PN82

THE DEPUTY PRESIDENT: Thank you. Good morning. Could I confirm on the line I have Mr Rose?

PN83

MR ROSE: Yes, Mr Deputy President.

PN84

THE DEPUTY PRESIDENT: Thank you. And Ms Milfin?

PN85

MS MILFIN: Yes. Thank you, Deputy President.

PN86

THE DEPUTY PRESIDENT: Thank you. I have listed the matter for this short conference this morning just to touch base with the parties and ensure that we are on track for the hearing that's been listed for this application. In the last day or so the representative for Gymnastics Australia has advised the Commission that Gymnastics Australia is no longer an interested party in this application that has been made to vary the Fitness Industry Award and won't be attending.

PN87

So what that leaves us at this stage going into a hearing on 25 and 26 October are Mr Rose, you as the applicant and the UWU which is represented by Ms Milfin. Now, you'll recall we had a conference on 4 June and arising out of that, I, along with the other members of the Full Bench that has been convened to deal with his application issued a statement and that was published on 6 September. In that statement I draw the parties' attention to the directions that were made for the filing and service of material.

PN88

Now, in response to that, the UWU has filed an outline of submissions, two witness statements, one from Ms Pepper and one from Mr Garcia and then two attachments. An award comparison document that they have sourced from the Award Modernisation Process some years ago and a timetable they say is from the Total Toning Fitness Gymnasium and that is the material that has been put in by the UWU.

PN89

Now, Mr Rose, it would seem that there's been some difficulty experienced from you in becoming a subscriber to the Award Modernisation Subscription Service linked to this Award but I nevertheless note that on 1 October you were sent a copy of the Full Bench's statement with a link to the webpage that has been setup for this application to vary the Fitness Industry Award which would then take you to the material of the UWU. So what's the status of your positioning going into the hearing, Mr Rose?

PN90

MR ROSE: Sure. Thank you. Yes, I was experiencing difficulty using the portal. I tried many times, multiple times to use it. I do have supporting evidence. I've got four documents myself to submit, I just wasn't able to. I've also been very, very busy as well so I did get correspondence from I guess, your office on how to set it up. It was about a month after I'd actually asked for it yet that's okay, I did - I just got very busy myself but I've got four documents.

PN91

Two former employees that I didn't submit, I've got a fellow gym owner who's in the similar view of myself and a lecturer from the Fit College which is an RTO of the organisation, somebody who sees a high turnover of students that come and go through the industry. So, yes, I do have documents.

PN92

THE DEPUTY PRESIDENT: All right.

PN93

MR ROSE: I don't know if I've left it too late to submit but, yes, I just - I was having trouble doing them.

PN94

THE DEPUTY PRESIDENT: All right. So you've described them as documents but they seem to be in the manner of there'll be a statement from two former employees, a statement from a fellow gym owner and what is it, a statement from this lecturer from - what is it, Fit College, and they're a registered training organisation.

PN95

MR ROSE: Yes. Correct. It's an - correct.

PN96

THE DEPUTY PRESIDENT: All right. Now, then that's - are you intending to put in anything further to that which you've already provided in your application form? Are you going to put in a statement or any other submissions or documents, you yourself?

PN97

MR ROSE: Of course. Yes, myself I would, yes, and just supporting the evidence, yes.

PN98

THE DEPUTY PRESIDENT: All right. Now, there's a couple of issues arising out of that.

PN99

MR ROSE: All right.

PN100

THE DEPUTY PRESIDENT: And this is equally applicable to the UWU, if any party is intending to rely on the statement of another person that person would usually be then called by that party as a witness so that if the other party to the matter want to ask that person questions, cross‑examine them or if the members of the Full Bench wish to ask them any questions they have the opportunity to do so.

PN101

Now, if you don't have those people available it has an impact on how much weight can be given to their statements because they'd be untested. If they're present and able to answer questions then their statement will be fully tested and findings can be made about the statement that has been made and the answers that are given to those questions.

PN102

So the first thing is those four individuals, in addition to yourself, would need to be available for the hearing if you want to get the full benefit of relying on their evidence. They don't have to attend but if they don't attend that'll impact how much weight can be given to that which they've outlined in their statement.

PN103

MR ROSE: Sure.

PN104

THE DEPUTY PRESIDENT: So that's the first thing. Secondly, if you are going to put any material in, we're now about two weeks out from the hearing so what the directions had provided was the opportunity for parties to put in initial material and then get the opportunity to respond to the material that other parties have put in.

PN105

So at this stage, you will have by now seen what is outlined in the statements and the submissions of the UWU but the UWU hasn't had an opportunity to see what your witnesses would say or you say so what I've got to work out now is well, have we got sufficient time now before the hearing to enable that process to occur? So you've said you've got the statements, are they ready to go? Are they ready to submit?

PN106

MR ROSE: Yes, I've got them all in my inbox, yes.

PN107

THE DEPUTY PRESIDENT: All right. And if you were to complete that which you want to say, either in a statement or any submissions, are you in a position to do so relatively promptly?

PN108

MR ROSE: Yes. Yes, absolutely. Could do it today.

PN109

THE DEPUTY PRESIDENT: All right. Well, because if that was to occur then I could look at varying the directions so that we don't lose the hearing dates on the 25th and 26th. So if I was to say to you, you were to file and what I'd get you to do at this stage is send it back to my chambers and that's the email address you've been getting the notice of listing for, chambers.clancy.dp@fwc.gov.au, and then my chambers would forward them immediately onto Ms Milfin and we would then take the steps to make sure they're up on the particular webpage for this award.

PN110

So if you were in a position to do that by 4 pm tomorrow, is that achievable?

PN111

MR ROSE: Of course, yes.

PN112

THE DEPUTY PRESIDENT: Yes. All right. So that would be the 13th.

PN113

Ms Milfin, if that was to occur, I'd then provide an opportunity for you to put in reply material.

PN114

MS MILFIN: Yes.

PN115

THE DEPUTY PRESIDENT: And I'd prefer, given that there's two other members of the Bench and they have various diary commitments not to - I'd prefer not to lose the hearing dates we have.

PN116

MS MILFIN: Hearing dates.

PN117

THE DEPUTY PRESIDENT: But if possible, if the material was filed by 4 pm tomorrow, I'd be proposing that you have until 4 pm on Thursday, 21 October to reply, does that work for you?

PN118

MS MILFIN: That's fine. Thank you. I am actually needing to take all of next week off as annual leave anyway so I'll be doing it this Thursday. Anything that I receive I'll be doing this week anyway, so that's fine. Yes.

PN119

THE DEPUTY PRESIDENT: All right. All right. Well, I'll make that direction just in case there's any slippage or changes but Mr Rose, it'll be very important then for you to have that material in by 4 pm tomorrow but it sounds like you've got most of it in place anyway. Now, when you submit your material tomorrow, Mr Rose, it's important that if you've got anything to say about any of the material that's been filed by the UWU, either in the submissions or the statements that you outlined that in the material you file tomorrow, all right?

PN120

MR ROSE: Yes.

PN121

THE DEPUTY PRESIDENT: All right. So the way we'll proceed is this. Mr Rose will have until 4 pm tomorrow to file with my chambers the witness statements that he's foreshadowed and any submissions he wishes to make and in that he needs to address the material that has been filed by the UWU. The UWU will have until 4 pm on Thursday, 21 October to file any material in reply, obviously if it comes in earlier it will - that's fine too.

PN122

In both cases, if the parties would please just send their material to my chambers and then my chambers will do the administrative steps around sending them onto the other parties and placing them on the Award Modernisation webpage for the Fitness Industry Award. Now, we'll proceed on the 25th and 26th. I'm just wondering whether we'll need the two full days and if the parties share my view that we may not need the two full days. Do they have a preference for either of the Monday or Tuesday or that week?

PN123

Ms Milfin, given that you will be on leave next week maybe the Tuesday would suit you better, I don't know.

PN124

MS MILFIN: No, the Monday - thank you. The Monday would suit me better. My days with my girls are Tuesdays are Friday so Monday would be better.

PN125

THE DEPUTY PRESIDENT: All right.

PN126

MS MILFIN: But I have flexibility with my days so if it has to be Tuesday, that will work.

PN127

THE DEPUTY PRESIDENT: All right. Well, Mr Rose, do you have any view? If it was just the Monday, would that suit you?

PN128

MR ROSE: The Tuesday does suit me better because Mondays I'm usually packed with catching up jobs from over the weekend where members have contacted me so, yes, Mondays are pretty busy for me but, yes, if it had to be Monday I could make it work but ideally Tuesdays would definitely suit me better.

PN129

THE DEPUTY PRESIDENT: All right. Well, Ms Milfin, is it a difficulty the Tuesday for you? I mean, at the moment we've got both days listed.

PN130

MS MILFIN: Yes, I am - look I had set aside to have both days available and if - yes, that's a tricky one, it's just that I don't ordinarily work Tuesdays so I was going to shift my diary around.

PN131

THE DEPUTY PRESIDENT: Well, look, I'm inclined to start on the Monday as we've got listed just in case we spill into the second day.

PN132

MS MILFIN: Yes. Yes.

PN133

THE DEPUTY PRESIDENT: I'd prefer us to be able to finish the matter on those two days and secondly, I've got to be mindful of the members of the Bench. So we'll proceed as listed on the 25th at 10.

PN134

MS MILFIN: Sure.

PN135

THE DEPUTY PRESIDENT: It will be by Microsoft Teams. You'll get some additional information by that.

PN136

MS MILFIN: Yes.

PN137

THE DEPUTY PRESIDENT: Now, Mr Rose, what we'll do just so that you're familiar because Ms Milfin might have already participated in other hearings where we conduct them by Microsoft Teams but what will happen is once your material's filed and any reply material is received by - from Ms Milfin, my chambers will compile it all into a single PDF document which we call the digital court book and that'll have page numbers and so forth.

PN138

So that when we're conducting the hearing if a party wants to refer to a particular document or a particular part of a statement they can just say, "If everyone could go to page 37 or page 48", or whatever the page may be, it just enables us all to follow what's going on with a bit more efficiency. So that will be compiled by my chambers and then emailed to the parties.

PN139

My recommendation is if it at all possible you can have that in a hard copy, it tends to be easier to follow but that's not to say you can't follow it on a screen. I would certainly not recommend trying to follow it through an iPhone because it'll just be too difficult to read and flick from page to page. So the optimum would be for it to be in a hard copy printout if you can do that, all right, that's my recommendation.

PN140

MR ROSE: Sure. No worries.

PN141

THE DEPUTY PRESIDENT: All right. Well, thank you for your time this morning everyone.

PN142

MS MILFIN: (Indistinct).

PN143

THE DEPUTY PRESIDENT: I'll send a quick email today just confirming those new directions and I'll then leave the parties to comply with them and there'll be some information then about the hearing itself, the court book, but otherwise we'll speak again on the 25th. On the 25th I will require the parties to have a camera on so just make sure you're in a room which is quiet with good Internet connectivity and where you can fully participate in the hearing. Now, both parties will need to get in touch with each of their witnesses and indicate that they will be required on Monday the 25th.

PN144

Mr Rose, as the applicant you'd ordinarily have your witnesses go first so could I suggest you have your people ready from 10 am on - and what will happen is we'll need you to send in some details of each of your witnesses, the same for you, Ms Milfin, so that my chambers can get in touch with them. They can participate via Teams as well and we'll send that information through to them but we will need those people available.

PN145

If any of the witnesses have particular times on that Monday that they're not available, we'll try and accommodate them but really the issue is we'll need them as - on that day so that we can get through the case, all right. So you'll need to get in touch with all your people that you're calling as witnesses, Mr Rose, and just let them know that and the same for you, Ms Milfin. All right.

PN146

MS MILFIN: That's fine. Thank you, Deputy President.

PN147

MR ROSE: All right.

PN148

THE DEPUTY PRESIDENT: All right. And - all right, that's covered everything for this morning. Thank you both for being available this morning. I'll send out that email today with the amended directions and we'll go from there.

PN149

Is there anything further before we conclude, Mr Rose?

PN150

MR ROSE: No, Deputy President. Thank you.

PN151

THE DEPUTY PRESIDENT: Thank you. Ms Milfin?

PN152

MS MILFIN: No, that's everything. Thank you, Deputy President.

PN153

THE DEPUTY PRESIDENT: All right. Thank you. We'll now adjourn.

ADJOURNED UNTIL MONDAY, 25 OCTOBER 2021 [11.21 AM]