PN1

THE VICE PRESIDENT: Can I take the appearances, please. I might start in Melbourne. Ms Biddlestone, you appear with Mr Moretta for the SDA.

PN2

MS K BIDDLESTONE: Yes, that's correct, your Honour. Also with me is Mr Moretta, initial M, appearing on behalf of the SDA.

PN3

THE VICE PRESIDENT: Right. Thank you. So in Sydney: Ms Walsh, you appear for the AWU.

PN4

MS R WALSH: Yes, your Honour. And I have with me Dunalfe, initial Z, also of the AWU.

PN5

THE VICE PRESIDENT: Ms Bhatt, you appear for AiG and the Hair and Beauty Association.

PN6

MS R BHATT: Yes, Vice President. Thank you.

PN7

THE VICE PRESIDENT: Mr Arndt, you appear for ABI and the New South Wales Business Chamber.

PN8

MR J ARNDT: That's right, your Honour.

PN9

THE VICE PRESIDENT: And Ms Wellard, you appear for the Pharmacy Guild and the Master Grocers Association.

PN10

MS S WELLARD: If it pleases your Honour.

PN11

THE VICE PRESIDENT: And in Brisbane: Mr Wild, you appear for the National Retail Association.

PN12

MR T WILD: Yes, your Honour, correct.

PN13

THE VICE PRESIDENT: It might be easier to stay seated, Mr Wild. And in Adelaide: Mr Keffer, you appear for Business SA.

PN14

MR C KLEPPER: Yes. That's Mr Klepper, your Honour.

PN15

THE VICE PRESIDENT: Klepper. I'm sorry, Klepper.

PN16

MR KLEPPER: That's all right.

PN17

THE VICE PRESIDENT: Is that all the appearances? Yes, all right.

PN18

MR KLEPPER: Yes, your Honour.

PN19

THE VICE PRESIDENT: All right. Ms Biddlestone, you're the moving party in this matter, so can you give me the benefit of an estimate of what would be involved in haring this matter, including what evidence, if any, would be involved; how long it would take to put on your evidence and submissions; and how long a hearing would take.

PN20

MS BIDDLESTONE: Okay.

PN21

MR MORETTA: Your Honour, if I may speak on behalf of the SDA.

PN22

THE VICE PRESIDENT: Yes.

PN23

MR MORETTA: Your Honour, we believe it's going to take some time, probably in the next few months, before we will be able to put some proper submissions - adequate submissions in: getting witnesses; getting - obviously we're hoping to get expert witnesses as well in the field, that might be able to - that should be able to assist in our case.

PN24

THE VICE PRESIDENT: How long will that take?

PN25

MR MORETTA: We believe it will take at least three to four months. We're hoping that we can put appropriate submissions - written submission in around May of this year, taking into account there are - we have resources in other matters that are before the Commission in relation to the modern award review, namely I'm involved in the public holiday cases matters. So we see that that would be the time frame.

PN26

But we also would like to take the opportunity, if we can, in this time or up to that time to have conference in your presence and assistance with the parties. We haven't had a - probably no discussion or substantive discussion with most of the groups that have put their appearances in today. We would like to also take that time, the opportunity to have at least conferences with those parties, even before your Honour, to see if we can maybe be able to come to an agreed position on the case in terms of the drafting and address the concerns that the employer groups have in relation to such a provision in the awards.

PN27

THE VICE PRESIDENT: How many witnesses do you think you will be calling?

PN28

MR MORETTA: At this point in time, your Honour, it could be anywhere between 10 to 20 in terms of our members that have the provision in their EBAs, and also award employees; so that could be about anywhere between 10 to 20, we're envisaging at this stage.

PN29

THE VICE PRESIDENT: Right.

PN30

MR MORETTA: And we will be conducting surveys, and we're trying to work on one in order to - approaching our members in the most expedient way, online through our website, in order to get feedback. So that will assist us greatly in achieving that. I think ‑ ‑ ‑

PN31

THE VICE PRESIDENT: Mr Moretta, the difficulty is that this is a four-year review which has to have finished by the end of the year, which involves a Full Bench hearing the matter; issuing a decision; and if there's a variation, it needs to be consolidated with everything else for a final award by the end of the year. That makes me very reluctant to list it at any time beyond the middle of the year. Can you accommodate that sort of time scale?

PN32

MR MORETTA: Yes. Your Honour, I understand, and all I can say at this point is that if we had the opportunity to have a conference with the interested parties at some point in the coming month we would probably be able to gauge a better view of how long the case will take in terms of we will know also the number of witnesses that will come forward or be prepared to come forward; it might be that simply it won't be 10 or 20. But it really will allow us also to approach experts in the area and to get the relevant information, the technical information that we need. I think that would be also time that we would require.

PN33

And I think with the written submissions we would be hoping that initially the case would be dealt with through written submission as well predominantly and see where we go with the oral in terms of having the witnesses.

PN34

THE VICE PRESIDENT: So what do you need expert evidence about?

PN35

MR MORETTA: In terms of the value of having such a provision and the value to the community of blood donor and bone marrow. That would be important, and see where - having the provisions in the award that would assist in terms of the provision of people donating blood and involved in bone marrow and see how that could be - how that's beneficial to the community and how both the employers and the employees - to us it s a win-win for all.

PN36

We want to show the utility of such a provision, essentially, in the awards, which cover millions of employees in the country, especially in the retail sector.

PN37

THE VICE PRESIDENT: All right. Anything else at this stage?

PN38

MR MORETTA: Not at this stage, your Honour.

PN39

THE VICE PRESIDENT: All right. Perhaps I will hear from the AWU next. What do you want to say about the matter?

PN40

MS WALSH: Your Honour, this is a matter that was recently brought to our attention. We have an interest just in the Hair and Beauty Industry Award.

PN41

THE VICE PRESIDENT: Yes.

PN42

MS WALSH: I suppose we can say that we're broadly supporting of the claim.

PN43

THE VICE PRESIDENT: All right.

PN44

MS WALSH: At this stage I'm only aware of, really, the attachment to the recent statement on 21 December. If I can confirm, I did speak to the employer parties. I understand this didn't really get very far along in relation to the Pharmacy Industry Award. But at this stage I can just say that we're supportive, but we haven't seen any further material other than what has been put into that statement.

PN45

THE VICE PRESIDENT: All right. Thank you. Ms Bhatt.

PN46

MS BHATT: Thank you, Vice President. If I can firstly address the proposal of the SDA that the matter be listed for conference: we wouldn't oppose that course of action, but I should note that the claim in its current form is opposed by both of the organisations that I speak for today.

PN47

If I can raise just a few things about the any directions that are issued for the filing of material: based on what we've just heard in relation to the nature of the evidence that might be filed, it is our view that we would require a minimum of eight weeks to respond. We also submit that any directions that are issued should require the filing of comprehensive written submissions, any witness statements, and also any other documentary material upon which any party seeks to rely.

PN48

I'm unsure as to whether it's necessary to require the SDA to file a draft determination. I understand that some document has previously been filed that sets out a proposed clause. If the SDA is seeking a form of words that differs from that, they should of course indicate that when they find their material in support of their claim.

PN49

The only other matter that I might raise, although this may be somewhat premature, is that once all the material has been filed, the matter should, we say, be listed for mention to discuss the programming of the hearing, especially if there are several witnesses to be called. At this stage I have nothing further to put.

PN50

THE VICE PRESIDENT: That would involve deferring the setting of the hearing date, which does place considerable constraints upon completing the matter appropriately by the end of the year.

PN51

MS BHATT: Your Honour, that isn't what I had in mind. I wonder if it would be possible to list the matter for hearing but perhaps - - -

PN52

THE VICE PRESIDENT: Yes, have a further mention of it.

PN53

MS BHATT: Yes, to discuss how those dates are used.

PN54

THE VICE PRESIDENT: All right. Thank you. Mr Arndt.

PN55

MR ARNDT: Your Honour, from ABI and the Chamber's perspective we have no difficulty in attending a conference in regards to the matter. We hear your Honour's comments about how important it is to get a listing date in the middle part of the year. All we would really require is a sufficient time to respond to any evidence produced. The amount of time we would need to respond would, I guess, depend on the evidence produced, but I would see a period of six to eight weeks as a sensible amount of time. And as I said, if the next step is to attend a conference, we would be amenable to that course.

PN56

THE VICE PRESIDENT: Right. Thank you. Ms Wellard.

PN57

MS WELLARD: Your Honour, the issue of blood and bone marrow leave was canvassed quite extensively in the Pharmacy Award proceedings. We were unable to reach a position of consent with the union in that matter. I don't know what benefit further consultation or conference with the union can have because I do think we discussed it quite a lot.

PN58

I note that this matter isn't a common issue, but has been brought together collectively because it is a matter that crosses a number of awards in the same way that the penalty rates matter did. I don't know if it's the union's view that we may end up with different clauses in each of the awards, and therefore that wish to consult with us separately or jointly. In any event, if the union is of the view that consultation in the Pharmacy Award - and with respect to the Master Grocers, the Retail Award - is of any benefit, then we're happy to participate.

PN59

With respect to the timetable, your Honour, we are completely in the Commission's hands with regard to when the materials are to be filed. At this stage it's very difficult to know what evidence we would put on in response without saying that the union has. If it pleases.

PN60

THE VICE PRESIDENT: Thank you. Mr Wild.

PN61

MR WILD: Yes, your Honour.

PN62

THE VICE PRESIDENT: Please stay seated, Mr Wild.

PN63

MR WILD: Thank you, your Honour. Your Honour, we take a similar view to the parties in so far as the timeline for a response is concerned. It would be seeking an appropriate, fair time to respond, and it does obviously depend on actually what we are responding to. But at a guess, at my best guess we would be asking for a minimum of six to eight weeks after hearing what the SDA is actually proposing to be putting on.

PN64

We are in the process of canvassing - or have actually canvassed our members on that, and our preliminary position, whilst we haven't seen any material other than the actual claim itself, would be to actually oppose the SDA's claim. Thank you, your Honour.

PN65

THE VICE PRESIDENT: Thank you. Mr Klepper.

PN66

MR KLEPPER: Thank you, your Honour. Business SA will be in agreement with the other employer parties in regards to the response time. We would also be welcoming of conferences to discuss this further; we are always open for matters such as that. And we are also in a position of having done a preliminary survey of our members, obviously without them seeing the SDA's final proposal, and our preliminary findings are that we would have to oppose this claim. Thank you.

PN67

THE VICE PRESIDENT: All right. Is there anything you want to say in reply, Mr Moretta, to any of that?

PN68

MR MORETTA: Not at this stage, your Honour, no.

PN69

THE VICE PRESIDENT: All right. If the parties will just give me one second. I propose, subject to the further comment of the parties, to make the following directions, firstly:

PN70

The SDA is to file a draft determination with respect to the variation it seeks in the awards the subject of this proceeding one week from today;

PN71

Once that has been done I will direct the parties to confer between themselves, and if, following any such conference, the parties consider that there would be further benefit from a conference conducted by a member of the Commission, that can be arranged upon request through my chambers;

PN72

I will direct the SDA and any other organisation supporting the SDA's claim to file their evidence and comprehensive written submissions by 14 April; those parties opposing the claim are to file their evidence and comprehensive written submissions by 16 June; and then the SDA will have until 30 June to respond;

PN73

The matter will be set down for a mention on 3 July; and

PN74

I will set aside three days for the hearing of the matter on 17, 18 and 19 July.

PN75

Mr Moretta, does that accommodate your union's circumstances?

PN76

MR MORETTA: Thank you, your Honour, that satisfies us. Thank you.

PN77

THE VICE PRESIDENT: Does any other organisation have any issues with those directions? Ms Bhatt?

PN78

MS BHATT: There is just one matter. If the directions were to require the filing of comprehensive written submission, evidence, and any documentary material. I raise that for this reason: there have been occasions in the past where we get to a hearing and we're met with, for instance, analysis of pre-reform awards; we're then left in a position where we're not able to check that at the time.

PN79

THE VICE PRESIDENT: All right. I will amend the directions to include that as an element of the cases which have to be filed.

PN80

MS BHATT: Thank you.

PN81

THE VICE PRESIDENT: Does anyone else have any issues with those directions?

PN82

MR WILD: Thank you, your Honour. No, your Honour.

PN83

MS WALSH: No, your Honour.

PN84

THE VICE PRESIDENT: All right. I will formally arrange for those directions to be issued in writing; the parties are granted liberty to apply if some difficulty arises along the way; otherwise I thank the parties for their attendance and I will now adjourn.

ADJOURNED UNTIL MONDAY, 03 JULY 2017 [11.32 AM]