Ms Lorena Menchon and Landrex Pty Ltd (ACN 009 138 550)

[2015] FWCA 8679

[2015] FWCA 8679

The attached document wholly replaces the document previously issued with the code [2015] FWC 7194 on 15 December 2015.

Melissa Phang

Associate to Deputy President Bull

Dated 15 December 2015

[2015] FWCA 8679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Ms Lorena Menchon
and
Landrex Pty Ltd (ACN 009 138 550)
(AG2014/10718)

DEPUTY PRESIDENT BULL SYDNEY, 15 DECEMBER 2015

Application for termination of the Community Pharmacy Multiple Business Agreement (Western Australia), termination of an agreement after its nominal expiry date, employers opposed to termination, public interest test, when the FWC must terminate an agreement

[1] On 8 December 2014, an application was made by Ms Lorena Menchon (the applicant) to terminate the Community Pharmacy Multiple Business Agreement (Western Australia) (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement is a multi-enterprise agreement. The Shop, Distributive and Allied Employees’ Association (WA Branch) (the SDA) was named as Ms Menchon’s representative.

[2] The applicant’s statutory declaration which was filed with the application names Landrex Pty Ltd trading as Terry White Chemists Belmont Forum as the employer (the respondent). Also attached to the application was a “List of employers covered by the Agreement” labelled Attachment (1). The employers listed were served with a copy of the application. As submitted by the applicant in Attachment (1), there are 60 employers covered by the Agreement (the employers).

Background

[3] The Agreement was approved by the Workplace Authority in 2009 in accordance with the Workplace Relations Act 1996 on the basis that the Agreement passed the No-Disadvantage test, being the relevant test for the approval of the Agreement at the time. A notice to this effect was issued by the Workplace Authority on 25 August 2009. The Agreement was to operate for 5 years and reached its nominal expiry date on 1 September 2014.

[4] The applicant seeks to have the Agreement terminated and the modern Pharmacy Industry Award 2010 (the Award) cover employees and employers.

Relevant Legislation

[5] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[6] Schedule 3, Item 16(1) of the Transitional Act states:

“Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[7] Section 225 of the Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[8] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

“226 When the FWC must terminate an enterprise agreement

“If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[9] Directions were issued on 23 December 2014 seeking the views of the employers covered by the Agreement pursuant to s.226(b) of the Act.

[10] The matter was before the Fair Work Commission (the Commission) for hearing on 19 January 2015 and 30 September 2015. Mr Drake-Brockman and Mr Jackson from DLA Piper sought leave to appear for the respondent on 19 January 2015. The respondent then advised the Commission that it had authority to appear on behalf of 30 employers that are covered by the Agreement. This was supported by the statutory declaration of the respondent, noting the relevant employers whom had authorised the respondent to appear on its behalf.

[11] Mr Millman, from Slater and Gordon sought permission to appear for the applicant. Permission to appear by solicitors for all parties was granted pursuant to s.596(2)(a) of the Act on the basis that it would enable the matter to be dealt with more efficiently taking into account the complexity of the application. 1

Standing to pursue the application

[12] The respondent raised a jurisdictional objection with respect to the applicant’s standing in its submissions of 12 January 2015, and at the hearing of 19 January 2015. The respondent argued that as Ms Menchon was no longer an employee of the respondent, having resigned her employment on 9 December 2014 2, and was no longer covered by the Agreement as of 17 December 20143, she therefore had no interest or standing in the matter.

[13] It is submitted by the representatives for the applicant, that at the time of application, being 8 December 2014, Ms Menchon was covered by the Agreement, and that as the Agreement had passed its nominal expiry date, any party covered by the Agreement, including Ms Menchon at the time of application are entitled to bring the application.

[14] Section 225(b) of the Act states that if an enterprise agreement has passed its nominal expiry date, an employee covered by the Agreement may apply to the Commission for the termination of the Agreement. At the time of application, Ms Menchon was an employee covered by the Agreement, and therefore had the necessary standing under s.225(b) to bring the application.

[15] As the preconditions of s.225 were met at the time of application i.e. the Agreement had exceeded its nominal expiry date; the applicant Ms Menchon, was an employee at the time of application and covered by the Agreement, Ms Menchon had standing to make the application. The fact that she is no longer an employee cannot detract from the validity of the application when made. Once an application has been validly made the Commission has an obligation to determine the matter under s.226 of the Act. As Ms Menchon is no longer an employee then her views under s.226(b) are not a consideration.

Determination under s.226

[16] Section 226 of the Act requires the Commission to terminate an expired agreement if it is not contrary to the public interest and taking into consideration the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them. It is common ground that no employee organisation is covered by the Agreement.

[17] Directions were issued to the employers covered by the Agreement to bring the application to the attention of its employees, and inviting the employees to express their views regarding the application to terminate the Agreement to the Commission.

Applicant’s evidence and submissions

[18] A statutory declaration from Ms Menchon dated 8 December 2014 was filed in support of the application as required by Rule 26 of the Fair Work Rules 2013 and in accordance with Part 2-4 of the Act. Ms Menchon also gave oral evidence assisted by a Spanish interpreter and was subject to cross examination.

[19] Ms Menchon commenced working as pharmacy assistant at Terry White Pharmacy, Belmont Forum on 20 October 2014 and resigned on 9 December 2014. Ms Menchon worked through her notice period with her last day of employment being 17 December 2014.

[20] The applicant had some difficulty in stating who, if anyone assisted her prepare her application. Ms Menchon initially stated in her evidence that she was only assisted by her partner Stephen Diston (a union organiser 4) in preparing her application.5 Subsequently. during her cross examination Ms Menchon stated that her partner and a Mr Rafferty from the SDA6 had assisted her in preparing the application.7

[21] In Ms Menchon’s application, it is submitted that it is in the public interest for the Agreement to be terminated for the following two reasons:

1. The Agreement would not pass the better off overall test in relation to the Award; and

2. Pharmacy employees employed under the Agreement are presently worse off than employees employed under the Award.

[22] Attached 8 to the application was a document comparing terms of the Agreement and the Award, highlighting what the applicant submits as being the significant differences. The applicant submits that, whilst the base rate of pay is higher under the Agreement than the Award, the Agreement contains lower penalty rates and casual loading.9 Later during the proceedings, evidence from Mr Ben Harris (SDA official) was that the SDA had prepared the comparison document10.

[23] It was put that if the applicant were to continue with her employment, and the Agreement terminated, she would have been $55.57 gross worse off in her fortnightly pay, due to the applicant’s roster pattern (working 5 weekdays in week one, and 4 weekdays and one Saturday in week two) if her wage rate was amended to the Award rate. To this extent, the application acknowledged that there may be other employees who may suffer financial detriment if the Agreement were terminated and their rate reduced by their employer. In particular, this would affect pharmacy assistants who work their ordinary hours Monday to Friday 8.00am to 7.00pm.

[24] It is submitted that whilst some employees would suffer financial detriment if their wage rate was reduced to the Award rate, other employees would be better off under the Award, taking into account the terms and conditions of the Award as a whole. It is submitted that the applicant may have been financially worse off if the Agreement was terminated, but she would have gain more favourable conditions under the Award such as annual leave loading and more generous meal break provisions.

Evidence of Benjamin Harris

[25] Mr Harris, the Assistant Secretary of the SDA, Western Australia provided a written statement 11 and gave oral evidence in support of the applicant’s case. Mr Harris’s responsibilities include matters relating to wages, conditions, industrial strategy and policy decision making in a number of industries, including the pharmacy industry.

[26] Mr Harris submitted that the SDA provided assistance (through Slater & Gordon) for Ms Menchon’s application as she was a member of the SDA at the time of application and during her employment with the respondent, and that the SDA share the same views as the applicant that the Agreement should be terminated.

[27] At paragraph 10 of Mr Harris’s statement, Mr Harris states that it is the view of the SDA that it is in the public interest to terminate the Agreement. It is submitted that the Award provides a safety net of minimum terms and conditions of employment, and that if the Agreement were subject for approval now, it would not pass the better off overall test (BOOT) as is required under s.186 of the Act.

[28] Mr Harris compared the rates of employees working at the Terry White Belmont Forum Pharmacy and concluded that 10 out of the 16 employees were financially worse off under the Agreement than the Award. Annexure A attached to Mr Harris’s statement contained the calculations for this conclusion.

[29] Mr Harris stated that he was unaware of any employees or the SDA having been approached to negotiate a replacement agreement.

Statutory declaration of Joanna Collins

[30] Ms Joanna Collins is a pharmacy assistant who is covered by the Agreement and works at the same pharmacy as the applicant did during her employment. Ms Collins filed a statutory declaration in support of the application, but was not present at the hearings to give oral evidence or be subject to cross examination.

[31] Mr Millman advised that Ms Collins was not comfortable to give her evidence in person stating that she had expressed concern about possible ramifications. The respondent raised an objection to Ms Collins’s statement being admitted as evidence on the basis that such evidence would not be subject to cross examination. 12 In particular, the respondent pressed an opposition to paragraph 20 of Ms Collins’s statement, and reference by Ms Collins to a pharmacy that is not within the federal system.13

[32] In response to the opposition raised by the respondent, the applicant’s representative agreed to exclude paragraphs 14 through 22 of Ms Collins’s statement. As such, paragraphs 14 through 22 of Ms Collins’s statement are taken to be deleted from her statutory declaration. The statement was allowed to be tendered, however due to the fact that the deponent did not make herself available for cross-examination, her statement is of limited value.

[33] Ms Collins stated that she generally works 12 hours per week over a fortnightly roster, and in that roster works Thursday evenings till 9pm, and a Saturday and Sunday shift. Ms Collins’s statement reads at paragraph 13 “I do not receive payment of penalty rates for evening work or weekend work in my current role”. Further at paragraphs 23 and 24 of the declaration, Ms Collins states that she had emailed the Commission (as per the directions issued on 28 January 2015) advising that she supported the Agreement’s termination because she did not receive penalty rates.

Respondent’s submissions and evidence

[34] Aside from the jurisdictional objection raised by the respondent, the respondent submits that the Agreement not only covers pharmacy assistants (as is the classification of the applicant) but also pharmacists, pharmacy students and pharmacy interns (known as pharmacy trainees in the Agreement). It also covers 50% of employers in the community pharmacy industry in Western Australia. 14

[35] The Agreement is said to provide consistent terms of employment in the community pharmacy industry for the employers covered by the Agreement and has done so for more than 5 years. It was submitted that the termination of the Agreement would result in uncertainty for employees and employers covered by the Agreement.

[36] The respondent further refers to the higher base rates of pay under the Agreement in comparison to the Award, and if the Agreement were terminated, it would be unclear as to whether employees would remain on the base rates set out in the Agreement or revert to the minimum Award rates.

[37] If the Agreement were terminated, the respondent submits that this would result in significant additional administrative costs to the respondent and other pharmacies as the businesses would be required to rearrange and vary their existing pay rate structures.

[38] The respondent refers to some employees potentially being ‘worse off’ in respect to their weekly pay, and in particular references Ms Menchon’s statutory declaration, whereby she states that the termination of the Agreement may leave her worse off in her weekly pay (based on the roster pattern that she may work).

[39] Finally, the respondent argues that at all times, the Agreement is subject to the “No detriment rule,” that is, to the extent that if the Agreement is detrimental in any respect when compared to the National Employment Standards (NES), the terms of the NES shall prevail.

Statement of Adrian Staltari

[40] The respondent relied on the written statement of Adrian Staltari, a pharmacist, director and shareholder of the respondent company. As was agreed between the parties, Mr Staltari was not required for cross examination. 15

[41] Mr Staltari was authorised by other employers covered by the Agreement to provide the views of the employers as expressed in his statement. 16 I note that this authorisation extends to approximately half the employers covered by the Agreement.17

[42] At paragraph 10 of Mr Staltari’s statement, he states that the Terry White Pharmacy in Belmont Forum employs approximately 17 employees, including 3 permanent salaried pharmacists, one casual pharmacist, pharmacy assistants and casual pharmacy students. Further, the vast majority of employees at the pharmacy (both full time and part time) work during the ordinary hours of the pharmacy between 8.30am and 5.30pm on weekdays, although some hours are worked outside this time span.

[43] In Mr Staltari’s statement, it states that the Agreement provides consistent terms of employment for the employers under the Agreement and has done so for more than 5 years. Mr Staltari opines that it is possible that a new multi-enterprise agreement could be made ‘in due course’ but does not elaborate on this possibility eventuating. The termination of the Agreement would create uncertainty for employees, and given the vast majority of employees employed by the respondent work Monday to Friday, 8.30am to 5.30pm, which the Agreement provides a higher hourly rate for, it would be unclear whether such employees would remain being paid on the current rates under the Agreement, or revert to the Award rate. 18 This change in pay rate structure would also result in significant additional administrative costs to the respondent.

[44] Mr Staltari’s statement refers to the applicant’s statutory declaration, whereby the termination of the Agreement would result in her suffering a financial detriment, had she remained in employment with the respondent, and that other pharmacy assistants would also suffer the same consequence.

Consideration

[45] As stated by VP Watson in Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous Union 19, the formulation of s.226 directs the Commission to the nature of considerations to be taken into account and the test to be applied to determine the matter. It displaces any general discretion in the matter. I will consider each of these factors in turn.

Is termination of the Agreement contrary to the public interest?

[46] The nature of the public interest test contained in s.226(a) is such that the test is a negative one, in that it is only considerations that are contrary to the public interest that go to the agreement termination issue. No party advised the Commission that there is any current or future negotiations planned for a replacement agreement with the Agreement having passed its nominal expiry date some 12 months ago and having already operated for a period of five years.

[47] In Tristar Steering and Suspension Australia Limited (Tristar), 20 and as adopted in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd21 (Aurizon), the Full Bench stated and reaffirmed the approach adopted by the Full Bench in Kellogg Brown and Root Pty Ltd and others (Kellogg)22,which deals with the public interest test, although with reference to the Workplace Relations Act 1996, which is couched in the same terms as the current public interest test under s.226 of the Act and remains apposite. The Full Bench in Kellogg stated:

“[27] It should be emphasized that the Commission's consideration of the public interest for the purpose of s.170MH(3) is directed to the consequences of terminating the agreement. In a given case, some consequences will be clearly predictable, others will be less so. For the most part the Commission should be guided by the likely foreseeable consequences of termination rather than speculation about possible consequences.”

[48] In Coca-Cola Amatil (Aust) Pty Ltd v Liquor, Hospitality and Miscellaneous Union-South Australian Branch and Others 23 (Coca Cola v Amatil) the Full Bench emphasised the notion of public interest as not only matters that might affect the public as a whole, but one that is distinct in nature from the interests of the parties themselves.

[49] The Full Bench in Aurizon reiterated this public interest approach at paragraph [129] of that decision stating:

“Section 226(a) requires a consideration of whether termination of the agreements is not contrary to the public interest. It seems to us that a consideration of the public interest will involve something that is distinct from the interests of the persons and bodies covered by the agreements. This distinction seems to be reflected in the structure of s.226. The question of how the public interest is to be assessed was considered by a Full Bench of the Australian Industrial Relations Commission in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000. 24 The decision in Kellogg Brown concerned an application to terminate a certified agreement pursuant to s. 170MH of the WR Act. The Full Bench observed:

“The absence of any reference to the interests of the negotiating parties in s.170MH(3) is significant. It follows that the views of persons bound by the agreement may be relevant to the exercise of the discretion if they shed light upon the effect of termination on the public interest, but they should not be given any independent weight. To do so would be to import into the application of the section something which on its proper construction it does not include.

The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them.” 25

[50] With respect to the public interest consideration, the respondent submits that termination of the Agreement would be contrary to the public interest due to the large number of employee classifications that the Agreement covers, the Agreement is not confined to pharmacy assistants, termination of the Agreement would also affect pharmacists, pharmacy students, pharmacy trainees and pharmacy interns. 26 The respondent further argues termination of the Agreement would therefore cause disruption and inconsistency for the employers covered by the Agreement as the Agreement provides consistent and clear classification structures for the engaged employees.

[51] As the respondent correctly asserts, termination of the Agreement potentially affects a wider audience, however, it is evident that ascertainment of the public interest may involve balancing countervailing public interests 27 and those interests need to be weighed up against public interest considerations that mitigate against termination of the Agreement.

[52] The respondents submits that the Agreement provides for consistent and clear classification structures and that the Agreement assists in ensuring certainty and stability for the pharmacy industry and employees. 28 There was no evidence given to the Commission as to what employers would do if covered by the Award in lieu of the Agreement in respect of adjusting wage rates.

[53] The applicant provided a document highlighting the differences between the Award and the Agreement, and has submitted that although the applicant, if she had remained in employment with the respondent may have been “worse off” under the Award, submits that the cessation of the Agreement and its impact should be considered in a more broader view in light of the public interest consideration.

[54] The applicant submits that the reduction and loss of entitlements under the Agreement that would otherwise be provided under the Award would lead to the finding that termination of the Agreement would be in the public interest. It is further submitted that granting the application would lead to better conditions of employment for employees covered by the Agreement as a whole. Despite the Agreement providing higher base rates of pay than the Award, the Award is more beneficial in entitlements and still offers a safety net for minimum terms and conditions.

[55] I have had regard to the submissions of the parties in relation to whether termination of the Agreement would be contrary to the public interest. I am not convinced that the arguments put forward by the respondent result in a conclusion that it would be contrary to the public interest to terminate the Agreement. The coverage of the Agreement extends to a large audience of employees and employers and there are benefits for and against the termination of the Agreement, however no factor/s push the weight of public interest considerations to concluding that terminating the Agreement would not be in the public interest.

Views and circumstances of the employees

[56] I am required to have regard to the views of the employees covered by the Agreement and the circumstances of those employees; including the likely effect termination of the Agreement will have on each of them. This issue was the subject of the Directions issued on 28 January 2015. In summary, employers covered by the Agreement were directed to notify their employees who are covered by the Agreement, inviting them to express their views to the Commission as to whether they thought the Agreement should be terminated.

[57] I am satisfied that all appropriate steps were taken to obtain the views of employees bound by the Agreement. Notices of listing indicating that the Agreement was the subject of an application for termination and hearing was mailed out to all employers covered by the Agreement, and was not confined to those employers represented by respondent.

[58] Only 7 employee responses were received arising from the Directions. These responses were forwarded to the representatives of both the applicant and the respondent, on 27 February 2015. Of the 7 employees who expressed an opinion, 6 of those employees indicated that they were happy with the current rates under the Agreement, and one employee; Ms Collins who prepared a witness statement but did not give evidence, supported termination of the Agreement.

[59] No party could say with any authority how many employees are covered by the Agreement, although Mr Jackson advised that when the Agreement was voted on there were around 1200-1300 employees covered. 29 Suffice to say that the vast majority of employees have not expressed a view and therefore are unknown. If the Agreement is terminated and the relevant employers revert to paying the Award hourly rate,30 some employees would be worse off and some will be better off with the more beneficial penalties payable under the Award. I have had regard to this potential consequence in arriving at my decision.

Views and circumstances of the employers

[60] As stated above, the Commission has taken all appropriate steps to notify employers covered by the Agreement of the application. At the 19 January 2015 hearing, the respondent’s representative advised that they also appeared for 29 employers covered by the Agreement in opposing the application.

[61] The respondent and the 29 other employers who have authorised the respondent to act on their behalf have been afforded the opportunity to make submissions and provide evidence in support of their opposition to the application. In this respect, I note that there are some 60 employers covered by the Agreement of which the views of approximately half are known.

[62] Mr Staltari; who was authorised to speak on behalf of 30 employers submitted that termination of the Agreement would likely create uncertainty for employers and employees. Expanding on this point; Mr Staltari submits that it is unclear whether employees would remain on the base rates set out in the Agreement or whether his pharmacy and potentially other pharmacies would seek to revert to payment based on the minimum rates of pay set out in the Award.

[63] It was not put by Mr Staltari why (at least on behalf of his own pharmacy, being the respondent to the application) it is unclear whether employees would remain on the base rates set out in the Agreement or whether he would seek to revert to payment based on the Award rates. As the owner of the respondent pharmacy 31that decision is clearly one that Mr Staltari himself could provide some clarity on.

[64] Mr Staltari also states that termination of the Agreement would result in significant additional administrative costs as he would be required to rearrange and vary the existing pay structures. This submission appears to be in contradiction to having stated that it would be unclear as to what would occur if the Agreement was terminated. In any event, I am not persuaded that additional administrative costs are a sound reason as to why the Agreement should not be terminated. This submission could be made in opposition to the termination of any enterprise agreement.

Conclusion

[65] The legislation mandates that on application by either an employee, employer or employee organisation covered by the agreement, an agreement that is past its nominal expiry date must be terminated if the circumstances identified in s.226 exist. In reaching my conclusion I have had regard to all of the material and evidence provided to me, and I have taken into account the views of the employers and employees who expressed an opinion. The SDA submit that their views are a relevant consideration in respect of public interest.

[66] In the matter before me, it is evident that there will be some employees who may suffer a financial detriment if the Agreement were terminated, and depending on what rosters are worked some employees will benefit from the termination.

[67] The Commission is required to terminate an agreement where the prerequisites in s.225 are met and where the Commission concludes that termination of the Agreement is not contrary to the public interest and it is appropriate to do so having taken into account the views of employees and employers and the likely effect that the termination would have on them.

[68] The provisions and requirements of s.225 have been met and there is no evidence before me that indicates that on the approach endorsed by the Full Bench of the Commission in Kellogg andenunciated in Aurizon, that it would not be appropriate to terminate the Agreement. The Agreement is not underpinned by the Award and is without a number of modern award mandatory requirements.

[69] As stated by the Full Bench in Aurizon at [176]:

“….Ultimately, it cannot be expected that terms and conditions of employment contained in an enterprise agreement with (will) continue unaltered in perpetuity after the agreement has passed its nominal expiry date. Terms and conditions may be altered by making a new agreement or by terminating the existing agreement. The statute guarantees the continuation of the safety net, not the terms and conditions contained in a nominally expired enterprise agreement.”

[70] For the reasons stated above, the Community Pharmacy Multiple Business Agreement (Western Australia) will be terminated.

[71] Accordingly, an Order [PR573071] to this effect will be issued. I will provide that the Agreement’s termination take effect from 1 February 2016 to enable employers’ sufficient time to accommodate any changes that need to be effected.

DEPUTY PRESIDENT

Appearances:

Mr Simon Millman; Solicitor and Mr Dustin Rafferty; legal officer for the SDA on behalf of the applicant

Mr Allan Drake Brockman and Mr Brian Jackson; Solicitors for the respondent

Hearing details:

Sydney with VC to Perth

2015

19 January

Perth with VC to Melbourne

2015

30 September 2015

Final written submissions:

Written correspondence from solicitors for the respondent received 8 October 2015

 1   PN31

 2   PN303

 3   Respondent’s short written outline of submissions dated 12 January 2015 and PN365

 4   See Mr Staltari’s witness statement at (26)

 5   PN307

 6   PN360

 7   PN308

 8   Appendix A

 9   See Application at 2.3

 10   PN507

 11   Exhibit A1

 12   PN83

 13   PN129

 14   At point 12 of the respondent’s submissions dated 12 January 2015

 15   PN177 to PN181

 16   Paragraph 14 of Mr Staltari’s statement

 17   Mr Staltari’s statement refers to only 58 employers covered by the Agreement, whereas the attachment 1 of the application, listing all the employers covered by the Agreement lists 60

 18   At paragraph 33.2

 19   [2010] FWA 2434

 20   [2007] AIRCFB 273

 21   [2015] FWCFB 540

 22   PR955357

 23   [2009] AIRC 438

 24 (2005) 139 IR 34

 25 (2005) 139 IR 34 at 40

 26   See point 29(b) of the respondent’s submissions dated 12 January 2015

 27   [2015] FWCFB 540 at paragraph 130

 28   Mr. Staltari’s statutory declaration at 33.9

 29   PN398

 30   Whether this occurs is speculation as no employer has stated this will or won’t occur

 31   See Mr. Staltari’s witness statement at (5)

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