199
How many stores do you currently manage?---Nine.
PN200
And of those stores how many of those are under the General Retail Award?---None.
PN201
What is the basis of employment for your employees within your store?---What's that?
PN202
What do you employ them under, your employees? Do you have an agreement?---Yes. We have an enterprise agreement.
PN203
And is that for all your nine stores?---Yes.
PN204
What is the name of that agreement, Mr Devries?---It's the Master Grocers Association of Victoria SDA Red Rock Agreement.
PN205
Now, that MGAV SDA Agreement currently has a casual entitlement for engagement of two hours, is that correct?---Yes it is.
PN206
How does the two hour minimum engagement assist you with rostering in your store?---Well, in a number of ways. We employ quite traditionally, I think most supermarkets would be in a similar situation, but we employ a significant number of young students to assist with their path into employment, give them some pocket money before they leave the town to go to university or other pursuits. We employ somewhere, it varies, but sometimes between 15 to 26 young people during the evening for shelf stacking, trolleys, the general sort of things that supermarkets do. In our view (a) because we're country stores - - -
**** FRANK WILLIAM DEVRIES XN MR ISSA
PN207
MR FRIEND: The witness prefaced his next sentence "within our view" and if the witness could confine himself to his own opinion, in my submission.
PN208
THE VICE PRESIDENT: Yes. Mr Devries, if you could give your evidence based on your knowledge and you situation, your views?---Okay. We employ young people for two reasons. One is to give them an opportunity of part-time employment, an income, and the second is that once they finished school they're readily available to work short shifts and do the tasks that we would otherwise have to engage adult people to do. At the same time I should add that that is an option available to us, but as part of a community, we're community stores, all of our people come from our local community as do the students and we believe that that's just the way we do it.
PN209
MR ISSA: And you said at paragraph 4 of your statement that you are a former secondary college principle, and a post compulsory education training consultant with the Victorian Education Department?---Correct.
PN210
Now, in your view and somebody who has obviously quite a lot of experience in dealing with children, how would a two hour minimum casual engagement benefit an employee at school as opposed to a three hour engagement?---Well, by the time the students have finished school and head off to the - I mean we're local so they can walk, basically walk. Some of them, 40 per cent of the students at the school in Alexandra, for example, come in by bus. But for those who are from the local community, by the time they start at around about 4 o'clock and finish around six to do their tasks, they can then go home, have their dinner and do whatever homework or studies that they need to pursue. Most of the kids are from 15, 16, 17 years of age, nearing their final years, doing their final years of schooling.
PN211
**** FRANK WILLIAM DEVRIES XN MR ISSA
And in your opinion it would be more beneficial to them to be engaged of a two hour minimum that you currently have under the MGAV agreement as opposed to the three hour?
---We believe - sorry. That's it certainly benefits the students and still leaves plenty of time for them to go back with the family and then do their studies.
PN212
Now, from a business point of view in your opinion is the two hour engagement of casuals that you are currently able to engage them for, is that a more efficient use of your resources?
---It gives us an amount of flexibility that we wouldn't otherwise have. The loading periods and the shelf stacking that occurs at those after school times, it's important that we get those done quickly. We don't really want people working after our closing time at 8 o'clock. There's all sorts of implications for that. So it does give us a great deal of flexibility.
PN213
Thank you, your Honour.
PN214
THE VICE PRESIDENT: Do you wish to tender the statement of Mr Devries?
PN215
MR ISSA: Yes.
EXHIBIT #I2 WITNESS STATEMENT OF FRANK WILLIAM DEVRIES
THE VICE PRESIDENT: Anyone else apart from the SDA wish to cross-examine this witness?
PN217
MR TINDLEY: No, your Honour.
PN218
THE VICE PRESIDENT: Mr Friend.
<CROSS-EXAMINATION BY MR FRIEND [11.01AM]
**** FRANK WILLIAM DEVRIES XXN MR FRIEND
MR FRIEND: Mr Devries, in paragraph 9 of your statement you deal with casuals employed at four of your stores. Each of those stores is open seven days, 8 am to 8 pm?---Yes, correct.
PN220
There is no difficulty in terms of the students fitting in a three hour shift after school one night a week, is there, in terms of the opening hours?---Sorry, I'm not sure.
PN221
The students are available after school to start work before 5 o'clock, aren't they?---Yes.
PN222
So they can fit a three hour shift in, if there were one, in your stores before closing?
---There's no doubt they could.
PN223
You say that if you didn't have the option of two hour shifts at the moment under your current agreement you would perhaps have to engage adults to do some of the work, is that right?---It doesn't necessarily follow that that's the path we would take, but obviously it would impact, in my view, it would have an impact.
PN224
What other path could you take?---Well, we could engage adults, our permanent workforce, to do the same tasks and as I've stated in my statement it's certainly we could get the same job done in possibly a similar amount of time with less people, you know, with no greater cost. Like I'm saying, it's not a costing, it's more of a community thing for us.
PN225
It's not a cost thing as far as you're concerned, it's really about whether the students are working too long if they work for three hours? That seems to be the main point you're making?---The main point is that exactly. If students are doing their Victorian Certificate of Education, for example, and most of them are, we have very few 15 year olds, then their study workload is significant, I believe. Certainly at certain times of the year it will build up.
**** FRANK WILLIAM DEVRIES XXN MR FRIEND
PN226
It builds up around exams and particularly for the year 12?---Absolutely.
PN227
I mean, that's not such a consideration for the year 11 students, is it?---No it's not, but that's not to say that their studies aren't as important than those who are working towards exams.
PN228
And they might play sport after school sometimes as well?---Absolutely, yes.
PN229
Or even be available to work at the weekend sometimes, correct?---And some of them do, yes.
PN230
Yes. And you wouldn't expect them to be studying all the time, every night and all weekend?---No.
PN231
That would be bad for them?---Well, I don't agree with that.
PN232
Are you aware that apart from Victoria almost throughout the whole of Australia there has been a three hour minimum for engagement of casuals for many years? Are you aware of that?---No.
PN233
Does it surprise you that that's allowed to continue given your views about the need for there to be a two hour minimum for the welfare of the students?---It doesn't surprise me, but I really can't comment on how - - -
PN234
It's possible that people could have a different view about that, whether it needs to be three hours or two hours?---It's always possible.
PN235
Yes. And you see that as being a view that could be valiantly held?---True.
PN236
**** FRANK WILLIAM DEVRIES XXN MR FRIEND
Yes. Now, in terms of the other matter you raise which is the home deliveries. How are the home deliveries made?---We have delivery vans. Some of them are refrigerated, some are not. Depends on the nature of the delivery. And we engage casual employees, or a casual employee, in the Alexandra store and particularly that's the one I'm most familiar with. We also use permanent staff at the Yea store, for example. So the minimum casual rate is not relevant.
PN237
Yes, it doesn't apply?---But certainly in Alexandra it suits the person to work - I mean, there's never less than two hours that he's in the store. But it suits the person and gives him the flexibility to the critical times when the deliveries are made.
PN238
So this person is, I take it, not a school student?---No, no. It's an adult.
PN239
And it suits him as an individual to have a two hour shift for that?---Yes.
PN240
But you do the deliveries for your other stores as well?---This person doesn't, no.
PN241
No, but someone else does?---Other stores have, they do the deliveries.
PN242
And they're not done by someone on a two hour shift?---No. They're generally done by either permanent or a casual staff who have other duties as well.
PN243
Yes, all right. Can I ask you this, perhaps going back to the students' two hours. In your view would it perhaps be even - sorry, I withdraw that. I'll rephrase it. In your view is two hours too long? Should it be reduced to one and a half hours?---I can't see the need. I don't think.
PN244
THE VICE PRESIDENT: Mr Issa?
PN245
**** FRANK WILLIAM DEVRIES XXN MR FRIEND
MR ISSA: Nothing further, your Honour. Thank you.
PN246
THE VICE PRESIDENT: Thank you for your evidence, Mr Devries. You may step down?
---Thank you.
PN247
You are free to remain if you wish.
<THE WITNESS WITHDREW [11.07AM]
THE VICE PRESIDENT: So your third witness, Mr Issa, is Ms Fitzpatrick?
PN249
MR ISSA: Yes, your Honour.
PN250
THE VICE PRESIDENT: And she is not able to attend. What do you propose in relation to her?
PN251
MR ISSA: She is available to give her evidence by telephone, your Honour.
PN252
THE VICE PRESIDENT: And is available now?
PN253
MR ISSA: I believe so, yes.
PN254
THE VICE PRESIDENT: Yes, okay. Well, we might adjourn for a short time while that telephone link is established and we'll proceed to hear her evidence. We'll adjourn for a short time.
<SHORT ADJOURNMENT [11.08AM]
<RESUMED [11.17AM]
PN255
THE VICE PRESIDENT: Mr Issa, you wish to now call Ms Fitzpatrick?
PN256
MR ISSA: Yes, your Honour, I do.
PN257
THE VICE PRESIDENT: Ms Fitzpatrick, are you on the phone?
PN258
MS A FITZPATRICK: Yes, I am.
PN259
THE VICE PRESIDENT: My associate will now ask you to take the oath or affirmation.
<ALLYSON MARGARET FITZPATRICK, SWORN [11.18AM]
<EXAMINATION-IN-CHIEF BY MR ISSA [11.18AM]
MR ISSA: Can you hear me, Allyson?---Yes I can.
PN261
Ms Fitzpatrick, your store is located in Boort, is that correct?---That's correct.
PN262
Now, in your statement you state that is one hour north of Bendigo and an hour south of Swan Hill?---Yes.
PN263
Now, you have stated your store trading times to be Monday to Friday 9 am to 6 pm, Saturday 8.30 to 1 pm and Sunday 10 am to 1 pm, is that correct?---That's correct.
PN264
Now, you employ casual employees, do you not?---Yes we do.
PN265
And how many casual employees do you currently employ?---Casual employees? We have 13 junior casual employees and five senior casual employees.
PN266
And those junior casual employees that you hire, when do you employ them? When do they work for you?---Now they only work Saturdays and Sundays.
PN267
And why is that?---Well, prior to this they used to work weeknights after school, but due to the fact that we close at 6 pm and they don't finish school until 3.30 pm we are now limited to employing them on a weeknight.
PN268
Okay. Now, your statement is dated 22/03/2010, is that correct?---That's correct.
PN269
Now, is that a true statement?---Yes it is.
PN270
Your Honour, I'd like to tender this statement as evidence?---I'm sorry, I missed that.
**** ALLYSON MARGARET FITZPATRICK XXN MR ISSA
PN271
No, that's okay Allyson. I'll ask the question again.
EXHIBIT #I3 WITNESS STATEMENT OF ALLYSON MARGARET FITZPATRICK
MR ISSA: Ms Fitzpatrick, are you still there?---Yes I am.
PN273
Now, what happens when employees first start in your store? Sorry, casual employees, what happens when they first start in your store?---The difference between junior and senior casuals, so in reference to the junior casual, generally we start them on Thursday after school working [indistinct] so packing to the shelf. That can be a shift, depending on size of the load, anywhere from probably two hours to up to four hours. Once they've completed that, and that usually goes on for a month or so, maybe longer, then we start to train them in the store itself on the registers, working in the deli. The training for that was done on a Monday night and in the deli on a Wednesday night, but because of this new implementation we are now unable to do that.
PN274
So what do you do now as a result of the changes?---Prior to the changes we had just had one new employee. So we sort of, we've worked it out so we've trained her a little bit here and there on the weekends, which is not the best situation but that's how we've had to deal with it. And since then we haven't been able to take on any new juniors because we can't see where we're going to be able to train them.
PN275
And what about senior casuals?---Senior casuals are generally working, they've been trained to work permanent shifts in the store. So they'll come in and they will work a shift on several occasions with the person that they're going to be taking over from, or the person that they're probably going to replace on holidays and so forth. So that isn't such an issue.
**** ALLYSON MARGARET FITZPATRICK XXN MR ISSA
PN276
So the impact that the change to the minimum casual engagement of three hours to your store has meant that casual employees, particularly the junior ones, aren't able to work weekdays? Is that correct?---I'm sorry, I didn't hear that.
PN277
The change to the award variation, how it's now three hours instead of two, has that meant that you can not employ junior casuals on weekdays?---That's correct.
PN278
Is that any, or is that you had to reduce the number?---Any. We can't employ any because of their schooling time.
PN279
I have no further questions, your Honour.
PN280
THE VICE PRESIDENT: Any other party apart from the SDA wish to cross-examine this witness?
PN281
MR TINDLEY: No, your Honour.
PN282
THE VICE PRESIDENT: Ms Fitzpatrick, I'm going to ask Mr Dowling of the SDA to ask you some questions. He has some questions for you?---Certainly.
<CROSS-EXAMINATION BY MR DOWLING [11.23AM]
MR DOWLING: Ms Fitzpatrick, you have told the Tribunal that you had 13 junior casual employees at the moment. Is that correct?---That is correct.
PN284
And you don't work those junior casuals on a weeknight? That's your evidence?---Not now, that's correct.
PN285
So all of those 13 juniors work on the weekend, is that correct?---That's correct.
PN286
**** ALLYSON MARGARET FITZPATRICK XXN MR DOWLING
And you have not taken on any new junior casuals since 1 January of this year?---That's correct.
PN287
Have you taken on any other casuals?---I've taken one senior casual who is now a permanent part timer.
PN288
And have you taken on any permanent part timers?---No.
PN289
Your evidence is that the store is open until 6 pm on a Monday to Friday?---That's correct.
PN290
And for three and a half hours on a Saturday and three hours on a Sunday?---That's correct.
PN291
And the junior casuals are currently working the three or three and a half hour shift on Saturday?---Yes they are.
PN292
And a three hour shift on a Sunday?---It's actually 3.25 hours and 4.75 hours because they come in prior to us opening.
PN293
Okay. So those junior casuals work hours outside the store hours?---Yes they do.
PN294
And your evidence is also that junior casuals do night fill at least on a Thursday?---Yes.
PN295
And they do that for up to four hours?---Yes they do, but we've had to cut that back to only one.
PN296
And that night fill is also outside store closing hours?---It can be, yes. Usually is. .
**** ALLYSON MARGARET FITZPATRICK XXN MR DOWLING
PN297
And your evidence is that when you train the junior casuals you train them on the weekend?
---Well, that's the problem that we're having at the moment. Prior to the change in legislation we would train them during the week. That would [indistinct] the night fill and then we were supplementing their training on weekends. Then we would train them on the registers during the week.
PN298
Are you saying the night fill was part of their training?---Yes.
PN299
So there's still, in terms of school hours, they're still able to do night fill training on a Thursday?---Not now because we're a small country town and it's become a lot smaller and to allow for the time constraints with the three hour minimum we had two dismissals of the junior casuals working the load because we can't stretch it out to three hours.
PN300
Are you saying your work is reduced in recent months? The amount of work you had has reduced in recent months?---Yes it has.
PN301
Okay. If that hadn't been the case there is no reason why the junior casuals couldn't accommodate three hours after school on a Thursday?---Yes and no. It really is a week by week situation. It depends on size of our load and it also depends on the amount of staff we have.
PN302
So it's a week by week proposition because of your work load?---Pretty much, yes.
PN303
Okay. The permanent part timers, you say you employ 13 permanent part timers?---That's correct.
PN304
**** ALLYSON MARGARET FITZPATRICK XXN MR DOWLING
Do they seek additional hours from you? Do they come to you and say I'd like to work more hours?---Occasionally that has happened, but not recently no.
PN305
You've given them additional hours in recent times?---Yes.
PN306
They have obtained additional hours to cover the after school hours for casuals?---Yes.
PN307
The junior casuals you have described, are they all secondary school students?---Yes they are.
PN308
And the senior casuals, does that include tertiary students?---No it doesn't.
PN309
Okay. You've also said your evidence is that there's a waiting list of junior casuals?---Yes, there is.
PN310
And there's a waiting list of other people who'd like to be permanent part time?---I had a few, but that's the minimal allowed.
PN311
It's a waiting list, but a small waiting list?---Yes. It's more the kids at school looking for part-time work.
PN312
But there are permanent part timers also looking for work?---Yes, there are.
PN313
There's no shortage of people to do the work that you have?---No, not every night.
PN314
Now, you've said that it's a benefit to the junior casuals to be employed. Is there a benefit for you in employing them as well?---Absolutely, yes, [indistinct].
PN315
And cost is one of those issues?---That is one of those issues, yes.
**** ALLYSON MARGARET FITZPATRICK XXN MR DOWLING
PN316
It's cheaper to employ them?---Yes it is.
PN317
And are you aware that there is some changes under the modern award from the Victorian State Award in terms of what you are required to pay junior casuals and what you will be required to pay them as of 1 July of this year?---No, I wasn't aware of that.
PN318
If I tell you that there will be a reduction in the casual loading for those junior casuals from 1 July of this year, is that a surprise to you?---Yes it is.
PN319
And there will be a reduction in the junior rates for those junior casuals as of 1 July, is that a surprise to you?---Yes it is.
PN320
And there will be a reduction in the sick leave obligations for those junior casuals as of 1 July?---Right.
PN321
Have you paid sick leave to the junior casuals that you've employed prior to 1 January this year?---No, I haven't.
PN322
Have you ever paid sick leave to casuals?---No, I haven't.
PN323
In terms of the hours you open, you said until 6 pm. There is no restriction, no legislative restriction on the hours you open, is there?---No, there's not.
PN324
It's certainly open to you to stay open later if you'd like?---I invite you to come and have a tour of Boort and you will totally understand why it would be completely impractical for it to open any later than 6 pm. In fact in the past the store used to close at 5.30. The reason that we open from 10 to 6 pm was to provide service for other employees in town to be able to shop after their business closes.
**** ALLYSON MARGARET FITZPATRICK XXN MR DOWLING
PN325
If your motive was the training of the junior casuals and that alone, you could easily accommodate it with store hours? That's true?---I wouldn't say I could easily accommodate it. We would be throwing money out the window if we were to do that.
PN326
There are other considerations for you? The amount of work you have, the amount of business that you'll receive, they're the things that you want to accommodate?---Which won't, you don't receive any extra business. In a town like this the people that come in at quarter to 6 in a rush to get their last minutes things would be the ones that would come in at 20 past six. We would not generate more business and it would be detrimental to our business to extend our trading hours.
PN327
Can I take you back. I asked you some questions about sick leave for junior casuals?---Yes.
PN328
The junior casuals that you have employed say prior to 1 January this year in the previous year prior to that, were they regular junior casuals?---I'd have to look back through my records. When you say regular, what do you mean by regular?
PN329
Did the have a regular after school shift?---We worked on a monthly roster that was always done in advance.
PN330
And was there some regularity with that roster?---To a certain degree, yes.
PN331
Nothing else, your Honour.
PN332
THE VICE PRESIDENT: Ms Fitzpatrick, I'll ask Mr Issa whether he has any further questions for you?---Okay.
**** ALLYSON MARGARET FITZPATRICK XXN MR DOWLING
<RE-EXAMINATION BY MR ISSA [11.32AM]
MR ISSA: Ms Fitzpatrick, with regard to the night fill what time does that start?---I'm sorry, could you just repeat that?
PN334
The night fill, what time would that start at your store?---The night fill?
PN335
Yes?---That is depending on the time that our courier gets our load back, but generally the senior casuals would come in at 3.30 because they're generally back by that time. And the junior casuals would come in after school and start at 4 pm. It's not always the case though.
PN336
Thank you very much, Ms Fitzpatrick. No further questions, your Honour.
THE VICE PRESIDENT: Thank you for your evidence, Ms Fitzpatrick. We will now terminate the telephone link?---Thank you very much. You're welcome.
<THE WITNESS WITHDREW [11.33AM]
PN338
THE VICE PRESIDENT: That concludes your evidence?
PN339
MR ISSA: Yes it does. Thank you, your Honour.
PN340
THE VICE PRESIDENT: Any other parties or applicants, parties in support of the applications, wish to make any opening statements or have any evidence to lead?
PN341
MR HALLS: Your Honour, I'd simply like to make an opening submission if I may.
PN342
THE VICE PRESIDENT: Yes, Mr Halls.
PN343
MR HALLS: Your Honour, I'd just like to commence by stating that like many other employee groups that are present today we have filed an application to vary the modern retail award and we do so based on what we believe is a necessity to meet the modern award objectives stated in our written submission. In the case of the ARA, the issues are surrounding the minimum engagement provisions. Really they're brought about by a particular organisation known as Terang Co-Op which has been the subject of much publicity in relation to the engagement of casuals earlier this year. Effectively that organisation, like many others in the state of Victoria, is moving from a two hour minimum engagement to a three hour minimum engagement from the beginning of this year.
PN344
But what we believe, this company is but one example, if you like, of a problematic situation where various employees have given petitions to Ms Gillard's office in relation to having the two hour plan reserved, that's of the modern award. Now, I understand that those employees and other members of the local community, which amount to around 1500 signatures, have [indistinct] their own issue. There has been no body or influence by the employer in relation to that and those employees are basically stating that they want a two hour minimum provision in the award so they can actually seek employment and obtain employment - - -
PN345
MR FRIEND: Sorry to cut off Mr Halls, your Honour, but evidence from the bar table is something we do take objection to.
PN346
MR HALLS: Well, your Honour, I merely mention that because it has been highly publicised. Of course I think everyone in this room would be aware how the media essentially treated that issue. We don't intend to lead evidence in relation to that in terms of witness evidence, as such, but I do wish just to make that clear. It is a well known fact what essentially happened at Terang Co-Operative and we believe that that may be the beginning, if you like, for wide spread problems [indistinct]. In terms of the application, your Honour, there is general consistency in many respects between the various groups that have put them forward, mainly of course to reduce the minimum casual payment from three hours to two hours. Bodies that have adopted that position include ourselves, being the ARA, the NRA, Master Grocers Association, the AFEI and also Western Australian Chamber of Commerce and Industry.
PN347
The matters raised in all of the submissions clearly illustrate concerns regarding the operation of that three hour minimum payment and the detrimental effects. I think at this present time we will continue to have both employees and employers with the retail sector. The ARA notes that witness evidence filed by the SDA, which I will look at in a bit more detail later on, primarily relates to New South Wales with some evidence submitted regarding the ACT, Queensland and Tasmania. But it does not appear to address other jurisdictions at any length even more, such as Victoria and Western Australia, except that's the case of Mr Ian Campbell, but obviously I will deal with that issue further on in these proceedings. Whilst we don't have any witnesses present for the purposes of this hearing, your Honour, and that is on the basis the witnesses were either unable or unwilling to attend the proceedings today, we do want to emphasise the importance of the contents of our submission, in particular the results of the member survey which was conducted by the ARA earlier this year. And I know that is attached to our submissions, with a copy for your Honour.
PN348
We submit that the SDA's opposition to employer arguments and also refusal to recognise the concerns really amounts to a failure to represent the interests of their own membership and also retail employees generally. Submissions made by employer groups, we say, ultimately serve both the interests of employer and employees. The ARA has also proposed a secondary position in its submission, as your Honour would be aware, which we also understand has been accepted by the SDA. There's quite the usual benefits that we believe that may actually [indistinct] both parties. The ARA has also had discussions with the ARA, as Mr Tindley alluded to earlier on, which has occurred since then and has presented a model clause which we are in support of for the purpose of this matter.
PN349
I understand that that clause has also been with the SDA and rejected outright. The ARA relies on submissions in support of the proposed variation. We believe we have satisfied the requirements of the Act in terms of the modern award objectives for that purpose. Your Honour, I was hoping that I could make some comments in relation to some separate issues raised by the SDA in relation to their submission and I'll try not to take up too much time with this. In relation to paragraphs 20 to 29 of the SDA's submission, they make a reference to proper authority to the applications and emphasising that variations must be necessary outside of the four yearly reviews that would be conducted by Fair Work Australia. As was indicated by the Master Grocers Association earlier, we certainly submit that the proposed variation is absolutely necessary and is certainly not one based on a matter of convenience.
PN350
In addition to the matters we have raised in our submission there has also been media publicity, as I have mentioned, in relation to the Terang Co-Op business and the effect that this minimum engagement is having on the employer and also its employees. In relation to paragraph 48 of the SDA's submission, your Honour, at paragraph 33 the SDA quotes submissions made by the ARA on 1 August 2008 about minimum engagements and the position that we put forward for that purpose. This appears to have been done based on the SDA's assertion that there is no changed circumstances or manifest error as far as the award term is concerned. As is clear from the quote that's included in their submission and our previous submission from that time, we did in fact seek the flexibility in relation to our engagements, as did many other employer reps which have been cited in their submission.
PN351
The ACTU's submission also refers to this in paragraph 45 and also further in our submissions at paragraph 49 where we sought a clause consistent with the Rail Industry Exposure Draft. So we just want to make it clear the ARA in that very early proceedings to do with the award modernisation may have considered a three hour award, rather a three hour minimum payment. But obviously there was [indistinct] matters to consider, if you like, in relation to the award modernisation exercise and clearly our position has changed since then. At paragraph 47 of its submission the SDA asserts that there has been no case of manifest error on the part of Fair Work Australia.
PN352
On this point, your Honour, I just want to refer you back to paragraph 23 of ARA's written submission that's been filed for the purpose of these proceedings in relation to [indistinct] spreadsheets that were filed by the AIRC last year in preparation for the modern award exercise. I just want to make it absolutely clear, your Honour, that the ARA is in no way accusing Fair Work Australia of anything as far as that is concerned, but as we indicated in our submission we did note what we believed to be an error in the comparative tables and we were concerned that that may have perhaps been influential in the decision making for selecting the three hour minimum payment, save Fair Work Australia is of the view that that is not the case and of course we accept that, your Honour.
PN353
Your Honour, at paragraph 53 of their submission they assert that there is no evidence or material supporting that a reduction in the minimum engagement will benefit casuals. The ARA submits that its member survey included in the written submissions does provide a clear indication of the benefits to be available to casuals if this proposed variation was accepted, as well as the significant drawbacks associated with retaining the current award provision. At 53(g) the SDA suggests a reduction in the minimum engagement will result in less training for casuals. I propose on this particular point we would submit that if the current provision is retained based on the feedback that we're receiving from our members, there may be no hours offered to employees and hence no training at all.
PN354
In relation to paragraph 53(h) and (j) they made submissions on possible risks and [indistinct] related to minimum engagements in the context of replacing part-time shifts and circumventing rest break entitlements, but we say there is certainly no uncertainty about those issues arising and as far as we are concerned there is no evidence to substantiate that. At paragraph 53(k) of their submission it's suggested that there has never been a demand by casuals to work shorter shifts and that appears throughout various points in their evidence. But on this particular point, again if I can revert back to the situation at Terang Co-Operative, the SDA would be well aware that demand does exist.
PN355
Employees are seeking to have a two hour minimum engagement so that they can actually be employed. It's as simple as that. And as we mentioned before, your Honour, we certainly believe that this is just one example of the situation that is going to come far more wide spread if the current provision remains in the award. Paragraph 55 of their submission in part focuses on job security for casuals, but I think it would be clear to everyone in this room that that is somewhat the inherent nature of casual employment both now and in the past. Many pre-modern instruments have also included terminology suggesting that there is no entitlements, or reasonably predictable hours of work, or perhaps if such employees are engaged on an as needs basis. So we suggest that that particular point isn't really just an inherent part of nature of casual engagement.
PN356
In relation to paragraph 56, that appears to suggest that whilst there may not be a case for reducing the minimums for all casuals, that there is or may in fact be a case for secondary students. That is certainly the way that I am reading that particular paragraph and it seems very clear what is being stated there. The fact that the retail industry employs the largest number of casuals in our view is only more reason why the proposed variation is appropriate and necessary. The suggestion at paragraph 58 and also 59 that three hour minimums have operated successfully for years in our view fails to really recognise the significant change that the modern award terms mean for many employers and for the number of issues, including but not limited to cost for employers, flexibility for employers and also a disadvantage to employees.
PN357
Paragraph 62 through to 64 makes suggestions that there will be no impact on employment costs. We just want to raise an issue on this, your Honour, about a comparison of sorts. When you look at the casual loadings and also minimum payment provisions, if we flick back to what occurred before the modern award commenced in Victoria, for example, we had a 33 and a third per cent loading with a two hour minimum engagement. That's what the state under the General Shops Award. Under the new system, eventually we will get to 25 per cent for three hours. Now, if a simple calculation is done between those two situations you will certainly see that the three hour minimum clearly results in an increase in cost, even though there is a lesser loading. So we can see that the situation as it stands where at this point in time, we don't even have a reduction in casual loading at this point in time, so there is still that 33 and a third per cent payable. That is obviously a significant cost to the position of employers.
PN358
And again, feedback that we have received from ARA membership suggests that there is concerns as well in relation to payment for time not worked as well as the issues of disadvantage and flexibility. Your Honour, I didn't really intend to go any further than that as far as our submission is concerned at this stage. Obviously we may make more submissions in terms of cross-examination later in the proceedings, but if your Honour has any questions before we do so I'd like to respond to that as best I can.
PN359
THE VICE PRESIDENT: Thank you, Mr Halls. I might mark your written submission, outline in this matter exhibit H1. That's the submission that used to be 46 numbered paragraphs.
EXHIBIT #H1 OUTLINE OF SUBMISSION OF THE ARA
THE VICE PRESIDENT: Then there is the support document one which appears to be a schedule of award provisions?
PN361
MR HALLS: That is correct. Your Honour, we have support documents at paragraph 45, 46 I should say. We have support document one which is schedule A which sets out a snapshot, if you like, of some pre-modern instrument provisions regarding casual engagements, and then it continues on to pass section 8 but we've actually got statements from some people. As I indicated earlier, your Honour, we will not actually have those witnesses present for the purposes of these proceedings and I accept that his Honour may place a lesser weight on those documents.
EXHIBIT #H2 SUPPORT DOCUMENT ONE OF THE ARA
THE VICE PRESIDENT: You are not in a position to call the witnesses that you've provided witness statements for?
PN363
MR HALLS: Unfortunately, your Honour, I understand that Mr Charlie Donovan is actually unable to attend because of other engagements regarding a problem in business develop. There is a shire meeting, as I understand it, [indistinct] regarding that area. And that the other two witnesses are not [indistinct] to give evidence [indistinct].
PN364
THE VICE PRESIDENT: Well, I don't propose to admit those statements into evidence. And then there's the support documents four. That's ARA survey analysis, is it?
PN365
MR HALLS: That is correct and one of the very important aspects of our submission. And that extent I think you've got some page numbers there which go up to page four, the actual survey, and then we also have under section 10 of our submissions support document four which is the comments in relation to the survey. So in the survey there was a section which allowed for the [indistinct] to write comments in, so we've included a snapshot of some of the key things.
PN366
MR FRIEND: Your Honour, there's a difficulty from our point of view with the survey and it's this. Because there are no witnesses being called to prove it, but we had a discussion of it under heading 6 paragraph 35 of the written submission which says that they conducted a survey and they got 336 responses. Your Honour, we don't know how many people were surveyed. It's a pretty significant factor. And if there's 336 responses from 337 people, that might have some significance. If it's from 3000 people, it might mean something different altogether. If it's something that goes to more than weight you haven't been given really one of the most fundamental pieces of information that's relevant to assessing the weight of the survey.
PN367
THE VICE PRESIDENT: You're saying it shouldn't be admitted, Mr Friend?
PN368
MR FRIEND: Yes, your Honour.
PN369
THE VICE PRESIDENT: What do you say to that?
PN370
MR HALLS: Your Honour, I can certainly clarify that issue for you and I apologies that perhaps we didn't make that clear in the submission itself. The ARA has an interesting membership structure like other employer groups who have a small membership, if you like, and then also subscriber and associate categories as well. Now, I understand if we're considering the numbers in total comprising all of those different categories that there is approximately 5000 members. But in terms of how many the survey was actually issued to, my understanding of instructions are that it was approximately 3000 members. So the responses are [indistinct].
PN371
MR FRIEND: Well, your Honour, it will go to weight, but I won't object to it.
PN372
THE VICE PRESIDENT: Yes. I will mark the survey analysis material. Are the reference in paragraph 11 part of the survey material, Mr Halls?
PN373
MR HALLS: On paragraph 11 of our submission?
PN374
THE VICE PRESIDENT: Support document five. It's got 11 in front of it. It was with a separate document.
PN375
MR HALLS: So it's [indistinct], your Honour. Support document five is really just setting out some of the references where we have actually [indistinct] submission so when we're making our [indistinct].
PN376
THE VICE PRESIDENT: I see. So that should be read as part of the submission?
PN377
MR HALLS: That's correct. I do apologise, your Honour. There appears to be a little bit of a mix up with the page numbers. I do apologise for that.
PN378
THE VICE PRESIDENT: I will mark the support documents four and the survey analysis and the respondent's comments from the survey.
EXHIBIT #H3 SUPPORT DOCUMENTS FOUR, SURVEY ANALYSIS AND RESPONDENT'S COMMENTS FROM SURVEY
THE VICE PRESIDENT: And that concludes the evidence you wish to call in the matter?
PN380
MR HALLS: Yes it does, your Honour.
PN381
THE VICE PRESIDENT: Any other opening submissions, or any evidence on behalf of the parties in support of the applications? Mr Mammone?
PN382
MR MAMMONE: Your Honour, it might be appropriate that I provide an opening and outline of our submissions.
PN383
THE VICE PRESIDENT: Yes.
PN384
MR MAMMONE: Just some housekeeping to start off with. I've got one document to hand up to the Bench and I've provided a copy to the ACTU and SDA. Submissions from ACCI were filed in accordance with the directions and I trust that the Bench has a copy of it. The two ACCI submissions, the first is dated 25 March which I will refer to as the primary written submission.
EXHIBIT #M1 SUBMISSIONS OF ACCI DATED 25/03/2010
MR MAMMONE: The second document is reply submission. It's dated 16 April.
EXHIBIT #M2 REPLY SUBMISSION OF ACCI DATED 16/04/2010
MR MAMMONE: Would it be appropriate, your Honour, to refer to the document that I've just provided to the Tribunal and mark that?
PN387
THE VICE PRESIDENT: Yes.
PN388
MR FRIEND: Can I ask your Honour not to mark that yet? We haven't seen it at all. It looks to be filled with a great deal of information that may or may not need to be investigated from our point of view. Perhaps it could be marked for identification, but we'd like to consider our position in relation to it.
PN389
THE VICE PRESIDENT: Your rights are reserved in relation to that and I won't mark it at this stage. I will wait for your response or any objections to it being tendered that's in the nature of submissions, or evidence, or some - - -
PN390
MR MAMMONE: Thank you, your Honour.
PN391
MR FRIEND: Thank you, your Honour. I'll address that as I proceed through my submissions as to the relevance of that document.
PN392
THE VICE PRESIDENT: Yes.
PN393
MR MAMMONE: ACCI has been involved in these proceedings as an intervener and as such our role is to provide what we say are the submissions of the instruction of the relevant section, which is section 157 and 158 and the evidence that we say is relevant. We support the joint applications that are before the Tribunal in this matter and we support the submissions made. I don't intend to repeat everything in our written submissions, but rely on those written submissions and just wish to take the Tribunal through some of the key points that we made. At paragraph 9 we outline what we think is the relevant statutory context to these proceedings. We note that your Honour, in a previous matter which included this section, outlined what the Tribunal's view was in regards to the threshold that must be met by an applicant and I will refer to that decision as Integrated Trolley Management Pty Ltd.
PN394
The relevant paragraph of that decision at paragraph 10, which I will paraphrase, in relation to whether Fair Work Australia would be satisfied to make a variation outside of a four year period to achieve the modern award objectives:
PN395
In my view this is a significant hurdle that any applicant in a matter under section 158 is required to meet. The clear import of this provision is that award variations outside the four yearly reviews will be the exception.
PN396
You continue, your Honour, to state:
PN397
In my view this means that an applicant must establish that the modern award's objective can not be achieved unless a variation is made.
PN398
It is for these reasons that ACCI strongly supports the applications before the Tribunal. In our submission it is inconsistent with parliament's intent when creating this mechanism to vary modern awards, such that to wait for the four yearly review to consider this issue would be extremely prejudicial not only to the employers that provide employment opportunities for not only juniors but for all employees, but for those very employees. That is the general thrust of our submission.
PN399
THE VICE PRESIDENT: Is it possible to raise this matter without that particular limitation in the two year review?
PN400
MR MAMMONE: In our submission no, your Honour. That two year period in relation to the transitional provisions I assume you're referring to?
PN401
THE VICE PRESIDENT: Well yes. The two year review under the Transitional Act.
PN402
MR MAMMONE: Your Honour, it's our submission that that is one mechanism to vary modern awards. At paragraph 14 we set out all of the mechanisms that are available to vary the modern awards. We recognise that's one of them, but in our submission it would not be something that would meet the modern award's objective, hence the very reason for these applications. Two years would be (a) too long to consider the issue. We're not sure what would actually emanate if there was reconsideration of the transitional provisions. To the extent that there was a variation, we're not sure what the variation would look like, or what it would necessarily do, but it would in essence prolong a problem that we say needs to be dealt with during these proceedings. If I could continue, your Honour?
PN403
THE VICE PRESIDENT: Yes.
PN404
MR MAMMONE: At paragraph 15 of the ACCI primary written submission we outline the objectives of the Act. We particularly note that the preamble in section 3 states that:
PN405
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.
PN406
One of the subsections, subparagraph (a), refers to providing workplace relations laws that are fair to working Australians are flexible for businesses and promote productivity and economic growth. Subparagraph (g) makes reference to the special circumstances of small and medium size businesses. That reference to social inclusion is repeated at section 134 of the Act which is the modern award's objective. At subparagraph (1)(c), the need to promote social inclusion through increased workforce participation. We believe that the inclusion of those words has some work to do. It's something that parliament turned its mind to when it passed the Fair Work Act and at paragraph 33 of the primary submission we set out what we consider that provision entails, simply that the Tribunal should enhance job growth and job opportunities and reduce unemployment.
PN407
We say that it's very important that parliament qualified the promotion of social inclusion with the words "through increased workforce participation". It's probably opportune that to talk about the document that I have handed up this morning. This document merely is additional material that illustrates the nature of unemployment in Australia and under-employment. Two concepts that we have referred to in our primary submission. We should note that at paragraphs 33 to 49 we do talk about social inclusion and reference to a number of materials, namely COAG's National Reform Agenda and the former Australian Fair Pay Commission's wage setting decision that does talk about the scarring effects of unemployment, particularly to juniors and youth.
PN408
It's within that context that we have provided this document that provides data relying on ABS material. The material itself that would be extracted would be uncontroversial. Whatever submissions we make as to the meaning of that material would be open to any party today to make whatever submissions they felt necessary. We consider that's relevant as part of the Tribunal's consideration of all of the issues before it. As to the evidence and weight we note that the Tribunal can form itself as it sees fit. It's up to the Tribunal as to what weight it attaches to material before it. We say that (a) the material is relevant and (b) it does accordance weight. However, it's open to the Tribunal as to what weight actually does attach to that document. If I could just backtrack, your Honour.
PN409
At paragraph 25 we do make a submission as to a reference in the explanatory memorandum. We note that the paragraph 5 to 7 in the explanatory memorandum to the Act makes reference to community standards and expectations. The underlying quote is:
PN410
That is the scope and effect permitted in mandatory terms of a modern award must be directed at achieving the modern award's objective of a fair and relevant safety net that accords with community standards and expectations.
PN411
We note that the phrase "that accords with community standards and expectations" is not replicated in the actual Act, however to the extent that it is relevant we do make a number of points at paragraph 25. In our submission, a fair safety net is one that provides an appropriate level for employees but does not do so at the cost of other objectives such as employment. (b) we say it should encourage job creation and promotion of employment opportunities for both the particular community and for the nation as a whole. (c) it should not threaten the capacity for junior employees, persons undergoing training or persons with a disability to obtain and remain in employment.
PN412
(d) we say it should encourage persons to gain a foothold in employment for the first time. And (e) it should not threaten skill formation by limiting employment opportunities, particularly for junior employees. We say to the extent that that is relevant, that is something that accords, in our submission, with community standards and expectations. At paragraph 30 of the primary submission we outline the objectives of the Act. At paragraph 32 we outline the objective of the modern award's objective.
PN413
We do go on to discuss other matters. I don't repeat them, but rely on the written submission. Just in terms of paragraph 78 which is the heart of the ACCI's submission, the context of the applications before the Tribunal is about striking a balance for both employers and employees. We say that the evidence before the Tribunal indicates that employees place a high value on having a job both from income perspective but also from a self worth and self esteem point of view and that parliament clearly intended that the Act encouraged persons to obtain and remain in employment whilst also providing for a safety net. We say that most employers will engage employees for more than two or three hours where work is required to be done and the current three hour minimum engagement period is too inflexible given the very diverse circumstances faced by retail employers and their employees and that more flexibility is required so that retailers are not prevented from offering work.
PN414
We say that the applications take a common sense approach to the issue and do not seek to reduce the terms and conditions to a base line of zero. Rather, they are to ensure that no person is refused work because of the minimum engagement rule. And we understand that if it was reduced to two hours there still will be circumstances where persons may be denied work. However, in recognising that there are various safety nets as outlined by the AIRC during award modernisation proceedings which set out previous pre-reform federal award and NAPSA instruments. There was no [indistinct] in-between provisions and relevant instruments. We did have regard to that research material and at paragraph 83 we say that from a list of 20 pre-reform federal awards, 29 enterprise awards and 70 state awards, there was a various range of minimum engagement periods.
PN415
We do note in our reply submission that it appears that a mistake was made by the AIRC in compiling the list with regards to one federal award, which was the Victorian Shops Award. The reference in the comparative material which we have extracted in our reply submission, and I trust that the Tribunal has that material which was an attachment, on the left-hand side - I should say that the heading of the spreadsheet is Retail Industry Comparison Federal Awards Type of Employment. On the left-hand side there's the number of headings, types of employment, with reference to the casual heading under the Shop Distributive Allied Employees Association Victorian Shops Interim Award 2000. A second dot point states minimum three hours per day.
PN416
That clearly is incorrect after having regard to the actual instrument which is two hours. As to what turns on that, I may leave that shortly as I go through the SDA and ACTU's submissions and some of those points that are made there in the context of the apparent error in the research material. We have had regard to the submissions by the SDA and the ACTU who oppose the applications. I think it's appropriate that I do reply and respond to those submissions now, but depending on the nature of the witnesses brought forward by the SDA I may need to provide some additional submissions in reply. With reference to the SDA's submission, we make the following submissions in reply.
PN417
Paragraph 20 of the SDA's submission the SDA contend that a single member of Fair Work Australia should not review a determination of a matter considered by the Full Bench of Fair Work Australia or the AIRC in the absence of changed circumstances or a manifest error by the Full Bench which made the modern award. To allow otherwise would enable a single member to vary or revoke an award made by the Full Bench on the same facts and circumstances simply because the single member formed a different view of whether the award did not achieve the modern award objectives. We do not see where the SDA contends either the Act would preclude a single member of the Tribunal exercising discretion under section 157, nor can we see any relevant case law that the SDA refers to to express their point in paragraph 20.
PN418
At paragraph 21 there is an extract of a Full Bench decision. We say that that may be relevant for applications under Part 10A proceedings, however this is an application under section 157. We don't see how that is entirely relevant, although we do say that - and I should add at paragraph 22 specific reference to the SDA, it's quoted as SDA v Pharmacy Guild of Australia, but it was an application to vary, not a contested matter. That was a matter under the Part 10A variation proceedings, not under this provision. Why that would be relevant to these proceedings we aren't sure, but we say that in any event no weight can be attached to what was decided in that proceeding.
PN419
The SDA's submission goes on to say at paragraph 28 that it is not sufficient that the variation be desirable or justified in a general sense. We agree with the SDA's submission. We say in these circumstances it goes beyond that and that is necessary to achieve the modern award's objective. And we say that the modern award objective can not be achieved unless the variation is made. At paragraph 29 another reference to some manifest error of the Full Bench. With respect to the compiling of the research material during the Part 10A proceedings, it does raise a legitimate question as to what the Full Bench did decide in setting a three hour minimum engagement rule.
PN420
Had there been no error in the document it may not be open to raise that as a legitimate matter, but we can't ignore the fact that there is an error in the document. There is no explanation that ACCI can find in the decisions setting down three hour minimum engagement period. There's an absence of any reason for that particular provision.
PN421
THE VICE PRESIDENT: You have referred to the range of pre-existing clauses at paragraph 84 of your primary submission. And footnote 21 is reference to the three hour example and that's a reference to the Victorian Shops Interim Award, which you say is actually a two hour minimum engagement. So that reference is incorrect?
PN422
MR MAMMONE: Correct. It's an incorrect reference in our primary material because it's based on a - - -
PN423
THE VICE PRESIDENT: Is it possible or is it anywhere in the materials, I can't immediately see, to have a complete list of the pre-existing awards that are relevant, and I know that's in some of the references such as Community Pharmacy Award that has not been subsumed by this award, that being separate pharmacy award, but all of the awards which have effectively been replaced by the modern award and an accurate list of the pre-existing provisions by reference to the categories that you have provided in paragraph 84?
PN424
MR MAMMONE: Your Honour, paragraph 20 is - sorry. Footnote 20 is a hyperlink to a decision and an attachment and the attachment (b) referred to in footnote 20 is actually the entire list of relevant, if I can say relevant, pre-reform instruments. It does not within the statements or decisions, which are the official or decisions of the Full Bench, there is no further information about setting out the casual minimum engagement periods. That information is contained in the research section of the AIRC and the way that is set out is for each modern award industry or occupation a list of comparative tables is set out. Those list of comparative tables, some of them came under the retail banner, others came under the pharmacy banner, others still under the fast food. Now, it's very difficult to - - -
PN425
THE VICE PRESIDENT: What I'm asking is are you able to provide a table of the relevant awards that should have been replaced by the modern, like this modern award, and a note as to its particular provision regarding minimum engagement for casuals?
PN426
MR MAMMONE: If the Tribunal requires that information, we can attempt to provide it.
PN427
THE VICE PRESIDENT: So it hasn't already been done, or is elsewhere in the materials? I think - - -
PN428
MR MAMMONE: I'm just not confident that all of the material in terms of the comparative schedules lists all of the pre-reform instruments and there are provisions that might - I can assist the Tribunal with the information possibly after today's proceedings, but it may be something that the - ask you indulgence for some time to get that information.
PN429
THE VICE PRESIDENT: Yes. I have certainly no problem with the indulgence as to time. The employers members of your organisation, I assume, collectively would have an understanding of what awards have been replaced by this modern award, NAPSAs or pre-reform awards.
PN430
MR MAMMONE: Yes, your Honour. And I do note the separate process that has recently been announced to consider what instruments have been subsumed under modern awards and to replace them. I'm not sure if there's any research material that's been put together. I think there has been, your Honour, a list of awards so I may be able to draw upon that information.
PN431
THE VICE PRESIDENT: Yes. Well, and perhaps it's a question more generally addressed to all of the parties that if there is that sort of comprehensive material, rather than a summary which contains at least one error that appears and doesn't identify all of the awards in the relevant categories, then that's something that I would certainly be assisted by.
PN432
MR MAMMONE: Indeed, your Honour, and we will undertake to provide that information as soon as I can.
PN433
THE VICE PRESIDENT: Yes.
PN434
MR FRIEND: Your Honour, I might be able to assist somewhat with that. The paragraphs under paragraph 16 of our submissions contain a number of attachments dealing with the retail industry in each state and setting out the name of each award or NAPSA which is relevant and the minimum engagement and casual loading in respect to those awards.
PN435
THE VICE PRESIDENT: It sounds like a very similar - - -
PN436
MR FRIEND: I don't know if it identifies which particular awards were subsumed into this award. That's the only issue that may need some clarification. But it may be a much simpler exercise for everyone if we start from that proposition at least.
PN437
THE VICE PRESIDENT: Yes. What paragraph was that?
PN438
MR FRIEND: Sixteen. And then does your Honour have the folder that I handed up?
PN439
THE VICE PRESIDENT: Yes.
PN440
MR FRIEND: If you turn to the tab for instance marked 16A, 16A the paragraph says the minimum casual engagement provisions of awards and NAPSAs in New South Wales and then you will see in the left column the name of the award or NAPSA, Shop Employees State Award New South Wales, casual shift length, the number of the clause and an extract of the clause.
PN441
THE VICE PRESIDENT: Yes.
PN442
MR FRIEND: And that is replicated for each state.
PN443
THE VICE PRESIDENT: Yes, thank you.
PN444
MR FRIEND: I will take your Honour to this in detail in submissions.
PN445
THE VICE PRESIDENT: Yes. I may have interrupted you unnecessarily, Mr Mammone.
PN446
MR MAMMONE: Indeed. And I thank counsel for the SDA for outlining that information, which I think a cursory glance may actually cover most of those instruments.
PN447
THE VICE PRESIDENT: Yes.
PN448
MR MAMMONE: If I can continue, your Honour. At paragraph 46 of the SDA written submission the SDA contend that the applicants have not and can not point to any changed circumstances since the decision of the Full Bench, 19 December 2008 and 2 December 2009, sufficient to empower a single member of Fair Work Australia to vary a determination of the Full Bench. Once again we say that there is no such test under section 157. Clearly the Tribunal has discretion under section 157 if there is material that would warrant the Tribunal exercising that discretion. Paragraph 47 repeats a similar ground, although they do say that what the Full Bench decided was clearly within its discretion and even if they were differently constituted might exercise discretion in another way, there is long standing authority that this is not a ground for overturning decisions on appeal, much less can it be a ground for a single member reversing to modifying a decision of the Full Bench. For the reasons stated before, we reject that submission.
PN449
Paragraph 51 of the SDA submission, the SDA is relying on an expert report of Dr Ian Campbell as to the effect of clause 13.4 in providing the minimum safety net terms and conditions for casual employees. We have had the benefit of reading the written report, but I may leave submissions as to that report until after the expert witness has given his evidence. Paragraph 53 the SDA contends that there is no evidence in the material to support the submission that the reduction in the minimum period of engagement of casuals result in any benefits for casuals or an increase in employment for school children or any other casuals. We say the evidence refutes that proposition in some cases. We don't make the claim of every single case, but we do say that there is evidence before the Tribunal that clearly establishes that the three hour minimum engagement period is having a real and negative effect in terms of employees seeking casual work or retaining casual work.
PN450
Paragraph 54(d), there's a reference to most casual employees want and work shifts in excess of three hours. We don't oppose that submission. However, they go on to say that:
PN451
Reasons for the desire to work at least three hours include the cost and time of travel to and from employment. Some casuals spend up to one and a half hours travelling to and from employment. Many employers have to offer shifts of at least four hours duration to obtain casual employees.
PN452
ACCI's submission in regards to this contention is that the SDA do not engage with the issue that there were engagement periods for less than three hours. They do not make any what we say are relevant submissions as to the effect of periods of engagement less than three hours that have been in existence. There is no witness statements from actual casual employees either engaged on a three hour minimum or lesser minimum or a higher minimum. The witness statements from the SDA are simply statements that go to what the witnesses would say are the effects of casualisation and what they say is the impact of minimum engagement periods and the desire for higher minimum engagement periods.
PN453
I could not find in the statements any evidence that would support that casuals spend up to one and a half hours travelling to and from employment. The reasons for the desire to work at least three hours may be a reference to what the expert witness has proffered in the report, but it's not clear from that paragraph. There at paragraph (e) the SDA contend that a reduction of the period of minimum engagement for casuals will create a further disincentive to attend for short shifts. We don't see any evidence to back up that proposition. On the contrary, there would be a disincentive for the three hour minimum period as the applicants' evidence would suggest. Subparagraph (h) is what we say highlights the general contents of the union's case in that is they appear to be not engaging with the proposition of a three hour minimum. Rather, it is about casualisation. Subparagraph (h) the SDA state:
PN454
A short period of minimum engagement will increase the risk that employers will replace part-time shifts with casual shifts. Two hour casual lunch time and afternoon shifts may replace a permanent four hour shift. With junior casuals this is more likely because their rates of pay are cheaper than their adult part-time colleagues.
PN455
Parliament has not outlawed casual employment. The Part 10A process did not specify that the Commission should create a minimum engagement period. The Part 10A process in the modern award, the request by the minister to the AIRC Full Bench talked about types of employment. It did not say whether the minimum engagement period should be established, the level of the minimum engagement period and whether there should be protections for people in casual employment. There was no such thing. The failure of the SDA to engage with the issue is something that we say is detrimental to their own case. To focus on the one side of the equation as they would see it as the benefits of a three hour compared to something else less fails to consider the other side of that equation as to the cost of the three hour minimum.
PN456
In our submission this is reiterated at paragraph 55 of the SDA's submission, particularly subparagraph (a) where they say that casual employees are a disadvantaged group with insecure employment and accordingly there is a greater need for their protection. The Tribunal is under requirement to, when an application is before it under section 157, to consider those statutory obligations. It does refer to a safety net and a range of other considerations. However, it does not require the Tribunal to turn its mind to the broader picture of types of working arrangements. Subparagraph (b) we say doesn't offer the Tribunal with much to go on in terms of this actual question. They say that the minimum period of engagement is one of the few protections afforded to casual employees under the Act.
PN457
The applicants are not asking for there to be no minimum engagement period. They are trying to establish what should that minimum be having regard to all of the statutory considerations. Once again we would refute the contention at paragraph 65 of the SDA's submission which states that there is no material or evidence provided by the applicants that establishes that a reduction in the minimum casual engagement would create employment growth. We say that the evidence suggests, in our submission, suggests that there is clearly evidence of an impact, the impact being casual employees will not be offered further shifts and existing casuals may not have further employment. We say that's before the Tribunal.
PN458
Your Honour, that concludes the opening with the reservation that I may need to address the expert witness evidence.
PN459
THE VICE PRESIDENT: Yes. Thank you, Mr Mammone. Any other opening submissions or evidence in support of the applications? Mr Tindley, apparently the video link to Adelaide is available at 2 pm Adelaide time, being 2.30 our time. It is being used from 1.30 for a short matter in Adelaide, 1.30 Adelaide time. It's feasible for your Adelaide based witness to give evidence by that video link?
PN460
MR TINDLEY: It is certainly feasible for them to give evidence via video link, but it is not feasible for them to give evidence by video link today. The proposition that I would like to suggest is that Mr Wareham be available, and this will require an early start tomorrow, but will be available at 9 am Adelaide time, which will be 9.30 Melbourne time. He is committed to the store today. He has a dental appointment tomorrow and can appear prior to that dental appointment. Again that would require the Tribunal commencing earlier tomorrow.
PN461
THE VICE PRESIDENT: And your other witnesses are not available until 4 pm by telephone?
PN462
MR TINDLEY: That's correct.
PN463
THE VICE PRESIDENT: Yes, okay.
PN464
MR FRIEND: We have our own witness available and any difficulties, your Honour, and discussion with those at the bar table, we will arrange for three witnesses of ours to give evidence this afternoon, one by video link at 2 o'clock if that's convenient to your Honour to Canberra, and then the other two will be here in person. So we may well use the afternoon productively in any event.
PN465
THE VICE PRESIDENT: Yes. Well, it sounds like a good idea. Mr Tindley?
PN466
MR TINDLEY: We've had discussions with the SDA and it would appear appropriate that we proceed with, save of any cross over of factual information that will create a difficulty with that.
PN467
THE VICE PRESIDENT: Yes, okay. Well, we will adjourn now until 2 pm. We'll have those three witnesses.
PN468
MR FRIEND: Three witnesses, your Honour. I should tell your Honour so your Honour has got an opportunity to read their statements. I won't take you through them. Mr Athol Williams will be the first by video link. The other two witnesses are Gerard Dwyer and Chris Ketter. Mr William's statement is found behind tab 7(b), Mr Dwyer behind tab 7(d), and
Mr Ketter behind tab 7(j) in the folder that we provided your Honour. Thank you.
PN469
THE VICE PRESIDENT: Very well. We will establish the video link for 2 pm. We will commence with that as the first witness.
<SHORT ADJOURNMENT [12.37PM]
PN470
<RESUMED [2.03PM]
PN471
THE VICE PRESIDENT: Mr Friend.
PN472
MR FRIEND: Thank you, your Honour. Can I call Athol Williams please.
<ATHOL WILLIAM WILLIAMS (via video), SWORN [2.03PM]
<EXAMINATION-IN-CHIEF BY MR FRIEND [2.04PM]
PN473
MR FRIEND: Mr Williams, could you state your full name again, please?
---Athol William Williams.
PN474
And your address?---(Address supplied).
PN475
Thank you, you're employed as a union organiser by the SDA?---That's correct.
PN476
And have been for many years, as set out in your statement?---35 years, yes.
PN477
Yes, and you made a statement dated 23 April of this year?---That's correct.
PN478
Do you have a copy of that with you in the witness box?---I do have, yes.
PN479
Are the contents of that true and correct, Mr Williams?---They are, yes.
I tender that, your Honour, please.
EXHIBIT #F1 WITNESS STATEMENT OF ATHOL WILLIAM WILLIAMS DATED 23/04/2010
MR FRIEND: Thank you, your Honour. (To witness) If you could wait there, please, Mr Williams.
THE VICE PRESIDENT: Mr Tindley?
<CROSS-EXAMINATION BY MR TINDLEY [2.05PM]
MR TINDLEY: Mr Williams, can you conceive of a situation where it would be appropriate for a casual employee to work less than three hours?---Well, it might be appropriate for him to work less than three hours. Whether they should get paid for less than three hours is another thing.
**** ATHOL WILLIAM WILLIAMS XXN MR TINDLEY
PN484
At paragraph 18 of your statement you refer to a situation where there was a two and a half hour shift on Saturday because of a restriction in trade?---Yes, that's right.
PN485
Did you think at that time that they should be paid for three hours?---I - the paragraph on my statement is different to the paragraph you mentioned. What paragraph did you mention?
PN486
Paragraph 18. You say, "Years ago the stores were regulated to close at 12 o'clock noon on a Saturday. There was the use of a two and a half hour shift, but this is no longer a restriction of trade"?---Right. That's right, yes.
PN487
So when there was a restriction - - - ?---The reason - do you want to know what the reason for that was? The reason for that was because the stores closed
and - - -
PN488
Thank you, so the reason was that the stores closed, so they weren't able to provide longer hours?---Well, one normally - when the store would close the people that they've employed weren't being employed any longer than that. That's not always the case but in that case - during - back then it probably was.
PN489
Sorry I didn't quite understand that last bit, Mr Williams. Can you repeat that for me?---Well, in the - back when I was referring to - what I refer to in that statement was that the stores were required to close at a certain time, and the people couldn't be employed usefully after that time during - back in - back those many years ago. But that's not always the case now. There's work that can be done after the store actually closes, because of the changes to technology and the changes to the way things are done now.
PN490
**** ATHOL WILLIAM WILLIAMS XXN MR TINDLEY
What if there's no work to be done after a store closes?---Well if there's no work to be done after a store closes then no doubt the person will not be working.
PN491
Are you aware of the circumstances of the making of this application, that as part of that there was a situation involving a retailer in a provincial Victoria town called Terang, that because of its trading hours wasn't able to provide employees with more than two hours' work?---I'm not fully aware of it but I've heard of it.
PN492
There is evidence before this Tribunal that young people in that town would prefer to work fewer than three hours to meet their needs in terms of work after school; do you think they should be prevented from doing that?---Look, I - - -
PN493
MR FRIEND: Well your Honour, if the witness answers the question I'm not sure what the relevance of his opinion about whether they're prevented or not is. It's based on the premise of the petition which is somewhat questionable anyway.
PN494
THE VICE PRESIDENT: I'll allow the question.
PN495
THE WITNESS: So can I have a repeat of the question, please your Honour?
PN496
THE VICE PRESIDENT: Yes, I think that's fair.
PN497
MR TINDLEY: There is evidence before this Tribunal that there are young employees who wish to work less than three hours but are prevented from doing so because of the award and becauseb of the trading hours of their employer. Do you think that they should be prevented from working a shorter shift?---No, I think that they should be paid for a minimum and the minimum they should be paid is at least three hours. The young employees might, for example, wish to work eight hours and be prevented from working that becauseb the employer doesn't want to pay them for eight hours.
**** ATHOL WILLIAM WILLIAMS XXN MR TINDLEY
PN498
If an employee is unable because of the trading hours of its employer to work more than two hours, is it reasonable for them to not be able to work that shorter shift, even if they want to?---No, I believe they should have a minimum of three hours and they start earlier.
PN499
But if they're attending school which prevents them from being able to start earlier?---Well if they're attending school that may be a problem. It's not a problem up here.
PN500
You say it's not a problem up there; is it not a problem up there because stores don't close at 5.30?---No, it's not a problem up here because sometimes the schools have different hours of attendance. But certainly it's - the other matter is the stores trade longer. But even if they don't trade longer, they're usefully employed for a full three hours or more.
PN501
You say in your statement that employers find it difficult to get staff to work if they don't offer four or five hours of work; that's correct?---That's correct.
PN502
Would it be your position that employers wouldn't be able to offer shorter shifts than that, or wouldn't get a take up of employees to work those shorter shifts?
---Yes, in the ACT that's a particular problem and that's advised to me, and I seen it for myself over the years.
PN503
So does it follow then that the only people who would work those shorter shift would be people who it suited their circumstances?---I - you - yes, it would be difficult to find someone who it would suit their circumstances in working two hour shifts in the ACT, with the transport situation, and parking, the cost of doing that, and the difficulties and the inconvenience.
PN504
**** ATHOL WILLIAM WILLIAMS XXN MR TINDLEY
In your role do you represent the interests of many clerical employees who are covered by the General Retail Industry Award?---Well, I did. I represent the interests of all the members of the unions represented in retail, that's right.
PN505
But predominantly they'd be employed under agreements?---Predominantly yes.
PN506
You've made reference in your statement to your interactions with a number of employees. At paragraph 7 you refer to an example of an employee at Rockmans?---That's right, yes.
PN507
Do Rockmans work under the award?---Rockmans is under an agreement.
PN508
Yes, so you don't provide any examples of the disadvantage to casual employees of a shorter shift, who operate under the award? Sorry Mr Williams, is the answer yes or no?---Yes, there is no - - -
PN509
Thank you?---I gave the answer no.
PN510
Sorry, I didn't quite hear. I apologise. No further questions, your Honour.
PN511
THE VICE PRESIDENT: Anyone else wish to cross-examine Mr Williams?
PN512
MR ISSA: Yes, sir.
THE VICE PRESIDENT: Mr Issa.
<CROSS-EXAMINATION BY MR ISSA [2.14PM]
MR ISSA: Mr Williams, at paragraph 13 of your statement you stated, "Some people do prefer to be casual because it allows them flexibility with their studies or family commitments, and they can alter their hours more easily than a permanent part-timer can". You then go on to say in the same paragraph, "Some of these people are students or senior women who once were permanent, took maternity leave and returned as casuals, to allow them flexibility with childcare and school holidays". Is that correct?--- That's right, yes.
**** ATHOL WILLIAM WILLIAMS XXN MR ISSA
PN515
Based upon that statement, Mr Williams, is it fair to state that employees enjoy the flexibility of being casual as they have rigid aspects of their life that they would like to fit around their work?---There are some, yes.
PN516
So the answer is yes, thank you. At paragraph 16 of your statement, Mr Williams, you state that, "Many permanent employees work after school hours. Part-timers work until 5.30. A two hour start for casuals would result in these workers losing their shifts in favour of cheaper junior casuals". Is that correct?--- That's right, yes.
PN517
Mr Williams, are you familiar with clause of the General Retail Award?---No, I don't have it in front of me. No.
PN518
Well if you were familiar with it you would understand that as part of hiring a part-time employee under the General Retail Award there are certain criteria that must be satisfied, including the hours worked each day, which days of the week the employee will work, the actual start and finishing times of each day, and that any variation will be in writing, as will the agreement"?---All right.
PN519
It makes paragraph 16 seem a little bit hollow now, doesn't it?---Well I don't know. That's my belief.
PN520
No further questions, thank you, your Honour.
THE VICE PRESIDENT: Mr Halls?
<CROSS-EXAMINATION BY MR HALLS [2.16PM]
MR HALLS: Mr Williams, I understand, according to paragraph 1 of your statement that you have some 35 years experience as an organiser?---That's right.
**** ATHOL WILLIAM WILLIAMS XXN MR HALLS
PN523
Paragraph 1 also indicates that you have responsibility in respect of ACT and New South Wales; has that actually changed over the years or have you always been based there and always had responsibility for those areas?---In the ACT and New South Wales, that's right, yes.
PN524
Mr Williams, at paragraph 12 of your statement you make reference to perhaps the lack of training that might be provided to casual employees in relation to even the three hour minimum engagement. I believe that you say later on in that paragraph that the situation would be even worse if the minimum period was reduced to two hours; yes?---Yes, that's right.
PN525
What if no hours are offered to the employee, is that a worse situation? No training, no hours?---I - I'm not following.
PN526
Well I'm simply asking you a question is it a worse situation for the employees in that context if no hours are offered? Wouldn't that mean there would be no training, no hours of work? Isn't that a worse situation than having a two hour minimum engagement?---So if they weren't employed?
PN527
That's correct?---Well they wouldn't be getting any training if they weren't employed, that's right.
PN528
Paragraph 14 of your statement, Mr Williams, you refer to many casuals having concerns about job security. Wouldn't you agree that that's somewhat the inherent nature of casual employment?---Well that's right. It's - the security with a casual is day by day hire.
PN529
At paragraph 15 of your statement you're making a very clear assertion that casuals definitely do not like two hours shifts; is that correct?---Look I - - -
**** ATHOL WILLIAM WILLIAMS XXN MR HALLS
PN530
At the beginning of paragraph 15 of your statement, the second line?---Yes, the statement I have has a paragraph 15 but I don't see that there's - "A two hour start for casuals", is that the one? "Which then would result in these permanent workers losing shifts - - -
PN531
You're suggesting that in your experience with casual employees over the last 30 years that they do not like two hour shifts?---Yes. Yes, that's right. Well my opinion is that - as I gave evidence before, that the casuals aren't keen on two hours shifts because, you know, of the problems associated with being able to cover the costs of getting to work - to and from work, and the other inconveniences around making yourself available for a two hour shift.
PN532
I understand, but it's somewhat of a generalisation, isn't it? I mean, you would agree that there are some casual employees that are willing to accept two hour shifts and are quite happy to work two hour shifts also?---Well I - no, I haven't found any.
PN533
You don't agree with that?---No, I haven't found any that - maybe in Victoria but up in the ACT I haven't found any.
PN534
PN535
That's fine, thank you. I've no further questions, your Honour.
PN536
THE VICE PRESIDENT: Mr Friend?
PN537
MR FRIEND: No re-examination, your Honour. If the witness may be excused, please.
THE VICE PRESIDENT: Thank you for your evidence, Mr Williams. You're excused from the witness box and from further attendance?---Thank you, your Honour.
<THE WITNESS WITHDREW [2.21PM]
MR FRIEND: Your Honour, I call Chris Ketter.
<CHRISTOPHER RONALD KETTER, SWORN [2.22PM]
<EXAMINATION-IN-CHIEF BY MR FRIEND [2.22PM]
MR FRIEND: Mr Ketter, could you state again your full name, please?
---Christopher Ronald Ketter.
PN541
And your address, please?---(Address supplied).
PN542
You're the secretary of the Queensland branch of the SDA?---That's correct.
PN543
Did you make a statement in this matter on 27 April? A declaration of 27 April 2010?---That's right.
PN544
Are the contents of that true and correct?---Yes, they are.
I tender that, if your Honour pleases.
EXHIBIT #F2 WITNESS STATEMENT OF RONALD CHRISTOPHER KETTER DATED 27/04/2010
Thank you. If you could wait there please, Mr Ketter?---Thank you.
THE VICE PRESIDENT: Mr Tindley.
<CROSS-EXAMINATION BY MR TINDLEY [2.23PM]
MR TINDLEY: Mr Ketter, how did you come to give evidence in these proceedings?---I was approached to give evidence.
PN549
By?---By the national office of the SDA.
PN550
Were there any discussions with other state secretaries, state branch officers, about giving evidence?---No.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN551
It's fair to say that in your statement your position is that you're fundamentally opposed to the idea of a two hour minimum shift?---That's correct.
PN552
In all the circumstances?---In all circumstances.
PN553
When you prepared your statement you turned your mind to all of the factors that would be relevant to the pursuit of an objection to this application?---I turned my mind to my experience with this issue and my understanding of my members and people working in the retail industry, particularly casuals, and their concerns about meaningful employment in the retail industry.
PN554
One of your concerns appears to be that a shorter shift for casual employees will undermine the employment of part-time employees?---Yes.
PN555
On what basis is that?---On the basis that if an employer has the flexibility to call somebody in for two hours, whereas a part-timer has less flexibility and can be called in for a minimum of three hours, then that could well see a preference going to casuals for the available hours.
PN556
So in your opinion there'd be a reduction in the hours of work for a part-timer and an increase in the hours of work for a casual?---There would be a displacement over time where part-timers would not be employed as much as casuals, and we would see a further increase in the number of casual employees in the industry.
PN557
But don't you say in paragraph 4 that, "The erosion of a three hour minimum engagement period would expose casuals who are seeking more meaningful employment to a reduction in their hours of work"?---To the - yes, to the extent that the individual would get a lower number of hours. But that - by having a two hour minimum you can have more casuals working the two hours.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN558
There's no basis for that. That hasn't happened historically, has it?---What hasn't happened?
PN559
When there has been a reduction in the minimum engagement of casuals, there hasn't been these effects that you talk about in your statement, has there?---When there has been a reduction in the minimum engagement for casuals we find that casuals do get shorter shifts.
PN560
You say in paragraph 30 there was in fact in the Queensland award a reduction in that casual minimum engagement?---Yes.
PN561
You provide no information subsequent to that to indicate that there was a reduction in the shifts offered to casual employees, or an undermining of the employment of part-time employees as a result of that change?---Well we currently have a situation where the minimum engagement period for part-timers and casuals is the same. My objection comes or concern comes that we would have a distinction between part-timers and casuals here.
PN562
But you have said that if we reduce it from there to two it will result in shorter shifts for casuals, but you provide no information that the reduction from four to three resulted in any reduction in shifts for casuals?--- Mr Tindley, my understanding of the industry is that employers usually use flexibility to a large extent, and for my understanding - and I allude to it in other parts of my statement, is that it's a very competitive industry and it's able to use whatever flexibility and cost saving measures that they can in order to run their business. So that my assumptions and conclusions are based on that knowledge of the industry over a fairly long period of time.
PN563
You say in paragraph 6, Mr Ketter, "I'm aware that high school students frequently work after school in supermarkets and are able to work a minimum of three hours"?---Yes.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN564
In supermarkets?---In supermarkets.
PN565
What are the trading hours for supermarkets?---Well supermarkets can generally trade until 9 pm in the south east - - -
PN566
But they are in a position to offer longer hours, longer shifts, a three hour shift for a casual employee?---Yes, they are.
PN567
Has there ever been a situation in Queensland where they haven't been able to offer longer shifts due to trading hours' restrictions?---The trading hours were changed in 2002 to go to 9 pm.
PN568
Have you ever been involved in the negotiation of agreements where it was taken into account the reduced capacity of junior employees to work after school hours?---Only to the extent a recent one was the Drakes agreement which is a peculiar one because it was - it's a South Australian based company where they do have some provisions in the South Australian award to this effect, and we - there were some discussions around that point. Yes, seeking to increase the minimum engagement period there in fact.
PN569
What about Coles Supermarket agreements?---What about them?
PN570
Has there ever been a recognition of the inability for secondary school students to work hours after school during the week because of store trading hours?---Not to my recollection, no.
PN571
Not in the Coles Supermarket agreement, and in particular I refer to North Queensland?---North Queensland is outside of the area of coverage of my union, but I have been involved in most of the negotiations with Coles Supermarkets and I don't recall anything being raised in that respect.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN572
Can you conceive of a situation where the trading hours of a particular business make it impossible for them to engage secondary school students after work[sic] for a minimum of three hours?---Well it depends what the trading hours - as you would be aware, in Queensland the vast majority of the stores don't have the trading hours restrictions. Only about 10 per cent of stores in Queensland are in the category of non-exempt, as we call them, which have the trading hours restrictions. So they generally do not have the requirement to close at 6 pm that exists for the larger stores.
PN573
Do you have any knowledge as to which types of businesses utilise the full extent of trading hours?---It has been increasing in recent times, so supermarkets were the first to utilise the first - the full extent of the trading hours. Some of the discount variety stores have started to increase their trading hours and in fact some department stores as well. But I haven't done a complete study of it, no.
PN574
Would you accept that there are a large number of retailers in Queensland who do not operate beyond 5.30, Monday to Friday, apart from the late night trade?---I would say there would be a significant number, yes.
PN575
Those significant number of employers are unable to engage secondary school students to work after the conclusion of their schooling for a minimum of three hours because of those restrictions?---It depends - that is entirely a self-imposed restriction.
PN576
So is your solution to this for employers to just open till 7 o'clock and then we can engage young people?---My solution would be that they should employ people for a minimum engagement of three hours.
PN577
Even if those employees want to work shorter shifts because it is their opportunity to work?---Look, I do not believe there are any people wanting to work shorter shifts.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN578
Any?---I don't believe so.
PN579
In your knowledge in Queensland?---In my knowledge. Over quite a considerable period of time we - as I've mentioned in my statement - frequently ask our members what it is that the union should be bargaining for in collective agreement negotiations and to the best of my knowledge not - on no occasion has anyone said they would like the ability to work less hours. People working in the retail industry are not doing so for their - you know, for enjoyment. They are doing so, so as to support their families and to try to support themselves in most cases. So it's a highly unusual situation.
PN580
How many casual employees have you spoken to about this issue in this application?---Only a couple in recent - - -
PN581
A couple?---About this particular application?
PN582
Yes?---Yes.
PN583
A couple?---Yes.
PN584
Who were they?---They were casual - we were seeking if there were to be any available witnesses to come to this hearing, to give evidence to the Commission. Who - are you asking me the identities of these people?
PN585
Who do they work for?---They work for a company called Witchys, which operates an IGA store, which is covered by the modern award.
PN586
Do you know what the trading hours of Witchy are?---No I don't. No.
PN587
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
Would they trade beyond 6 pm Monday to Friday?---I would think so, yes.
PN588
They wouldn't be under the same restrictions that the businesses that are the fundamental subject of this application are?---Those wouldn't but I did speak to another casual who worked in a small store that would be affected.
PN589
When was that?---When was it? It was about two weeks ago.
PN590
They weren't able to come and give evidence for you?---Unfortunately not, no.
PN591
So you don't have any evidence from any casual employees about their desire not to work shorter shifts?---I haven't conducted a survey specifically about your application, but my evidence goes to my understanding of what my members have been asking of this union for many years, and I'm very confident about the points of view I'm putting to you.
PN592
How many casual employees do you represent in Queensland?---Well, of our membership I would hazard a guess about 70 per cent would be casual employees.
PN593
Care to put a number on that then?---Probably two and a half - sorry, about 25,000.
PN594
25,000 casual employees?---Yes.
PN595
And not one of them is able to give you any evidence in this matter?---I
haven't - as I said, I have not gone out canvassing for evidence. I'm sure that if I did I would get a lot of people - - -
PN596
Well, with respect, you don't know, do you?---No I don't, but it's my opinion that it's a very contentious issue, as I have indicated in my statement. Our members are very surprised to know that there is no minimum weekly engagement period for casuals. The casuals are regularly used in our industry and they are sent home after a period of time if there's not enough work. It's a very insecure form of employment and - - -
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN597
Mr Ketter, if I could ask you just to keep your answers to the questions that are being asked?---Mm'hm.
PN598
So you say that there are approximately 25,000 casual employees?
---Approximately.
PN599
How many of those work under agreements, would you estimate?---The vast majority of them.
PN600
You don't obviously contend any data about that?---I'd have to - my best guess would be 95 per cent of them.
PN601
So a very small number of employees are engaged under this award - - - ?---Yes.
PN602
- - - for this, if your concerns are relevant. I've nothing further, thanks your Honour.
THE VICE PRESIDENT: Mr Issa.
<CROSS-EXAMINATION BY MR ISSA [2.36PM]
MR ISSA: Mr Ketter, you stated on questioning from Mr Tindley that you were involved in the negotiation of the Coles agreement; is that correct?---Yes.
PN605
That your solution for casual employees is a minimum engagement of three hours; is that correct?---Could you repeat that question please?
PN606
Your solution for a minimum engagement for casual employees under the award is three hours?---I advocate that, yes.
PN607
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
And that when you send out surveys to your members, when you ask them what the union should be bargaining for, you state that they tell you it should be for longer working hours; is that correct?---Yes.
PN608
Your Honour, I'd like to take this moment and read from an agreement that the SDA is a party to, the Coles agreement.
PN609
MR FRIEND: I don't know if there's only one Coles agreement or if there are several. It probably needs to be identified to the Tribunal.
PN610
MR ISSA: Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2008. Under clause 3.1.1(c) it states that, "Casual team members shall be engaged on an hourly basis with a minimum engagement of three hours on each occasion required provided that in Western Australia, South Australia, Tasmania and stores located in North Queensland secondary school students may be employed for a minimum period of two hours between 4 pm and 6.30 pm Monday to Friday". Having negotiated with the agreement are you familiar with that clause?---Look, I haven't looked at that clause for some time but I'm aware of it, yes.
PN611
So if you purport to represent the interests of members within - your Honour, sorry, would I be able to tender this as evidence?
PN612
THE VICE PRESIDENT: Yes.
PN613
MR ISSA: Thank you, your Honour. It also lists a grand number - a total of 10 - the grounds that the SDA is a party to, where (indistinct) argue that two hour minimum engagements or two hour exceptions that allow employees to work for two hours.
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
EXHIBIT #I4 COLLECTION OF AGREEMENTS TENDERED BY MASTER GROCERS AUSTRALIA
MR ISSA: So if, as you stated, you are as opposed to a two hour minimum engagement for casual employees, and that you are concerned about meaningful employment, exactly how did you arrive at this position whereby the SDA has agreed to agreements - - -
PN616
MR FRIEND: Look, we've got a lot of questions to ask, your Honour, before we get to the position of asking this witness that question. We have to be - - -
PN617
MR ISSA: Your Honour, the witness - - -
PN618
MR FRIEND: Sorry, if my friend would let me finish. A bundle of documents has been handed to him containing something which we're told says something. We don't know, and my friend has to establish, that the union is party to all of those agreements. It may well be. Then we have to find out if this witness had any involvement in it, and then so on. But you can't just hand a bundle of documents and then say, "On the basis of what I've told you about them, how about this?"
PN619
MR ISSA: Your Honour, the witness is the state secretary of the Queensland branch. I am asking about an agreement he has stated he has negotiated on behalf of members of, and as a state secretary of Queensland would have some knowledge - - -
PN620
THE VICE PRESIDENT: Have you provided him with a copy of it?
PN621
MR ISSA: I apologise, your Honour.
PN622
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
THE VICE PRESIDENT: Is it possible to provide him with a copy and draw his attention to a particular provision.
PN623
MR FRIEND: If Mr Issa was just asking about the one agreement. I took him to be asking about all of them, your Honour. If he's just asking about the one, and the witness has said he was involved in negotiating it, I don't have an objection.
PN624
THE VICE PRESIDENT: Yes.
PN625
MR ISSA: So I then - - - ?---Sorry, could you repeat that question for me, please?
PN626
Yes. If, as you state, you are as opposed to a two hour minimum engagement, why is it that under this agreement for Queensland Government Employees, school aged casuals are able to be engaged for two hours?---Well, the - I suppose the genesis of this clause relates to the history of the two hour minimum engagement for casuals in these other jurisdictions. So Western Australia, South Australia, Tasmania, I'm not an expert on what happens in those areas but I understand there is some history there - - -
PN627
Just with regards to Queensland?---And as far as North Queensland is concerned, as I indicated earlier the area of coverage geographically of my branch of the SDA goes up to Rockhampton. So I don't - we don't have members north of Rockhampton, which I think is the area which - to which this clause refers
and - - -
PN628
So because you have no members in North Queensland you've chosen not to seek a three hour minimum engagement for casual, because it doesn't apply to your members; is that correct?---Look, I - you have asked me the question as to why North Queensland is included in that particular clause. I couldn't tell you because I have no local knowledge of North Queensland. Our area of coverage does not extend to that part of the state, unfortunately and - although I was involved in the negotiations for the agreement.
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
PN629
So you have no answer? Your answer is you have no answer?---My answer is that - what I've said, which is I would say to you that the explanation for those areas having a lower engagement period relates to the various state awards that have applied historically in those areas. But as far as North Queensland is concerned I couldn't say to you exactly why.
PN630
So as state secretary manager - state secretary of the Queensland branch of the SDA you do not have a reason as to why for North Queensland there is a two hour minimum engagement?---Well, as I said, it's outside of the area of coverage of my branch of the SDA.
PN631
So just quickly, just to summarise, because it's outside of your coverage area it doesn't apply to any members that you may have, therefore it's none of your concern?---I didn't say it was none of my concern but I - you've asked me why that area has been included in that particular clause and I can say to you why I think the other parts of the country are included in that particular clause - - -
PN632
We'll focus on your area of Queensland - - -
PN633
MR FRIEND: Let the witness finish the answer to the question, please.
PN634
THE WITNESS: But I can't explain to you why North Queensland has a lower minimum engagement period for casuals. I think the history with Coles was that there was a separate agreement applying between the Australian Workers Union and Coles Supermarkets in North Queensland prior to the national agreement, and in bringing the national - the AWU state agreement into the national agreement, this particular provision was inherit - was inserted into the national agreement. So it would be a - I'm only giving a guess here - - -
PN635
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
MR ISSA: So inserted into the national agreement, however at paragraph 11 of your statement you stated that, "It would be unrealistic to believe that the employment of casuals for two hours would not result in a corresponding loss of employment to other employees in the store". You don't have any concerns about that?---My concern is that if you have employers who have the ability to employ people for a shorter shift, and have - - -
PN636
Which has happened under the Coles - - -
PN637
MR FRIEND: The witness is continually being interrupted by Mr Issa, your Honour. It is not fair questioning and I ask your Honour to direct Mr Issa not to interrupt the witness.
PN638
THE VICE PRESIDENT: I think Mr Ketter can continue with his answer?---So if you had the ability for casuals to work a two hour engagement period then if an employer has that extra flexibility, my concern, as I've expressed in paragraph 7, is that that means that employers generally gravitate to the employees which are the lowest cost and which have the highest degree of flexibility. That explains why so many casual employees are engaged in the retail industry and we have a declining proportion of full-time and permanent part-time employment. This would only seek - this would only further exacerbate that trend of casualisation of the industry.
PN639
MR ISSA: This issue isn't about casualisation of the industry. It's about minimum engagement of employment?---Well I think a consequence of the - a success of the application would be erosion of permanent employment.
PN640
But you have no evidence of that?---Only what I've just - I can't - I'd be repeating myself.
PN641
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
Thank you very much. No further questions.
THE VICE PRESIDENT: Mr Halls?
<CROSS-EXAMINATION BY MR HALLS [2.46PM]
MR HALLS: Mr Ketter, at paragraph 4 of your statement you suggest that there's no practical need for a two hour shift for casuals. Paragraph 4, if you can find it?
---Yes, that's what I say. Yes.
PN644
Then at paragraph 5 there's a statement at the end of that paragraph suggesting that if the minimum became two hours the (indistinct) provision would further disadvantage employees, correct?---Yes.
PN645
Do you think that that is a more disadvantageous situation than the employees not being offered any work at all?---Well some work is preferable.
PN646
Well that's not what is being put in question. Do you think it's a more disadvantageous situation than being offered no work at all?---Do I think what is a less - - -
PN647
The situation of a two hour minimum payment?---Sorry, could you repeat the question?
PN648
Do you think a two hour minimum payment is a more disadvantageous situation for employees than not being offered any work at all?---I think I have a problem with the premise of the question.
PN649
It's a pretty clear question I thought?---Well, I think that a two hour minimum engagement period should not be permitted, and it's not practical, and there's no need for it.
**** CHRISTOPHER RONALD KETTER XXN MR HALLS
PN650
Okay, so is it a yes or a no? Do you think that not having a job is more or less advantageous than a two hour minimum payment?---I think having a meaningful job is the more important of this - these proceedings.
PN651
At paragraph 10 again there's a reference once again to employees being profoundly disadvantaged by the reduction in duration of their shifts, with a specific reference to young employees. I suppose the question I just put to you is equally relevant for that purpose, and it's your position, I would assume, that there's no need for any special treatment of young workers, including school students?---No, I don't believe so.
PN652
I have no further questions.
THE VICE PRESIDENT: Mr Friend.
<RE-EXAMINATION BY MR FRIEND [2.48PM]
MR FRIEND: Mr Ketter, I think you said in your evidence but North Queensland; does the SDA have coverage of retail employees in North Queensland?---No, we don't. Historically my union has had coverage of the cities of Rockhampton and Gladstone and the area of the state generally south of Bundaberg. So north of Rockhampton and west of Rockhampton and Gladstone is the coverage of the Australian Workers Union.
PN655
Just about everything else in that area?---Yes.
PN656
Yes, thank you. You were asked about casuals that you spoke to as potential witnesses; were those people in favour of a reduction to two hours?---No, they weren't.
PN657
**** CHRISTOPHER RONALD KETTER RXN MR FRIEND
Why aren't they giving evidence?---Well, one of them is a - well, two of them are school children and they were not able to come to Melbourne, and having approached their parents they were reluctant to do so; and the other casual that I approached, who I mentioned was in a different type of store was also opposed to it but was reluctant to come to Melbourne, to miss out on a day's employment; and the way he explained it to me was, you know, that might jeopardise his position if he was to absent himself.
PN658
Thank you Mr Ketter. Nothing further, your Honour. If the witness may be excused.
THE VICE PRESIDENT: Thank you for your evidence, Mr Ketter. You may step down?---Thank you.
<THE WITNESS WITHDREW [2.50PM]
MR FRIEND: I call Gerard Dwyer, if your Honour pleases.
<GERARD DWYER, SWORN [2.52PM]
<EXAMINATION-IN-CHIEF BY MR FRIEND [2.52PM]
MR FRIEND: Mr Dwyer, could you state your name please?---Gerard Dwyer.
PN662
You don't need to speak into the microphone like that. No, you need to turn it around, sorry. It doesn't amplify. It's for the recorder. Your address please?
---(Address supplied).
PN663
You are the branch secretary treasurer of the SDA New South Wales branch?
---Yes.
PN664
You made a declaration in this matter of some 30 paragraphs; is that correct?
---Yes.
PN665
Are the contents of that statement true and correct?---Yes.
I tender that, if your Honour pleases.
EXHIBIT #F3 WITNESS STATEMENT OF GERARD DWYER
MR FRIEND: Thank you, your Honour.
THE VICE PRESIDENT: Mr Tindley.
<CROSS-EXAMINATION BY MR TINDLEY [2.53PM]
MR TINDLEY: Mr Dwyer, how much interaction do you have with casual employees, direct interaction?---Direct interaction? At various meetings, quarterly meetings and in some delegate's training courses.
PN670
How did you come to give evidence in these proceedings?---The current interaction with casuals and my interaction with casuals over a long period with the union.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN671
Were you asked to give evidence?---I was asked if I would like to give evidence.
PN672
Sorry?---Yes.
PN673
Did you discuss the giving of evidence with other state secretaries?---No.
PN674
But you couldn't provide the information as to why a number of state secretaries haven't given evidence in this matter?---No.
PN675
You're fundamentally opposed to the idea of a two hour minimum shift for casuals; would that be correct?---Yes.
PN676
There are no circumstances where you would consider a two hour minimum for casuals to be appropriate?---In a particular bargaining context perhaps.
PN677
What do you mean by that?---In bargaining, the particular nature of an enterprise, it may be something that's taken into account. But that would then be addressed in how that provision interacted with a whole host of other provisions in that agreement. But it - - -
PN678
Has that ever been the subject of an agreement you've negotiated?---Yes.
PN679
You've negotiated agreements where a two hour minimum has been implemented?---It is not common but there are some.
PN680
Can you name one?---I believe the Target Enterprise Agreement might have a two hour shift.
PN681
That applies generally?---I can't recall the specific application and/or restrictions on that.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN682
If I was to suggest to you it was on a state by state basis would that come as a surprise to you?---I think that's - no, because I think that might be going back to particular awards in those jurisdictions.
PN683
What if I say to you it wasn't based solely on the awards in those jurisdictions. It may also be based on trading hours in those jurisdictions?---I couldn't comment on that.
PN684
But you are aware that there are agreements that have been negotiated with two hour minimum shifts?---There are a limited number, yes.
PN685
You say that it's in the context of other conditions of the agreement; what other conditions would they be, as an example, in a negotiation that you've been involved in?---High rates of pay, special provisions that provide leave for study commitments, addition of family leave provisions, a range of matters like that, that are over and above award minimums.
PN686
So if we were to assume that there is an agreement - and we'll use the Coles Supermarkets agreement as an example - that has some specific consideration for secondary school students working after school in particular states. Is it your evidence that there has been some sort of trade-off to reach that conclusion?---In any set of negotiations it's a package, so the matter would have been agreed upon with all considerations taken into account.
PN687
In the absence of the - I withdraw that. An agreement which provides for a two hour minimum in particular jurisdictions would have some sort of offsetting entitlement that you've negotiated to counter for that shorter shift?---The offset may not be - sorry, the additional benefit may not be restricted solely to that state, but the benefit may apply generally, but that would've been taken into consideration.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN688
So the other states might benefit from a reduction in the casual - in a shift, without having to impose that minimum shift reduction?---No, my point was that at the end of the day an agreement is a package.
PN689
How many casual employees did you ask about this application, about their opinion on this application?---Directly I've had discussions with casual delegates just recently.
PN690
With?---Casual delegates.
PN691
Casual delegates?---At training courses.
PN692
How many secondary school student casual employees did you ask about the content of this application?---None.
PN693
You haven't provided any witnesses who have given evidence of the threat that this two hour minimum poses?---I can't - - -
PN694
You haven't provided any witnesses who are members of your union, or your branch of the union, to provide direct evidence, who are casual employees, of their opposition to this application?---No.
PN695
Is that because there aren't any?---No, I - they just haven't been provided.
PN696
Or you don't know if there any?---I don't know.
PN697
I'll take you to paragraph 21 of your statement. You say that members regularly raised issues when you were an area organiser concerning the quantum of their hours. Is it conceivable that there are members who would want to work shorter than a three hour shift?---It may be conceivable but it was never raised with me.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN698
So if a member with schooling commitments till 3.30, 4 o'clock in the afternoon wishes to engage in work after school, your position would be that they should be paid for three hours from the time that they get to work, regardless of what time the business closes?---Yes.
PN699
Even if that business closes at 5.30?---Yes, but - - -
PN700
Or they should be denied that employment opportunity?---Most retailers trade beyond that.
PN701
Sorry?---Most retailers would trade beyond the 5.30.
PN702
Beyond 5.30? Is that your evidence, that most retailers would trade beyond 5.30?
---There are substantial numbers of retailers that trade beyond 5.30.
PN703
Who are they?---In New South Wales I could walk through endless shopping centres and they're trading beyond 5.30.
PN704
Till when?---That would be up to the business itself in the shopping centre.
PN705
In a shopping centre. Where are these shopping centres, mainly metropolitan New South Wales or country New South Wales?---Both.
PN706
So you're giving evidence here that the majority of retailers in New South Wales, regardless of their location, trade beyond 5.30?---They are able to. They are able to.
PN707
They are able to. Do they, was the question?---In my experience vast numbers of retailers trade beyond 5.30.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN708
Are you talking about retailers for whom you have members?---Yes, but in shopping centres that are retailers that operate in conjunction with the trading hours of that centre and the large acre tenants tend to determine the operating hours of the centre.
PN709
So if I was to wander through Tamworth Central Shopping Centre at 5.45 pm on a Monday afternoon, you'd be telling me that all those retailers would be open?
---With Tamworth specifically I couldn't comment.
PN710
Sorry?---I'm not saying that, no.
PN711
Well I thought you just said that most of them would be open regardless of where they are?---There are large numbers of retailers in New South Wales that trade beyond 5.30.
PN712
Well, do you have any knowledge of the make-up of SDA membership in New South Wales, in terms of which employers these members work for?---Yes.
PN713
Would it be fair to say that the significant majority - and I'm talking more than 60 per cent - are engaged with major chains ie. the Woolworths Group and the Wesfarmers Group?---Yes.
PN714
It would be fair to say that they may trade beyond 5.30 Monday to Friday?---Yes.
PN715
And that is where your experience predominantly lies?---Predominantly but not exclusively.
PN716
Are you aware of the situation, through media reporting, of some school students at a place called Terang that was the impetus for this process?---I'm aware of the story, yes.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN717
You're aware that there are school kids that were only be available from about 4 o'clock and their employers closes their business at around 5.30?---I've heard those reports.
PN718
Do you think it's an acceptable situation that those employees lose that working opportunity because of the imposition of a three hour minimum shift?---I think it's a question of balance. Those particular individuals, in my experience, would represent a very small minority of people working in the industry that rely on a minimum start of at least three hours.
PN719
But you have some sympathy for their predicament?---The particular individuals, yes, but again it's a question of balance.
PN720
So if there was a facility to deal with these individual circumstances, but maintain a three hour minimum, you would be supportive of that?---No.
PN721
I'm sorry but I thought your response was that you did believe that this limitation on their employment prospects was an issue, but you don't think that it should
be - - -
PN722
MR FRIEND: With respect, the witness never said he believed the limitation of the employment prospects was an issue. He said he had some sympathy with the individuals.
PN723
MR TINDLEY: May I continue with the question, your Honour?
PN724
THE VICE PRESIDENT: You can continue with the question.
PN725
MR TINDLEY: You have some sympathy for the predicament of those individual employees?---I understand their predicament.
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
PN726
Are you then saying that you don't think that that issue should be dealt with? There should be some flexibility around that issue?---No there shouldn't be.
PN727
So they just have to wear it?---Again it's a question of balance. The vast majority of employees in the retail industry - it would be detrimental to their interests to have a shift provision of less than three hours.
PN728
What about a shift provision just for secondary school students?---I would reject that based on the issues in the industry which go to authority, control and what can genuinely be agreed and assessed as being genuinely agreed in a workplace ie. if there is a - if you're talking about a flexibility provision, my issue would be how could that be applied fairly without the potential for widespread abuse.
PN729
Are you suggesting that this situation in Terang shouldn't be addressed because there would be some widespread attack on genuine employees and minimum shifts?---Yes.
PN730
What do you base that on?---Experience.
PN731
What experience?---The issues with regards to minimum starts, in my experience, it's all been one way in terms of people wanting more hours, not less, and where people have had hours removed it's - it is generally without their consent. And I'm talking about where it's removed even in examples over and above three hours. It's just the nature of the workplace and the power relationships.
PN732
Can you give one example of where a minimum shift length has been reduced in a award or an agreement and there has been abuse of junior casual employees as a result of that?---No, I was going to issues that I've had to deal with - - -
PN733
**** CHRISTOPHER RONALD KETTER XXN MR TINDLEY
Thank you, the answer is no. The question was can you give a single example of a reduction in a minimum shift in an award or an agreement where that has led to disadvantaged abuse of casual employees? It is a question that demands a yes or no answer?---Specifically no.
PN734
I've no further questions, your Honour.
THE VICE PRESIDENT: Mr Issa.
<CROSS-EXAMINATION BY MR ISSA [3.08PM]
MR ISSA: Mr Dwyer, you stated under questioning from Mr Tindley that the vast majority of retail employees do not want a minimum two hour shift; is that correct?---Correct.
PN737
Paragraph 7 of your statement, you stated that, "The retail industry employs approximately 14 per cent of the nation's workforce" and that at least 80 per cent of this retail workforce is not unionised?---Yes.
PN738
Which means that you would roughly represent about 2.8 per cent of the retail workforce?---I think the figures would say that the union represents about 20 per cent.
PN739
80 per cent of the 14 per cent?---I'm sorry, yes.
PN740
So therefore you don't represent a vast majority of retail employees, and wouldn't actually know what a vast majority of retail employees actually want?---I think the proper construction of that is that as a union representing retail workers we actually understand what the issues are for retail workers.
PN741
But you claim to speak for the majority of employees but you do not represent the majority?---The situation in this country has always been that the union of an industry represents all the employees in that industry, whether they're members or not.
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
PN742
So you represent 2.8 per cent of retail employees and would it be fair to say that the majority of your 2.8 per cent do not support it, as opposed to a majority of retail employees as a whole, who have not actually provided you with their opinion?---No, we represent directly 20 per cent of the retail industry and with a 20 per cent sample I think we understand what the issues are generally for retail workers.
PN743
But as I stated, you do not represent the majority?---No.
PN744
Thank you. Now at paragraph 11 you state that the retail industry is intensely competitive in the merchandise sectors and across the industry as a whole; correct?---Yes.
PN745
Therefore with the intensely competitive nature of retail would it not be in the interests of both employees and employers that the General Retail Award be flexible?---I think it already is flexible.
PN746
Pardon?---I think the award - - -
PN747
Flexible for a minimum engagement of casuals?---Three hours is a very flexible minimum engagement.
PN748
For employees who aren't able to attend work? For a minimum of three hours, who can only make it for two hours?---I guess where in my statement I submit that the two hours isn't seen as a worthwhile shift for the majority of retail workers.
PN749
As you stated with Mr Tindley, you're familiar with the Target Enterprise Agreement 2008; correct?---In general terms, yes.
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
PN750
In general terms. Well you stated that there was a trade-off. That there was context and that there was bargaining that went into it, and that employees had a higher rate of pay under the agreement?---Than the award, yes.
PN751
Would that include their casual loading?---The casual loadings vary.
PN752
Pardon?---That varies from jurisdiction to jurisdiction, yes.
PN753
Well, under the Target retail agreement it states that the casual loading is 20 per cent?---Yes.
PN754
That would be lower than the General Retail Award?---Depending on which jurisdiction you want to refer to.
PN755
So the casual loading is lower. There is an exception that allows employees to work for two hours, yet you do not think that two hour exceptions are workable?
---In the context of bargaining, taking into account the particular business and other aspects of the agreement that have been included, it may be an appropriate provision.
PN756
Other aspects of the agreement such as the Sunday penalty rate, and the ordinary hourly rate under the Target agreement is 70 per cent?---For?
PN757
For Sunday work for casual employees it's 70 per cent on the ordinary hourly rate. That's lower again?---Lower than what?
PN758
Than the GRA, General Retail Award?---Yes. Today as we speak that's not the case.
PN759
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
Pardon?---That is not the case as we speak today.
PN760
How is it not the case?---If you're talking about the double time rate that is subject to transitional provisions?
PN761
Correct?---So today, when we speak, it is not double time on a Sunday.
PN762
It is for the majority of Australia?---Not as we speak today it's not.
PN763
Who is it for?---The 200 per cent loading on a Sunday is subject to transitional provisions which commence on 1 July.
PN764
Correct, however the transitional provisions would only apply where they would not come up, if the existing rate was already lower. I put it to you that the 70 per cent on a Sunday; where would you find that it was lower - that it wasn't lower, sorry, than the other jurisdictions?---In New South Wales it is time and a half so it's a 50 per cent loading, and in the federal jurisdiction the award loading for a casual employee was 15 per cent.
PN765
I'm talking about Sunday here?---Yes.
PN766
Sunday it's the loading plus the casual loading, so this 70 per cent is actually lower than most jurisdictions across Australia, as we speak?---Well I can only speak with reference to New South Wales on this particular question and it's 50 per cent plus a 15 per cent casual loading means time and 65 per cent.
PN767
What's the built in annual leave loading?---You'll find that in the operation of the NAPSA and the Australian Fair Pay Commission rates of pay that that load - the in built holiday loading was not applicable. It was a straight 15 per cent. It was an issue that my branch had.
**** CHRISTOPHER RONALD KETTER XXN MR ISSA
PN768
Nothing further, your Honour, thanks.
THE VICE PRESIDENT: Mr Halls.
<CROSS-EXAMINATION BY MR HALLS [3.15PM]
MR HALLS: Mr Dwyer, I just wanted to refer you to paragraph 17 of your statement, where you're asserting that if the minimum start is further reduced to the two hours sought by the applicants to these proceedings, it would not be worthwhile for the part-time and casual workers to come to work. What does many mean, for that purpose? Can you quantify that?---As a particular figure, no.
PN771
No?---But I would submit the majority.
PN772
Would it be a better situation than if the casuals weren't able to work any hours whatsoever in terms of the employer being willing to afford the many hours because of the minimum engagement hire?---I think - if you - your question may be premised on the - on a falsehood that the particular hours couldn't be up - couldn't be offered to people who may already be there, so that the business would be able to extend a person's shift, as opposed to having another person come in for a minimum shift, which would be un-worthwhile.
PN773
The essential question or what I'm putting to you is, is a two minimum engagement a better situation than having no hours at all as an employee?---No.
PN774
No, and the same issue - once again I think you've raised a similar issue in paragraph 19 of your statement, "So if the minimum start for part-timers and casuals is reduced from three hours to two hours that would be a disastrous outcome for retail workers", so that's a more disastrous outcome than not having any work at all?---Yes.
**** CHRISTOPHER RONALD KETTER XXN MR HALLS
PN775
At paragraph 23 of your statement you're - I'm trying to just understand the second part of that, "I do not recall any store manager ever requesting an arrangement for a two hour shift in my time as an organiser". Are you referring to a request from a store manager of yourself or of the company? I'm just trying to actually make sense of that second statement - the second part of that statement - paragraph rather - "I do not recall any store manager ever requesting an arrangement for a two hour shift in my time as an organiser"?---Yes, as an organiser you dealt with store managers on an individual basis, so it's the individual - - -
PN776
For a request put to yourself?---Yes.
PN777
Yes, okay. In New South Wales though we actually had a three hour minimum payment in the pre-modern award, didn't we?---That's correct.
PN778
Yes, so it's not likely that you would ever actually have a request, is it, for that purpose, and it would be non-compliance, wouldn't it?---No, no. The managers would raise issues from time to time in terms of would we be able to accommodate a particular change to this work practice, and we would have that conversation with them. And I'm thinking about things like rest pauses et cetera, but what I say there in the statement is I can never recall anyone ever raising the two hour shift with me on that basis.
PN779
That's fine. I just also refer you to paragraph 29 of your statement as well, where you're making a mention of insecurity associated with casual employment, and that's raised as an issue. You would accept that perhaps job insecurity is inherent in the nature of the casual employment generally speaking?---Yes.
PN780
Yes, and you don't believe that in any circumstances there should be any exceptions to a two hour minimum engagement? That shouldn't apply to anyone? There shouldn't be a period less than three hours for any type of employee, whether an adult employee, a school student, as the case may be?---Not in a general award provision, no.
**** CHRISTOPHER RONALD KETTER XXN MR HALLS
PN781
Tell me, do you see any reason why it wouldn't be possible to actually have a clause that possibly set out a three hour minimum engagement, but actually allowed for parties to agree on a lesser period in appropriate circumstances?---In a previous response I think I indicated that that, I think, would be inappropriate in terms of the power relationship inside workplaces. My previous answer with regards to questions about accommodating certain changes to other work practices, those conversations would end up being an education process for the manager, in explanation as to why certain things couldn't be dealt with.
PN782
So in short it's not an option as far as you're concerned - - - ?---Yes.
PN783
No further questions, your Honour.
PN784
THE VICE PRESIDENT: Mr Friend.
PN785
MR FRIEND: No re-examination, your Honour. May Mr Dwyer please be excused.
THE VICE PRESIDENT: Yes, thank you for your evidence, Mr Dwyer. You may step down.
<THE WITNESS WITHDREW [3.20PM]
MR FRIEND: Those were the three witnesses we had today, your Honour. I don't know - - -
PN788
THE VICE PRESIDENT: Yes, how many more witnesses?
PN789
MR FRIEND: We've got seven more, one of whom is the expert. His statement, as your Honour will have seen, is quite substantial, and there is Mr Wareham at 9.30 tomorrow. I don't know how we're travelling in terms of time. There are two more witnesses at 4 o'clock, of course, but they'll only take 10 minutes I think.
PN790
THE VICE PRESIDENT: Yes, well we might run short tomorrow with the 9.30 start by the look of it.
PN791
MR FRIEND: Yes.
PN792
THE VICE PRESIDENT: No difficulty with anyone with a 9.30 start?
PN793
MR TINDLEY: No, your Honour.
PN794
THE VICE PRESIDENT: Is there anything further we can do before the 4 o'clock?
PN795
MR FRIEND: Yes, if I can raise one matter, your Honour. There are, on the statements that were before Fair Work Australia, five applications and I understand there has been a notice of discontinuance in one of them, AM2010/36, that brought by San Capri. I wasn't sure if your Honour had called on all applications this morning. There are representatives for three of them, but Mr Whittaker's application, 2010/44, no one seems to have appeared. I wasn't sure what the position was with that, your Honour.
PN796
THE VICE PRESIDENT: That matter is called on and there's no appearance on behalf of Mr Whittaker.
PN797
MR FRIEND: Yes.
PN798
THE VICE PRESIDENT: What do you say should be done in those circumstances?
PN799
MR FRIEND: Well, your Honour, it is slightly different to some of the other applications. It wants a one and a half hour minimum in respect of everyone. Apparently that's what Mr Whittaker has been doing, but he has a statement attached to it, and my submission would be, your Honour, that you couldn't take any account of the statement. You could of course see the application, but in the absence of submissions one wouldn't expect it to make any difference to the outcome. But your Honour has answered my question, which is that it's called on, and I'll endeavour to respond to your Honour's questions.
PN800
THE VICE PRESIDENT: Yes. Well, there's also the question of some other correspondence that has been forwarded to the Tribunal, but no appearance or other involvement by any party. How do you say that material should be treated?
PN801
MR FRIEND: I'm not sure that I'm aware of which correspondence your Honour's referring to. We're still - certainly those of us like Mr Dowling and myself - catching up with the new way of doing things by having a look on the website and finding out what has been filed.
PN802
THE VICE PRESIDENT: Yes.
PN803
MR FRIEND: But if material has been forwarded to Fair Work Australia without anything further, our submission would be that it cannot be given any weight in terms of the Fair Work deliberations. I say this to your Honour because - - -
PN804
THE VICE PRESIDENT: No evidentiary weight. Is there any objection to it being treated as a submission, given that directions were issued for the filing of written submissions?
PN805
MR FRIEND: A submission, your Honour, I can't object to except in so far as it contains evidentiary material.
PN806
THE VICE PRESIDENT: Yes.
PN807
MR FRIEND: Which can't be tested. Yes, that's as far as it would go.
PN808
THE VICE PRESIDENT: Any party have any views on those matters we've just raised?
PN809
MR TINDLEY: Your Honour, I think the nature of the variation process has been interesting and a new experience for all of us, and I think that's probably resulted potentially in the number of applications and also the number of pieces of correspondence that have come forward. I think it's entirely appropriate to treat that correspondence as a submission where they've been filed. I note there are a number of other organisations, I think, who have provided correspondence. In relation to any witness statements that have been provided, it's our submission - and we intended to address this in closing, but it would be unfair to attribute no weight to that evidence, to those statements. I talk about the statements of - I believe - and we did have some discussion about this at lunch time, your Honour, that you'd indicated that the statements of the Australian Retail Association would not be admitted into evidence.
PN810
THE VICE PRESIDENT: Yes.
PN811
MR TINDLEY: It's our position that it is fair and appropriate for those to be admitted into evidence, but for the Tribunal to attribute whatever weight it sees fit. That's prefaced, in our submission, on the relatively uncontroversial nature of the evidence that has been given. I think that comes through with - and I know it's in all circumstances not entirely appropriate to consider the cross-examination of other witnesses, but I don't think that there are large areas of contest in what has been provided. In our submission it is appropriate to accept those statements but for the Tribunal to determine for itself whether those statements - or the weight to attribute to those statements. If those statements are attributed just as a supporting document, then that is the weight that the Tribunal would apply - that attributes to it.
PN812
THE VICE PRESIDENT: I take it the other employer representatives would make a similar submission? Anything further to add?
PN813
MR HALLS: Your Honour, I think I've probably stated my position on that earlier, which is whatever weight you choose to attribute to those, to be satisfied in the circumstances.
PN814
THE VICE PRESIDENT: Mr Friend?
PN815
MR FRIEND: Well, my understanding was that those statements were not tendered and were not admitted, and we have the party who didn't produce them now seeking to tender them. Your Honour, proceedings will like this will become unmanageable if statements like that are let in, in that manner. There are contentious things that we would cross-examine on in those statements, and it's beyond weight. There's not even an explanation for the failure - well, two people didn't want to come and give evidence, so the statements aren't attested in any way. Then we're told that the particular witness doesn't want to come and give the evidence. What possible weight could your Honour give it? The third one, the witness is unavailable but we're not given any explanation of what attempts might have been made to have him available on the telephone or by video link today or tomorrow.
PN816
We've been relatively accommodating in all the circumstances in relation to that, your Honour, and the union has gone to the trouble of getting as many witnesses as it can, a number from interstate, here to give evidence so that they can be properly cross-examined. It creates an unfairness and a difficulty in relation to the conduct of the matter if statements like that can just be tendered in evidence. It would invite parties to repeatedly bombard the Tribunal not only with submissions by way of letters during the course of preparation, but also statements, and then say, "Well take them into account anyway. We're not going to cal them because they don't want to come". If your Honour pleases.
PN817
THE VICE PRESIDENT: Yes, well I confirm the position that the statements that were filed but the witnesses were not called to give that evidence are not admitted into evidence. Other correspondence that has been received in response to the directions for filing material will be treated as submissions, but any material that goes beyond that will not be considered of any evidentiary weight. Yes, Mr Shipstone?
PN818
MR SHIPSTONE: Thank you, your Honour. In this matter the act union isn't putting in any witness statements but we would like to make a relatively brief submission, and if appropriate and if there was (indistinct) - - -
PN819
THE VICE PRESIDENT: Yes, you can do it now. Yes, by all means.
PN820
MR SHIPSTONE: Yes, certainly. It's an opportune moment now. At 4 o'clock I'm (indistinct).
PN821
THE VICE PRESIDENT: Yes, well we have the other witnesss by telephone at four.
PN822
MR TINDLEY: Yes, that's the two junior employees are available from four.
PN823
THE VICE PRESIDENT: Yes, are you able to use some of the time?
PN824
MR SHIPSTONE: I'm (indistinct).
PN825
THE VICE PRESIDENT: Yes, by all means.
PN826
MR SHIPSTONE: That should fit in nicely, thank you, your Honour. If it pleases, the ACTU lodged its written outline of submissions in these matters on 22 April, and we make this oral submission today, but of course we do rely on that written submission. We seek today to take up some of the few points in it. The matters currently before the Tribunal involve various applications to vary clause 13.4 of the General Retail Industry Award 2010, a clause that provides for a minimum engagement period of casual employees of three hours. The purpose of our intervention in these matters in the first instance is essentially to argue that these matters should not be dealt with. We make this argument on the basis that the Modern Retail Award and the clause in question regarding the minimum casual engagement period was the subject of extensive proceedings during the process of award modernisation. This process gave all interested parties a number of opportunities to raise issues of concern and to make submissions on what they felt should be in or out of each award.
PN827
Following that extensive process the Full Bench of the Commission made its determination on these matters, and the final result of course was the modern award with a clause that provided for a minimum engagement of three hours for casual employees. Now it's clear that there were - and certainly there still are, of course, different positions held on what is in fact an appropriate minimum engagement period for casual employees under this award. For its part the ACTU, along with the SDA, strongly supports the current provision for three hours as a fair safety net provision which provides an appropriate and proper level of protection for casual employees in these circumstances, and one which reflects the equivalent provisions in any pre-existing awards and NAPSAs. It's equally clear that the relevant employers in this matter obviously take a different view on what the minimum casual engagement period should be.
PN828
In our submission if you put these different positions aside for one moment, in fact, before even considering these different positions the critical point that we keep coming back to, in our submission, is that regardless of what view you might take of what the appropriate minimum engagement period should be, the fact is that these different positions were aired and ventilated during the award modernisation process. Taking into account these varying positions, the Full Bench made its decision and these circumstances, contrary to the public interest, allowed this provision in the modern award to be re-litigated. On this basis our submission is that the respective applications should be dismissed. In terms of the relevant legislative mechanism or provision for dismissing such a case, it's our submission that points you to section 587 of the Act, which provides a general discretionary power for the Tribunal to dismiss applications before it. In the submissions we make it quite clear that this power to dismiss an application is not one which should be exercised lightly.
PN829
As a general principle we fully recognise and support the fact that applicants should be entitled to have their applications heard and dealt with, and this entitlement should only be disturbed if, as a matter of discretion, the Tribunal considers there are appropriate reasons to justify those entitlements being displaced. In our submission this is such an example where there is an overriding public interest in dismissing an application, a set of applications, in order to confirm the principal and the practice that matters that have already been heard and determined should not be re-litigated. We submit this is also in the interests of maintaining an award system that provides stability. At the same time we make clear in our written submission that our position is not one of putting all award variations off limits for consideration. Our submission is not about wanting to set awards in stone, however what we are saying is that there are certain circumstances where the Tribunal should generally refrain from hearing an application to vary a modern award. These are circumstances where there is evidence that the subject matter of the application was the subject of award modernisation proceedings; and where the application to vary is made within a short period of the modern award having been made; and where there's no evidence that circumstances have changed since the making of the modern award.
PN830
THE VICE PRESIDENT: What about a case - and it's not a hypothetical one - where an award was put up and there were particular allowances for different airports around the country, but not all airports, and an application is made to vary the award to ensure that there's a proper disability for the Yulara Airport. The first application in 2010 was of that nature. Is that a case where it's appropriate to look at the circumstances and the merits of that application, even though the matter had been considered and dealt with fully by the Full Bench?
PN831
MR SHIPSTONE: Yes, certainly, your Honour, we're not saying it should be set in - I'm not sure I should've made a comment on this as a typical example which is given - - -
PN832
THE VICE PRESIDENT: Yes, just in all cases, I guess, there has been a consideration by the Full Bench and a determination. What circumstances precisely might there be a case for a variation under section 157 outside the four year period?
PN833
MR SHIPSTONE: Well in our submission we're saying that there's certain circumstances where, whether it's a case of not (indistinct) an application or (indistinct) an application and that's our - it might be (indistinct) where it's been heard and determined and whether just a short period has elapsed, and then there's a question - and it's going to be - it has to be by necessity a judgment made on whether there are changed circumstances which justify re-opening that particular - to reopen that particular provision. In this particular case, as I'll go to in a moment, we don't feel that there are changes in circumstances since the making of the award to justify the reopening of the clause. As I said, though, what we're putting forward I guess is the principles of a formula by which the Tribunal can assess these matters, and obviously there will be different circumstances which come before the Tribunal, and decisions will have to be made based on the circumstances of each matter which comes before it. I guess what we're trying to do here is just apply some form of principles or formula by which those assessments can be made. The formula we've put forward, we would contend as well that there's nothing remarkable in that formula or proposition that we put before you. It's one which is entirely consistent, we would submit, with the views expressed by the Full Bench in its decision of 26 June 2009 on the extent to which it would consider award variations. In a section from that decision which your Honour would be familiar with, the Bench stated that:
PN834
Applications to vary the substantive terms of modern awards will be considered on their merits. It should be noted however that the Commission would be unlikely to alter substantive award terms so recently made after a comprehensive review of the relevant facts and circumstances, including award and NAPSA provisions applying across the Commonwealth. Normally a significant change in circumstances would be required before the Commission would embark upon a reconsideration.
PN835
We note the approach set out by the Full Bench on that occasion has since been cited by the Full Bench in a number of subsequent matters where it has refused application to vary modern awards. The principles or formula which we put forward also reflects earlier case law in this area, in our submission, and the case law that we do cite in our written submissions concerns several matters where the Commission heard applications under the old section 111(1)(g) provision, and (iii) of this provision gave the Commission the discretion to dismiss applications on the basis that further proceedings were not necessary or desirable or in the public interest. Certainly that same provision is not contained in the Fair Work Act but in our submission section 587 of the current legislation provides the Tribunal with a similarly broad discretion to dismiss an application where it considers this appropriate. For this reason the case law from section 111(1)(g) is relevant, we submit, particularly where it involves cases that deal with the same fundamental issue at stake here, and it has to be or otherwise (indistinct) to bring matters to the Tribunal that have previously been heard and determined.
PN836
There are two particular cases of interest which we highlight in our written submission, which involved applications to the Commission to introduce or to vary award provisions that have already been dealt with during award certification proceedings. In both these cases, before Vice-President Ross and Commissioner Cargill respectively, the Commission recognised the prima facie right of the applicant to have their substantive matter heard and determined but weighed this against the public interest in not allowing already decided matters to be re-litigated. For instance in the case before Vice-President Ross the key findings that gave rise to a determination but further proceedings were not necessary or desirable in the public interest were the issues when the order was being sought, and the substantive application of that matter, which was a part-time work provision, had already been considered in the award certification proceedings. A length of period had not elapsed since the issues were last determined, and the changed circumstances since the decision fell far short of being sufficient to warrant a different conclusion being reached.
PN837
So the formula or approach that we advocate is well grounded in past practice of the Commission and now the Tribunal when considering such matters. That is again, briefly, that when the subject matter of a new application has previously been considered and rejected, a length of period hasn't elapsed, and the circumstances haven't changed, then such application should be dismissed. If you accept this formula and apply it to the facts of the matters now before the Tribunal, there are strong and cogent reasons, we submit, for each of the applications to be dismissed. At least it's clear from our submission that the subject matter of these applications, clause 13.4 of the award, has been dealt with and determined during the award modernisation process, and all parties had the opportunity to raise their concerns and objections or their support, in relation to any clauses to be included or excluded from the modern award. Then in our written submission we outline some key stages in this process, and perhaps rather than going through them again step by step, I'd simply set before your Honour the relevant sections of our submission, at paragraphs 43 to 53.
PN838
We also note the written submission of the SDA, that conducted a similar exercise, and which also refers to further activity around this clause in 2009, where submissions were made seeking changes to the minimum engagement period for what were substantially similar reasons to those now being argued by the applicants in these matters. The Full Bench again reaffirmed its position in support of a three hour minimum engagement clause. Secondly, it's certainly the case that a lengthy of period of time hasn't elapsed since the award was determined (indistinct) once again on December 2008, and the various variations made to it since. Finally, in our submission, neither has there been any material change of circumstances to justify this particular clause being reopened and re-litigated. It's clear that the applicants are raising objections to the clause as it stands, however in our submission dissatisfaction with a particular clause does not qualify as a change in the circumstances that might affect how a clause applies and operates. Essentially the applications before the Tribunal deal with the situation of school age children who are working in retail establishments after school hours. Clearly the fact that employers employ children to work after school hours, after they finish school for the day, is not something which has only started to occur since the modern award was made. Therefore the objections that the employers now raise, which the ACTU does not accept on merit g rounds, are not about matters that have just materialised or that couldn't have been foreseen at the time of the award modernisation proceedings. For these reasons and on other grounds the Tribunal sees fit, the Tribunal should proceed to dismiss the applications. If the Tribunal pleases that's where I leave my oral submission, except to say that we strongly support and endorse the more detailed submissions in evidence of the SDA in this matter, in support of the current minimum engagement period. We continue to rely on our written submissions. If your Honour has any further questions?
PN839
THE VICE PRESIDENT: Yes, thank you, Mr Shipstone. I think it would be appropriate now to adjourn until 4 o'clock. The telephone link will be established and we'll proceed with the final two employer witnesses. We'll now adjourn.
PN840
<SHORT ADJOURNMENT [3.46PM]
<RESUMED [4.05PM]
THE VICE PRESIDENT: Yes, Mr Tindley.
PN842
MR TINDLEY: Your Honour, we call Leticia Harrison who is available by telephone.
PN843
THE VICE PRESIDENT: Ms Harrison, you are on the telephone? Ms Harrison, can you hear us?
PN844
MS L HARRISON: Yes, yes.
<LETICIA MAY HARRISON, AFFIRMED [4.06PM]
THE VICE PRESIDENT: Yes, thank you. Mr Tindley will ask you some questions firstly.
<EXAMINATION-IN-CHIEF BY MR TINDLEY [4.06PM]
MR TINDLEY: Ms Harrison, can I get you to again state your full name and address?
---Leticia May Harrison, (address supplied).
PN847
And Ms Harrison, have you prepared a statement in relation to this matter?---Yes I have.
PN848
And have you got that statement with you?---Yes I do.
PN849
And is that statement made up of seven numbered paragraphs and an attachment which is a front page of a petition?---Yes.
PN850
And it's dated 19 April 2010?---Yes.
PN851
I tender that statement.
EXHIBIT #T2 WITNESS STATEMENT OF LETICIA HARRISON
MR TINDLEY: Thank you, your Honour. That is the evidence-in-chief of the witness.
PN853
THE VICE PRESIDENT: Any cross-examination from the employer's side?
PN854
MR HALLS: No, your Honour.
PN855
**** LETICIA MAY HARRISON XN MR TINDLEY
THE VICE PRESIDENT: Mr Dowling will now ask you some questions representing the SDA, Ms Harrison?---Okay.
<CROSS-EXAMINATION BY MR DOWLING [4.08PM]
MR DOWLING: Ms Harrison, you have in your statement that you commenced work at the Terang Home Hardware on 4 November of 2008, is that correct?---Yes it is.
PN857
And the Home Hardware is run by the Terang and District Co-Op?---Yes.
PN858
And it's the Co-Op that pays your wages?---Pardon?
PN859
It's the Co-Op that pays your wages?---Yes.
PN860
And does the Co-Op also run the supermarket?---Yes they do.
PN861
And it pays the wages of the people that work at the supermarket?---Yes.
PN862
And do you work in the supermarket?---No I don't. I work at Home Hardware.
PN863
And have you worked in the supermarket?---No.
PN864
And the hardware store is open 8.30 to 5.30 Monday to Friday?---Yes.
PN865
And 8.30 to 12.30 Saturday and Sunday?---No. Nine o'clock until 12 o'clock Saturday and Sunday.
PN866
Thank you. The supermarket is opened until 7 pm on Monday to Friday?---Can you please repeat that again?
PN867
**** LETICIA MAY HARRISON XXN MR DOWLING
The supermarket is open until 7 pm on Monday to Friday?---Yes.
PN868
And your evidence is you're in year 11 at Terang Secondary College?---Yes I am.
PN869
And what time do you finish school?---I finish school at 3.25.
PN870
And you start work at 4 o'clock, is that right?---Yes.
PN871
So you work between 4 o'clock and 5.30 pm?---Yes I do. I did.
PN872
You work an hour - my apologies, you did. You work an hour and a half shift?---Yes.
PN873
Are you aware that during the time you worked an hour and a half shift there was a requirement under the Victorian award to work a two hour shift? That your shift should be a minimum of two hours?---Well I didn't at the time, but I do now.
PN874
And is that why in paragraph 3 of your statement you say that:
PN875
I worked from approximately 3.30 to 5.30.
PN876
?---Yes.
PN877
So is that not true?---Pardon?
PN878
That statement is not true, is it?---Well it's not true, but it says approximately.
PN879
Your shift was always from 4 o'clock til 5.30, wasn't it Ms Harrison?---No it wasn't always. It was sometimes from 3.45 until 5.30.
PN880
**** LETICIA MAY HARRISON XXN MR DOWLING
Do you recall an interview with the local newspaper, The Standard?---Which interview would that have been [indistinct]?
PN881
On or about 20 March of this year?---Yes.
PN882
And do you recall telling the journalist from that paper:
PN883
I was told when I started work I would work for one and a half hours after school.
PN884
?---Yes.
PN885
And is it true that when you started employment you were told you would work for one and a half hours after school?---Yes, that is true.
PN886
So most often your shift was between four and 5.30 pm?---Yes.
PN887
And were you told in relation to your statement that you should say 3.30 to 5.30 so as not to expose your employer to allegations of breach of the award?---No.
PN888
Were you told that your employer was required to give you a two hour shift?---No.
PN889
But you are now aware of that?---Yes.
PN890
And you were aware of that when you wrote your statement?---Yes.
PN891
Did you work on Saturdays and Sundays?---Well, we have a roster that's made up every month. So it's not always Saturday or Sunday, it just depended when we got put on a Saturday or you got put on Sunday.
**** LETICIA MAY HARRISON XXN MR DOWLING
PN892
But you did work a Saturday and Sunday?---Yes.
PN893
And you worked on school holidays?---Yes.
PN894
And when you worked on a Saturday or a Sunday you worked for a period of three hours or more?---Three hours, yes.
PN895
Attached to your statement is a document described by you as a petition. Do you have that?
---Yes. I don't actually have a copy of the petition at the moment, no.
PN896
Do you have the first page of it?---Yes. I don't have the whole page, but I've got one of the petition sheets.
PN897
The page I have in front of me is headed at the top To The Honourable Speaker and Members of the House of Representatives. Do you have a page - - -?---I don't have that page, no.
PN898
Do you recall the first page of the petition?---I can remember it, yes.
PN899
Do you recall it was headed To The Honourable Speaker and Members of the House of Representatives?---Yes.
PN900
Was that your decision to direct it To The Honourable Speaker and Members of the House of Representatives?---Well, sort of. Dan Tehan and I and Charlie both headed it that way.
PN901
And Dan Tehan is the Liberal candidate for Wannon, is that correct?---Yes it is correct.
**** LETICIA MAY HARRISON XXN MR DOWLING
PN902
So it was Dan's idea to head it that way?---It was he put it forward and I decided to write it that way, yes.
PN903
And Charlie is who, Charlie Duynhoven?---Charlie, yes. He is the manager of the Terang Co-Op.
PN904
So you sat down with the manager of the Co-Op and the Liberal candidate for Wallan and they proposed what words you should use in the petition, is that right?---Yes.
PN905
And did they propose what words you should use in your statement also?---No.
PN906
Did Charlie say to you you'd better say two hours in the petition because an hour and a half would be in breach of the award?---Yes, an hour and a half was in breach of the award.
PN907
And Charlie told you that?---Well, I didn't know it at the time when I was being employed no, but when I was told that I couldn't work there anymore because it had changed to three hours then I was aware of it, yes.
PN908
My question was a little different, Ms Harrison. My question is Mr Duynhoven told you that it was a breach of the award to work an hour and a half and he told you that prior to you writing your statement, is that correct?---Yes it is.
PN909
Now, the petition that you discussed with Mr Tehan and Mr Duynhoven, do you recall when you spoke to The Standard newspaper on about 20 March that Mr Tehan was also present?
---Was also present?
PN910
**** LETICIA MAY HARRISON XXN MR DOWLING
Yes?---No he wasn't present.
PN911
Are you aware that he spoke to the journalist on or about that same day?---No, I wasn't aware of that.
PN912
There was an article that featured a picture of you and Mr Clark and some words attributed to you. Did you read that article?---Hang on, I've got it n front of me and with the heading Pressure on top.
PN913
Co-Op Copping Unfair Pressure Over Workers, Says Tehan.
PN914
By a journalist by the name of Everard Himmelreich of 20 March. Do you have that article?
---Yes I do.
PN915
And did you read that article?---Yes I have.
PN916
And do you agree that Mr Tehan said he was pursuing the issue at a national level and planned to take a petition to Canberra?---Yes.
PN917
And the petition we're talking about, that's Mr Tehan's petition, isn't it?---No, in my hand?
PN918
At the suggestion of Mr Tehan that's correct isn't it Ms Harrison?---Sorry, can you please repeat that?
PN919
At the suggestion of Mr Tehan that's correct, isn't it?---Yes.
PN920
Nothing further, your Honour.
PN921
**** LETICIA MAY HARRISON XXN MR DOWLING
MR TINDLEY: Nothing on re-examination, your Honour.
PN922
THE VICE PRESIDENT: Yes. Thank you for your evidence, Ms Harrison. We don't need anything further from you at this stage. We will terminate the call.
<THE WITNESS WITHDREW [4.17PM]
MR TINDLEY: We will now be calling Matthew Spencer.
PN924
THE VICE PRESIDENT: Yes. Do you have a statement?
PN925
MR TINDLEY: There was an attempt to file Matthew's statement along with Leticia Harrison's. It went to Fair Work Australia, but the resolution was a problem and I was unable to obtain a faxed copy of it until yesterday evening. I have a copy for the Tribunal. The other parties have received copies of it.
PN926
THE VICE PRESIDENT: Yes, okay. Well, take that and I will adjourn briefly while he gets on the phone. I'll adjourn for a short time.
<SHORT ADJOURNMENT [4.18PM]
<RESUMED [4.20PM]
PN927
THE VICE PRESIDENT: Mr Spencer, are you on the line?
PN928
MR M SPENCER: Yes, I am.
PN929
THE VICE PRESIDENT: My associate will ask you to take the oath or affirmation.
<MATTHEW JOHN SPENCER, AFFIRMED [4.21PM]
THE VICE PRESIDENT: Mr Tindley will ask you some questions, Mr Spencer.
<EXAMINATION-IN-CHIEF BY MR TINDLEY [4.21PM]
MR TINDLEY: Mr Spencer, can I ask you again to state your name and address?---My name is Matthew Spencer, (address supplied).
PN932
And Mr Spencer, have you prepared a statement in relation to this matter?---Yes I have.
PN933
Do you have a copy of that with you?---Yes I do.
PN934
And does that statement consist of seven numbered paragraphs?---Yes.
PN935
Over two pages. And have you attached to that statement the front page of a petition?---Yes, the front page of the petition is attached to that statement.
PN936
Now, is that statement true and correct to the best of your knowledge?---It is true and correct.
PN937
Thank you, Mr Spencer. That's the evidence-in-chief of the witness.
PN938
THE VICE PRESIDENT: Do you tender the statement, Mr Tindley?
PN939
MR TINDLEY: I apologise, your Honour. I tender that statement.
EXHIBIT #T3 WITNESS STATEMENT OF MATTHEW SPENCER
THE VICE PRESIDENT: Mr Friend will now ask you some questions, Mr Spencer.
****MATTHEW JOHN SPENCER XN MR TINDLEY
<CROSS-EXAMINATION BY MR FRIEND [4.22PM]
MR FRIEND: Now Mr Spencer, you're in the final year of VCE, are you?---Yes, that's correct. Year 12.
PN942
Year 12. But you've been working at the Co-Op for three years until the start of this year. That's right, isn't it?---Yes, that's correct.
PN943
Now, the Co-Op has got two parts, hasn't it? A hardware store and a supermarket?---Yes.
PN944
Mr Duynhoven is the manager of both, isn't he?---Yes, the Co-Operative, yes. He manages both.
PN945
And they're together, aren't they?---What do you mean together?
PN946
In the same place?---Yes. [indistinct].
PN947
Yes, but close to each other?---Yes.
PN948
Did you do all your work at the hardware store, or some of it at the supermarket?---No. I worked just in the hardware store.
PN949
Do other people work in the supermarket?---Yes, there's other students who work in the supermarket.
PN950
Other students who work in the supermarket. And that closes much later than the hardware store every night, doesn't it?---Yes. It closes at 10 to 7 o'clock.
PN951
And I suppose that's open all weekend too, not just short hours?---Yes.
**** MATTHEW JOHN SPENCER XXN MR FRIEND
PN952
Have you ever spoken to Mr Duynhoven about perhaps taking up some work at the supermarket rather than the hardware store?---I applied for a job, but I didn't get the job there.
PN953
Didn't get the job there?---No.
PN954
Why was that, do you know?---No. I just wasn't that suited to the position. And yes, I had too many commitments, like football commitments that clash.
PN955
I see. So you weren't available because of your football commitments to take up a job at the supermarket?---Yes.
PN956
Okay, I understand. The petition you attach, you have said in paragraph 6 of your statement that you started it. I just want to make sure I understand this. Ms Harrison has just told us that she prepared it with Mr Duynhoven and Mr Tehan. Would that be right?---Yes and after Leticia started the petition I put my name on it because we both, you know, like just [indistinct] both signed the petition [indistinct].
PN957
Yes, okay. I understand. You weren't there when it was written though?---No, I wasn't.
PN958
That's all right, I understand. Thanks, Mr Spencer.
PN959
THE VICE PRESIDENT: Mr Tindley.
<RE-EXAMINATION BY MR TINDLEY [4.25PM]
MR TINDLEY: Mr Spencer, you were just asked if you were involved in the initial development of the petition and you said your answer was no, is that correct?---Yes. No I wasn't involved in the starting the petition.
**** MATTHEW JOHN SPENCER RXN MR TINDLEY
PN961
Do you support the content of the petition?---No, no.
PN962
In that - sorry, I'll ask that again. Do you support the position in the petition that there should be a change that allows you to work a shorter than three hour shift?---Yes, yes. I support that.
PN963
Thank you. No further questions.
PN964
THE VICE PRESIDENT: Thank you for your evidence, Mr Spencer. We don't need to delay you any further?---No worries. Thank you very much.
<THE WITNESS WITHDREW [4.26PM]
THE VICE PRESIDENT: Nothing further this afternoon. We'll adjourn until 9.30 in the morning.
<ADJOURNED UNTIL 7 MAY 2010 [4.26PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #T1 DOCUMENTED HEADED NRA AND ARA PROPOSED CLAUSE PN82
LEANNE PENTREATH, SWORN PN111
EXAMINATION-IN-CHIEF BY MR ISSA PN111
EXHIBIT #I1 WITNESS STATEMENT OF LEANNE PENTREATH PN115
CROSS-EXAMINATION BY MR FRIEND PN129
RE-EXAMINATION BY MR ISSA PN192
THE WITNESS WITHDREW PN196
FRANK WILLIAM DEVRIES, SWORN PN197
EXAMINATION-IN-CHIEF BY MR ISSA PN197
EXHIBIT #I2 WITNESS STATEMENT OF FRANK WILLIAM DEVRIES PN216
CROSS-EXAMINATION BY MR FRIEND PN219
THE WITNESS WITHDREW PN248
ALLYSON MARGARET FITZPATRICK, SWORN PN260
EXAMINATION-IN-CHIEF BY MR ISSA PN260
EXHIBIT #I3 WITNESS STATEMENT OF ALLYSON MARGARET FITZPATRICK PN272
CROSS-EXAMINATION BY MR DOWLING PN283
RE-EXAMINATION BY MR ISSA PN333
THE WITNESS WITHDREW PN337
EXHIBIT #H1 OUTLINE OF SUBMISSION OF THE ARA PN360
EXHIBIT #H2 SUPPORT DOCUMENT ONE OF THE ARA PN362
EXHIBIT #H3 SUPPORT DOCUMENTS FOUR, SURVEY ANALYSIS AND RESPONDENT'S COMMENTS FROM SURVEY PN379
EXHIBIT #M1 SUBMISSIONS OF ACCI DATED 25/03/2010 PN385
EXHIBIT #M2 REPLY SUBMISSION OF ACCI DATED 16/04/2010 PN386
EXHIBIT #F1 WITNESS STATEMENT OF ATHOL WILLIAM WILLIAMS DATED 23/04/2010 PN481
CROSS-EXAMINATION BY MR TINDLEY PN483
CROSS-EXAMINATION BY MR ISSA PN514
CROSS-EXAMINATION BY MR HALLS PN522
THE WITNESS WITHDREW PN539
CHRISTOPHER RONALD KETTER, SWORN PN540
EXAMINATION-IN-CHIEF BY MR FRIEND PN540
EXHIBIT #F2 WITNESS STATEMENT OF RONALD CHRISTOPHER KETTER DATED 27/04/2010 PN546
CROSS-EXAMINATION BY MR TINDLEY PN548
CROSS-EXAMINATION BY MR ISSA PN604
EXHIBIT #I4 COLLECTION OF AGREEMENTS TENDERED BY MASTER GROCERS AUSTRALIA PN615
CROSS-EXAMINATION BY MR HALLS PN643
RE-EXAMINATION BY MR FRIEND PN654
THE WITNESS WITHDREW PN660
GERARD DWYER, SWORN PN661
EXAMINATION-IN-CHIEF BY MR FRIEND PN661
EXHIBIT #F3 WITNESS STATEMENT OF GERARD DWYER PN667
CROSS-EXAMINATION BY MR TINDLEY PN669
CROSS-EXAMINATION BY MR ISSA PN736
CROSS-EXAMINATION BY MR HALLS PN770
THE WITNESS WITHDREW PN787
SHORT ADJOURNMENT PN841
LETICIA MAY HARRISON, AFFIRMED PN845
EXAMINATION-IN-CHIEF BY MR TINDLEY PN846
EXHIBIT #T2 WITNESS STATEMENT OF LETICIA HARRISON PN852
CROSS-EXAMINATION BY MR DOWLING PN856
THE WITNESS WITHDREW PN923
MATTHEW JOHN SPENCER, AFFIRMED PN930
EXAMINATION-IN-CHIEF BY MR TINDLEY PN931
EXHIBIT #T3 WITNESS STATEMENT OF MATTHEW SPENCER PN940
CROSS-EXAMINATION BY MR FRIEND PN941
RE-EXAMINATION BY MR TINDLEY PN960
THE WITNESS WITHDREW PN965