C2001/3496, Transcript of Proceedings [2001] AIRCTrans 1657 (20 July 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8266
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/3496

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by CEPU
for orders in respect to alleged closure
of Wonthaggi Depot by TXU Electricity Ltd
and Another

MELBOURNE

10.50 AM, THURSDAY, 5 JULY 2001

Continued from 26.6.01 before Commissioner Holmes

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, could I have appearances please, or is there change in appearances? This is the section 127 application.

PN113

MR DIXON: No, there is no change, your Honour.

PN114

THE SENIOR DEPUTY PRESIDENT: Mr Maddison.

PN115

MR MADDISON: Thank you, your Honour, for bringing the matter on earlier than you originally suggested. Your Honour did that and we thank you consistent with a fax or letter dated 3 July, signed by myself. Your Honour, in that document the ETU also indicated that with great reluctance we felt compelled to seek that you no longer have any further to do with this matter and your Honour we did so by pointing to the transcript that the 127 when it was before Commissioner Holmes on 26 June 2001 and your Honour, I did make the assumption that the transcript had been provided to you because Commissioner Holmes did indicate that he would do that if the matter, the file was transferred to your Chambers.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, I have the transcript.

PN117

MR MADDISON: Your Honour, in the letter of 3 July I pointed to paragraph 84 which it may be argued on the face of it does not raise huge concerns but if I put the matter in I suppose the context that the ETU views that it might help to explain why we took the umbrage, if you like, to that paragraph.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes.

PN119

MR MADDISON: Your Honour, there was a section 99 that was before you on 7 June and you have re-listed that for report back Friday next, 13 July. That dispute, your Honour, was in respect to allegations of overtime bans which the company suggests were allegedly in place in response to again, alleged comments by the general manager of Enetech, Mr Grant. Those comments by Mr Grant, where he said that he had on at least two occasions had represented to the work-force that there would be up to 80 retrenchments, and we say that figures around that number have been reconfirmed through the mass meeting procedures.

PN120

Your Honour, that matter after the parties put what they deem necessary on transcript, went into conference, there was discussions before you and I am certainly not going to repeat on transcript the substance of any of those discussions to retain the integrity of the purpose of conciliation but I do say that my recollection was that either party was at liberty to bring the matter back on by seeking to do so through your chambers or that you would do so as requested.

PN121

It is in those circumstances, bearing in mind that the substantive matter was the threatened redundancies of up to 80 employees which in any event is a substantive matter. It is in those circumstances that after having viewed the transcript before Commissioner Holmes, and noting the comments of Mr Dixon that the matter had been followed up by your associate seeking to find out where they matter lay and that was followed up with at least TXU, but certainly from the ETU we received no such queries. It is in that context - - -

PN122

THE SENIOR DEPUTY PRESIDENT: That dispute was notified initially by TXU wasn't it?

PN123

MR MADDISON: Yes, that is correct, your Honour, that is correct. I do recognise in the normal course of events it would be the notifier who would seek to bring the matter back on, if that was necessary, although that is not always the case. Obviously the respondent in such a matter can also - it has been experience at least, your Honour, a request to bring the matter back on. In any event, your Honour, those are the circumstances that I submit raised a concern that it may be seen and certainly the ETU were not privy to any of what was passed on through your associate to yourself.

PN124

If there was anything passed on at all it is certainly unclear from our end. Mr Dixon's comments although it may be argued that the only information that was passed on was about that mass meetings took place. We say that it is a bit ambiguous as there were talks about an informal, what is the have you met. It also raised there may have been further communications other than the factual matter that mass meetings had taken place.

PN125

THE SENIOR DEPUTY PRESIDENT: Could I indicate to you, by the way, the only message I got was that there were discussions ongoing.

PN126

MR MADDISON: Yes.

PN127

THE SENIOR DEPUTY PRESIDENT: And that it was not necessary to re-list the matter at this stage.

PN128

MR MADDISON: Yes.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes. But anyway, go on. I am still not convinced that there is any reason for me to disqualify myself.

PN130

MR MADDISON: Yes.

PN131

THE SENIOR DEPUTY PRESIDENT: It seems to me that it is normal practice within this Commission for associates to contact parties to proceedings or for parties to proceedings to contact associates to just let the Commission know what the progress is in particular matters. It seems to me that that is not a bad thing given the fact that there are a number of old files that laid around here for a long time and had to be cleaned up and one way of ensuring that they don't just fall into the bin somewhere or not be processed or progressed is to follow up with the parties to ensure that they are still wanting to maintain the proceeding or wanting to discontinue it one way or the other.

PN132

MR MADDISON: Yes, and that certainly, your Honour, is an approach that the ETU encourages. With respect, your Honour, you did say follow up with the parties and we say that ETU in these circumstances is certainly a party in this matter. It was the circumstances that it wasn't followed up with all the parties and not knowing what communications had been passed through your associate that raised a concern from the ETU that there is a reasonable apprehension of bias and supported by authorities who have considered this matter. Now, if it is the case that that was the only communication that there had been communicated through your associated that there had been these meetings that were scheduled had taken place and nothing more that certainly, and that disclosure, your Honour, is certainly a matter that is considered when such allegations are made.

PN133

THE SENIOR DEPUTY PRESIDENT: Tell me this, Mr Maddison, did my associate have any communication with you about a convenient time to list the 127 when you indicated that you wanted it listed earlier?

PN134

MR MADDISON: No, your Honour.

PN135

THE SENIOR DEPUTY PRESIDENT: You didn't.

PN136

MR MADDISON: I had a discussion with your associate that your associate informed me that you had formed a view that you would re-list both the 99 and the section 127 on the Friday the 13th, and I informed your associate that - I withdraw the opening remark, that he didn't have any communication as an appropriate time. My recollection serves me correctly, I said I would need to get advice from the organiser involved at the meeting at the Wonthaggi Depot on Monday. I did receive that advice and then faxed through the document that we have discussed.

PN137

Your associate contacted me around the middle of the day on the Tuesday, the 4th, the Tuesday in any event if that was the 4th or not, it might have been the 3rd. I said to your associate that I had faxed through to the Registrar but he had not yet received it and I understand then that your associate did go and pick up the document and shortly after on the same day I believe he did have occasion to call me back and say that your Honour were going to re-list it for mention today at 10.45 and if that would be a convenient time. So the answer to your question, your Honour, is yes.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes, well, again, my experience here is that in section 99 matters or section 127 matters or section 170MW matters, the applicant or the notifier is the only party contacted by an associate to find out what is the convenient time to have the matter listed, or the urgency of the matter, from the perspective of the notifier or the applicant.

PN139

MR MADDISON: Yes.

PN140

THE SENIOR DEPUTY PRESIDENT: In those circumstances hardly ever is the convenience of the respondent considered.

PN141

MR MADDISON: Yes, that would be my understanding of the usual course of events, your Honour, and that is why I prefaced it by my understanding of where matters were left on 7 June in conference, that perhaps in this instance there would be a slight move away from that normal course of events in that because of the nature of perhaps the substantive matter that affected all parties certainly to different levels of degrees that my understanding and I may be wrong, your Honour, was that either party could inform your chambers and seek to bring the matter back on to, no doubt to ensure the matters were kept progressing in some kind of reasonable manner. It was in those circumstances that in reading the transcript I felt that there may be based on the case law and on this matter a reasonable apprehension of bias.

PN142

THE SENIOR DEPUTY PRESIDENT: What cases are you referring to. Is that the cae you referred to in your letter?

PN143

MR MADDISON: Yes, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes.

PN145

MR MADDISON: I have copies of that case if - - -

PN146

THE SENIOR DEPUTY PRESIDENT: That is all right. Well, perhaps, do you want to take me to any particular part of it?

PN147

MR MADDISON: Your Honour you have a copy of the CLR version?

PN148

THE SENIOR DEPUTY PRESIDENT: No, perhaps I will get the copy that you have there, if you want to take me to some part of it. Yes?

PN149

MR MADDISON: Your Honour, the quote that I have paraphrased is on page 346.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR MADDISON: At about point 6:

PN152

The fundamental principle that the judge must not hear evidence or receive representation from one side behind the back of the other.

PN153

Then it goes on to quote, his Honour, Gibbs CJ, goes on to quote another decision re ex parte - - -

PN154

THE SENIOR DEPUTY PRESIDENT: Yes.

PN155

MR MADDISON: To Ciccone.

PN156

There should be no communication or association between the judge or one of the parties or legal advisers or witness of a party otherwise in the presence of or with the previous knowledge and consent of the other party.

PN157

Your Honour, on page 349, at the bottom of that page, the final sentence which commences:

PN158

I rather think that the present case is governed by analogous principle that justice must not only be done but must manifestly be seen to be done. ...(reads)... of the other party against whose interest they were made, it is enough that they might do so.

PN159

On page 351, comments of Mason J, as he was then, at about point 8 of the page. His Honour, Mason J says that, in the paragraph that commences as:

PN160

McInerney J pointed out -

PN161

again, the last sentence, your Honour -

PN162

the circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge.

PN163

We say that, your Honour, the situation is one of the 80 proposed redundancies and your Honour earlier commented on the nature of your disclosure is obviously something that is weighed in the balance when you will consider this application.

PN164

THE SENIOR DEPUTY PRESIDENT: Well, I have indicated the nature of the disclosure. Well, simply the matter is still under discussion between the parties and there is no need to re-list it at this time.

PN165

MR MADDISON: Yes.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Do you want to say anything else?

PN167

MR MADDISON: No, that is all I - thank you, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dixon, did you want to say anything?

PN169

MR DIXON: Your Honour, can we go - let me say at the outset, that we entirely confirm the type of communication which passed, which was ordinary and procedural and above board between your associate and myself. That is in fact what I set out before Commissioner Holmes, seeking only to make sure there was no overlap between the two matters. The matter before you on 7 June deal with at least four or five matters which were then sent into conference and the parties, not unusually in this Commission, were directed into conference to keep talking and the matter was adjourned.

PN170

Theoretically, this file continues in this Commission and as I said in front of Commissioner Holmes actually under your stewardship rather than your chairmanship because you were not actively involved or programmed to be involved in those meetings. At some stage later I was contacted by your associate and asked if the meetings had taken place or how things were going, how things were progressing. I think there was a reference to you may call a report back. I indicated that the meetings had taken place and everything was proceeding between the parties. I was not personally involved in those meetings. I was not aware in any detail of what had taken place but they were meeting as they were scheduled before yourself, your Honour, simply and straight forward.

PN171

Not unusual programming matter. Can I say it falls down at first instance in any legal sense in that there was no submissions or substantive evidence or contentions or matters of representation put to you to influence your decision or in any way that could be seen by a reasonable person to affect your mind in a fair hearing of a section 99. Before Commissioner Holmes I indicated, and it is regrettable that the transcript picks up so clearly ones hesitation when one is talking but it does. We passed on, that is myself, this is in paragraph number 84, and we passed on that meetings had taken place. The mass meetings which had - he, with respect, yourself, sir, had been informed of in conference. That was it. That is what I said on transcript. That was it.

PN172

Now, if that is the end of the matter, that is your Honour, the end of your matter. C number 3155, that was fine with my clients and myself. This is a new matter. That is the section 127. I understand the difference between a 127 and a section 99, but in my view the matters raised overlapped because in my view the section 127 matters arose out of the series of conferences you programmed, or the parties programmed in front of you on 7 June. Now, Mr Maddison may have a different view but that is the only reason I arranged it. That is the extent entirely.

PN173

That was it. We didn't mind whether the matter were handled separately or together. If I could just take you back briefly to complete the submissions before Commissioner Holmes and deal with them and to reassure Mr Maddison that that was the extent of it, if I take you back to paragraph number 57 and what I said later in 84 is no more than this, paragraph number 57 says:

PN174

I am raising it now that going forward, if this -

PN175

that is the 127 is to proceed -

PN176

that we would want that clarified as to whether this is a new matter -

PN177

and we don't mind, to be honest. It is no problem to us at all.

PN178

or whether in fact it is part of the hearing before Senior President Lacy which has then been put into abeyance, adjourned while the parties met and they have been meeting, and you Commissioner Holmes, have heard that they have been meeting.

PN179

That was the entire matter before Commissioner Holmes. Your Honour, Mr Maddison has taken you to JRL, the High Court case and I have already made the point that the real test behind which I will come to briefly, because I don't think it needs a lot to warrant where we have a procedural, administrative inquiry by an associate of a member of the Commission conducting proceedings which is answered simply by the notifiers representative that it any way comes within the legal test of bias. If one looks at some of the more intense perhaps perceptions of bias, which have been found not to be, then this pales into insignificance and should not be in fact taken any further. Deputy President Acton, as a senior industrial officer of the ACTU was involved in the allocation of coverage in the conference industry. 3 years later she was deciding a matter of the same type and she found that that was not sufficient to disqualify herself.

PN180

Deputy President Polites was whilst a lawyer for one of the parties giving opinion in a matter. He was then - it was then before him some 3 years later. He disqualified himself and the High Court said, there was no need to. They were dealing with the matters in issue, or could have been related matters. Bias is generally found when you may have found a decision which has influenced you in coming to the hearing which is presently before you. The mere fact that you have been - made a program inquiry through your associate comes nowhere near anywhere which should be said that would cause a reasonable person sitting in the back of the Court room to apprehend that you would not hear this application by the ETU with a fair and open mind, in our submission.

PN181

THE SENIOR DEPUTY PRESIDENT: Mr Maddison's argument is though that he does not know whether there was something more or less than what I say or what you say was communicated between you and my associate.

PN182

MR DIXON: That is true. That is true. You have indicated the nature of the communication and I have confirmed in open transcript from my point of view. Let me take it then to a quote in JRL on page 351, which Mr Maddison came close to and which is the comments by Mason J - - -

PN183

THE SENIOR DEPUTY PRESIDENT: Yes.

PN184

MR DIXON: When she says:

PN185

The receipt by a judge -

PN186

this is half way down the page -

PN187

McInerney J pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk.

PN188

Again, we repeat, there was no communication. The communication was not of that nature.

PN189

A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand although the terms of a subsequent disclosure by the judge of a communication ...(reads)... the circumstances in each case are important.

PN190

Let me just put that this way too, your Honour. That clearly says that a subsequent disclosure by yourself of the circumstances will in many cases be sufficient to dispel the reasonable apprehension of bias. The circumstances in each case are important as Mr Maddison has put.

PN191

They include the nature of the communication.

PN192

That has been clarified. The situation which had took place. You had adjourned the parties into conference. They had let you know that there was a series of conferences taking place and mass meetings of employees with the union and the company addressing them. They were going off to do that. It was left, as Mr Maddison quite rightly said, with the liberty to a call back. So that is the situation in which it is found. It is not unusual then to say, do I call this back. That is what happened. Its relationship to the issues for a determination, should I call this back, do you need any further proceedings does not bear upon, in my submission, I can't see how it bears upon either the 127 application which is now before you in the sense of it is industrial action being taken by the company and therefore should be stopped. Nor is it, this is a dispute because there is a ban of overtime. Whether or not there should be a report back does not impact upon them. So in relationship to issues of determination, it could not be said to be biasing your mind. The nature of the disclosure made by the judge, you have stated clearly on transcript what has taken place.

PN193

The circumstances are all important and to be weighed up, in our view on the authorities then there is no apprehension of bias. There could not be from going forward. Mr Maddison has raised it. We would suggest that that is perhaps a little bit paranoiac or a little bit over the top. If he had any doubts he was more than happy to contact - prepared or could have contacted my good self. We are uncertain as to why he has raised it in the sense it was clearly made at the time on transcript before Commissioner Holmes that it was regarding whether meetings had taken place and that was it. I mean, I sealed it off. That was just an actual expression, your Honour, I didn't have any of this in mind when I said that.

PN194

The test which is in authorities which I can take you to but with Commissioner O'Connor, who joined applications together of the same nature on the same morning, and invited the two unions into his Chamber, one of the unions into his Chambers, he had a series of applications by the HSF and one by the HSUA and invited the two unions to come before him to see if they should be heard together as procedurally and did not notify the employer parties but he found - when he was challenged refused to disqualify himself because he again quoted from that same test. Perhaps I could pass this quote up to you.

PN195

THE SENIOR DEPUTY PRESIDENT: Just the decision of Commission O'Connor will relate me to.

PN196

MR DIXON: This is to - yes, the case is Print M1285, Commissioner O'Connor v Australian Nursing Federation.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes, perhaps we could in the absence of my associate bring it up for me.

PN198

MR DIXON: With Mr Maddison's leave, Mr Gardner will approach the bench. Your Honour, let us take some time with this, if I can. It is the Australian Nursing Federation v Health Services Union of Australia. Commissioner O'Connor had before him 28 applications to vary the ANF awards by 8 per cent as a special case. Applications have also been made by the HSUA to vary their awards in exactly the same way. Those had been lost in the Commission. They were asked to be joined to the HSF awards but had failed to be, but they were found out on the morning. As he says at the bottom of the front page:

PN199

Having regard to the animosity that was known to exist between the two unions Commissioner O'Connor asked his associate to phone the HSUA and find out if they discussed the ...(reads)... or discussed the matter with them.

PN200

Over the page:

PN201

I asked my associate to get someone from the ANF to talk to them about them it was now 15 minutes prior to the commencement of the hearing. Mr Gardner, representative, suddenly came to his office ...(reads)... The ANF saw no problems with the matters -

PN202

this is the second paragraph -

PN203

with the matters being listed with theirs.

PN204

At that point, Commissioner O'Connor, as he says in the third paragraph:

PN205

- was of the belief that the employers respondent to the five awards had been served with the application by the HSUA.

PN206

Now, subsequently, Mr Douglas QC, acting for the states of Western Australia and Tasmania and Victorian Hospitals Association raised the apprehension of bias. In a further hearing he then asked for him to disqualify himself, Commissioner, to disqualify himself. There were submissions I might say by the HSUA which said that they thought the request for - the allegation of bias was posturing designed to delay and frustrate, a smoke screen, mock serious, building a skyscraper to conceal mice.

PN207

In any event, Commissioner O'Connor heard the submissions regarding whether he should disqualify himself and on page 4 of 6, if I can take you to that, your Honour, comes to the conclusion - refers to R v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group where it must be borne in mind these are principles to be not found in a fixed body of rules applicable flexibly at all times. Your Honour it is then quote, Tucker J in Russell v Duke of Norfolk:

PN208

The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with -

PN209

and so forth. That is, in my respectful submission, the very words that have been picked up by the High Court and which are reflected here and which I have dealt with in answer to the High Court's requirement, your Honour, and will not go through again. Commissioner O'Connor referred to the reasonable apprehension, the reasonable suspicion in the minds of those who come before the Tribunal or a member of the public that the Tribunal might bring a fair and unprejudiced mind to the resolution of the question arising before the Tribunal.

PN210

THE SENIOR DEPUTY PRESIDENT: Where are you reading from?

PN211

MR DIXON: Sorry, that is the fourth last paragraph:

PN212

In all the references -

PN213

page 4 of 6 -

PN214

In all the references Mr Douglas relies upon the word "reasonable" occurs throughout ...(reads)... for the Tribunal.

PN215

At the very bottom Commissioner O'Connor says, in the second sentence of the last paragraph:

PN216

The reasonable man sitting in the body of the Court must have some evidence of circumstances to base his apprehension of bias upon without such his apprehension would be unreasonable.

PN217

Can I take you then down to the bottom third of the page 5 of 6, where Commissioner O'Connor goes - I only use this, your Honour, not in any binding precedent but as an indication of another way it is being treated on a very similar matter.

PN218

THE SENIOR DEPUTY PRESIDENT: I had an impression, I may be wrong about this, that this went further than - Commissioner O'Connor's was upheld, is that right?

PN219

MR DIXON: I'm not sure. I wasn't able to find - Mr Gardner may well be able to help us there.

PN220

MR GARDNER: Yes. Your Honour, my understanding is that is the case that it did go to the Industrial Relations Court of Australia, as it then was, before Lee and North JJ and Wilcox CJ. I only have an extract from the Australian Industrial Law Review.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes, I am familiar with the decision actually, I know it. Yes, thank you, Mr Dixon.

PN222

MR DIXON: Thank you, your Honour. If I can deal with the rest of it briefly, if your Honour is familiar with it. He turns to it and in fact was quoted to him:

PN223

The fundamental principle a judge must not hear evidence or receipt representation from one side behind the back of another -

PN224

which is the JRL case and again I repeat the question of "evidence or receive representations", that did not occur. That did not occur. It says that no evidence or submissions which suggested the Commission receive representation or heard evidence from any party. What was quoted in that was that disclosure has occurred and is sufficient to dispel, in their submission, any reasonable - any conceivably reasonable apprehension that you would bring the matters you were dealing with, subject to what we said about that fair and impartial mind.

PN225

There are other decisions, your Honour, which I could take you to but again they repeat the same tests and it would just be emphasis over and over again. There is the decision of the appeal bench in Print PR905310, which is the appeal in Long v Vision Instruments Limited. President Judice Giudice, Senior Deputy President Kaufman and Commissioner Grainger, 18 June 2000, against a decision of Senior Deputy President Watson as to whether he should withdraw. In that case, if I can just refer you to it briefly, he was hearing - Senior Deputy President Watson was hearing a termination of employment matter when the applicant's solicitors wrote to him the day before, working day before, saying the matter is now settled and we will not be proceeding on Monday.

PN226

The respondent - the company's solicitors then wrote to the Senior Deputy President saying: We understand the applicant is discontinuing his case and we are not happy about that at this stage and will be asking for costs. Subsequently the matter went on and the solicitors for the applicant said that Senior Deputy President Watson had been biased or could have been biased because he had seen a letter which said the applicant was intending to discontinue the day before and therefore he may form the view there was no merit in the claim and the applicant didn't think there was any merit and he should withdraw.

PN227

Now, he had had communications addressed to him which addressed with the subject matter but he said he wouldn't be biased, and neither he would be, and the Full Bench upheld that decision and said that they didn't think he would bring less than a fir mind to the hearing. Now, nothing like that approaches what has happened here. So your Honour, I don't think I can really take the matter any further by going through ad nauseam, the questions of bias.

PN228

THE SENIOR DEPUTY PRESIDENT: No. I think the principle is pretty well stated in those decision that have been passed up and you have given ample examples, I think, of situations that might or might not attract the bias disqualification. Thank you. Mr Gardner.

PN229

MR GARDNER: Your Honour, we support and adopt the submissions of Mr Dixon. The wheels of the Commission will come to a grinding halt if the type of procedures involving associates contacting parties in relation to procedural matters would come to be prevented. I do not think Mr Maddison, from what he says, is suggesting that there is anything untoward in a call from an associate which is purely relating to a procedural matter. Bearing that in mind, we say his application is without basis. The test, as Mr Dixon points out, is whether there can be, in the circumstances, a reasonable apprehension of bias such that there might not be the level of impartiality which should otherwise exist.

PN230

We say that, when you look at the totality of the circumstances, an objective bystander could not form a reasonable view that there is an apprehension of bias and do so on the basis this was a section 99 application brought by TXU and Mr Dixon had referred to a discussion between himself and your associate about the status of that matter. That is entirely proper and, indeed, not unusual. So we say that in the absence of anything further, at best Mr Maddison can only speculate about what might have been and that is simply not enough to found or satisfy the test of reasonableness. If it pleases the Commission.

PN231

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Gardner. Mr Maddison.

PN232

MR MADDISON: Just very shortly, your Honour. My friend, Mr Dixon, in my submission, seemed to slide over the scale that we were alleging perhaps that you were biased and we say, one, that is certainly -if that came out of any of my submissions, that is certainly not what I was implying at all, that you would be in any way biased.

PN233

THE SENIOR DEPUTY PRESIDENT: It was the apprehension.

PN234

MR MADDISON: That is correct. It does not have to be that whatever was put to you may - that the outcome of that may influence you but the perception of such is what we were complaining about as - - -

PN235

THE SENIOR DEPUTY PRESIDENT: You do not suggest, do you, that the nature of the communication, in this matter, could possibly give any reasonable person an apprehension of bias?

PN236

MR MADDISON: All I would say to that, your Honour, is the substantive matter, from the union's perspective is about 80 redundancies. Our members, who are at this stage all of them potentially going to be - could be one of those 80, my experience in such matters they get through a process like this, a very quick legal education. They follow all the matters in the Commission very, very intently and they are ringing up all the time wanting to know where the various matters lie and the information is being disseminated to them about these matters. The circumstances I indicated at the outset where, as Mr Gardner quite rightly points out, that it is normal practice that parties be contacted and on this occasion my initial complaint before hearing the nature of that communication was that not all the parties had been contacted and we did not know the nature of that communication.

PN237

THE SENIOR DEPUTY PRESIDENT: As I indicated before, I don't know, in fact, whether my associate contacted the other parties when they sought your communication of convenience for hearing your 127 application. Now, I know that I was told that the view of the union was the matter ought to be listed at an earlier time rather than a later time. Now, that is the only communication I got back and on that basis this matter was listed but I have no knowledge of whether or not my associate contacted the other parties about the matter on that point.

PN238

MR MADDISON: Your Honour, just from reading paragraph number 80 - 84, from the matter before Commissioner Holmes, it does appear that it was more than just a convenient time to relist it but where the - - -

PN239

THE SENIOR DEPUTY PRESIDENT: Where does that appear from?

PN240

MR MADDISON: We passed on that meetings had taken place, the mass meeting which he had formed in conference and that was it - - -

PN241

THE SENIOR DEPUTY PRESIDENT: Well, that was it.

PN242

MR MADDISON: Well, I prefaced that earlier, with respect, your Honour, with the fact it seemed a bit ambiguous earlier on, in that same paragraph, as to be fair, was more or less than that was it was passed on.

PN243

THE SENIOR DEPUTY PRESIDENT: I don't see it personally but if you can show me how that inference arises from what is said there, well I will perhaps appreciate your point.

PN244

MR MADDISON: Your Honour, with respect we say Mr Dixon says you know an informal - well, I don't know what "you know an informal" is. I mean, that was - - -

PN245

MR DIXON: Can I clarify that perhaps, your Honour. Let me reassure Mr Maddison - I was worried about the transcript - I simply saying I had raised it before Commissioner Holmes because it was still, in my view, an active file before Deputy President Lacy. We had been followed up by Deputy President Lacy's associate saying - in other words, it wasn't a formal inquiry come to the Commission. There is no date set. It was: Have they met? As I said earlier, the inquiry was, and I am guessing here: because the matters have been scheduled before you there were suppose to be meetings taking place.

PN246

Your associate, not unusually in the proceedings of this Commission, has said: What is happening? Should we schedule a report back? I said, "There are meetings taking place. Everything is going along." Literally that is it. My note of it is: Mass meetings taking place. That was it. So the informal - it was an inquiry. I could have said that we were contacted, as a follow up, by Deputy President Lacy's associate. We were contacted inquiring as to whether there was anything further needed in that matter and I said that the meetings have taken place. I regret that my inarticulate response was picked up so well by transcript but I am only trying to get out that it was a call by your associate in the ordinary course of scheduling and of reporting. That is all that paragraph said. That was it. I was trying to draw a distinction between has that finished and is this going on.

PN247

MR MADDISON: Nothing more to say about that matter other than Mr Dixon made some submissions, in the matter before Commission O'Connor, as to the reason why Mr Douglas QC, on that occasion may have made that application and one of the reason purported was it was designed to frustrate the proceedings. If any such allegation is raised in this instance, we would strongly deny them because we would want the matter brought on quicker and the letter of 3 July certainly points to that and that is not the intention of the ETU in this matter to attempt to frustrate proceedings in any shape or form. If your Honour pleases.

PN248

THE SENIOR DEPUTY PRESIDENT: I do not propose to disqualify myself from hearing the section 127 application or from dealing with the section 99 matter in the event that matter has to be relisted at some stage in the future. It seems to me that in the interest of administrative efficiency, it is appropriate for associates to have contact with parties or a party to a proceeding, in particular the initiating party, to confirm whether or not the matter is proceeding in order that that file may be closed in the event that there is no further requirement for the Commission to assist in the matter. I do not propose, at this stage, to give my full reasons for decision but will be a written reason in due course. Is there any urgency about that, Mr Maddison?

PN249

MR MADDISON: Certainly not, your Honour. I haven't an argument with that. The heavy work-load that your Honour has to put up with and we want to further increase that work-load your Honour.

PN250

THE SENIOR DEPUTY PRESIDENT: Well, I can indicate to you that in fact one of the reasons for confirming that matters might have to be listed or not is the fact that I do have a busy schedule interstate over the course of this month and if any matters are to be listed, they have to be listed within these first 2 weeks otherwise I will be away for 2 weeks.

PN251

MR MADDISON: With that in mind, your Honour, would it be convenient now to further program the section 127?

PN252

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN253

MR MADDISON: Your Honour, when we were before Commissioner Holmes - no doubt they are on your file - the union handed up two witness statements which were marked as C1 and C2.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes.

PN255

MR MADDISON: C1 being Mr Ashley Satori, the shop steward at the Wonthaggi depot and C2 being the witness statement of Darren Riley and prior to that the union had received a witness to summons which was served on the parties.

PN256

THE SENIOR DEPUTY PRESIDENT: The union had received the summons?

PN257

MR MADDISON: Yes. We had sought and had been returned signed by Commissioner Blair and had been served on both TXU and Enetech.

PN258

THE SENIOR DEPUTY PRESIDENT: This is in relation to the 127 application?

PN259

MR MADDISON: Yes, your Honour. I think the transcript indicates from the respondents there was going to be arguments and submissions as to whether or not those documents should be produced. Your Honour, I also have today further witness statement which I propose to hand - - -

PN260

THE SENIOR DEPUTY PRESIDENT: Did you wish to deal with the summons today?

PN261

MR MADDISON: No, I just indicate that and I will go - - -

PN262

THE SENIOR DEPUTY PRESIDENT: The programming.

PN263

MR MADDISON: Yes. Your Honour, I have a further summons - a witness statement of Peter Mooney which is an official of the ETU who looks after the Latrobe Valley area and was at a meeting of the Wonthaggi depot on Monday, 2 July. The summons seeking further documentation in respect to the lease arrangement between Enetech, who currently rent the land and the depot at Wonthaggi, documents relating to that leasing arrangement between Enetech and the owner or the real estate who looks after the property on behalf of the owner.

PN264

THE SENIOR DEPUTY PRESIDENT: Yes. You are seeking to have that issued now, are you?

PN265

MR MADDISON: Yes, your Honour.

PN266

THE SENIOR DEPUTY PRESIDENT: I will hear what Mr Dixon and Mr Gardner have to say about it but my inclination is to issue summons where they are not blatantly vexation and in the event there is some basis for excluding the material at some subsequent time then the appropriate submissions can be made at that time.

PN267

MR MADDISON: Yes.

PN268

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dixon.

PN269

MR DIXON: Your Honour, we have no objection to that - I speak to TXU and Mr Gardener speaks for Enetech, who is the lessee but we just had a quick word there and we have no objection to that procedure being taken. It is obviously a matter in issue but we reserve right to make submissions at the end.

PN270

THE SENIOR DEPUTY PRESIDENT: Of course. After we have adjourned today, if you just wait around my associate will bring it out signed and sealed and so forth.

PN271

MR MADDISON: In respect to the program before Commissioner Holmes, Mr Gardner and myself both made submissions in respect to programming. My suggestion, your Honour, was the respondents in this matter file statements in response.

PN272

THE SENIOR DEPUTY PRESIDENT: You have now provided all of the statements that you are relying on, have you?

PN273

MR MADDISON: There may one short supplementary statement by Darren Riley which I can have to the parties at close of business tomorrow at the latest.

PN274

MR DIXON: I wonder if Mr Maddison would like, at the same time perhaps, bless us with an outline of his submissions at the same time; were you intending to that? I think perhaps we would then be able to reply with our witness statements and outlines, your Honour, the following week and take advantage of the timetable the following week for hearing.

PN275

THE SENIOR DEPUTY PRESIDENT: You will have to come over to Perth if you want it heard the following week.

PN276

MR DIXON: I was once invited by Commissioner Merriman to come to an arbitration in Perth but I think it is just something to do with the Test that was going on at the time.

PN277

THE SENIOR DEPUTY PRESIDENT: I don't think there is any Tests over there in 2 weeks or the week after next, is there?

PN278

MR DIXON: Your Honour, what dates are you away from?

PN279

THE SENIOR DEPUTY PRESIDENT: I will be away for 2 weeks in fact, from 16th to 20th.

PN280

MR DIXON: Sorry, your Honour, perhaps put it another way. Are you available Monday 30th for a hearing? We can exchange papers between ourselves.

PN281

THE SENIOR DEPUTY PRESIDENT: Yes, I am but is there any greater urgency than that date?

PN282

MR DIXON: The matter was left by Commissioner Holmes on this basis, your Honour, no-one would be affected. The lease runs out on 11 August. No-one would be affected prior to that time. In a sense no-one will be shifted away prematurely or earlier than that. So the cut-off date, if you like, is 11 August.

PN283

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Maddison?

PN284

MR MADDISON: If it is convenient to yourself, your Honour, to list the matter on the week beginning 30 July.

PN285

THE SENIOR DEPUTY PRESIDENT: How much time do you think it might take? You have three witnesses, as I understand it, is that right and a possible fourth.

PN286

MR MADDISON: The fourth statement will be a second statement of Darren Riley so it will be the same number of witnesses, your Honour.

PN287

THE SENIOR DEPUTY PRESIDENT: Sorry. There will be some debate, perhaps, about production of documents and then some time required to look at documents if they are released?

PN288

MR MADDISON: Yes.

PN289

THE SENIOR DEPUTY PRESIDENT: So you are looking at a day there, as I understand it, with your three witnesses.

PN290

MR MADDISON: Yes.

PN291

THE SENIOR DEPUTY PRESIDENT: What about you, Mr Dixon.

PN292

MR DIXON: My role will be fairly short in this given our position which is as a legal employer. The primary conduct of the lease and the decision of Enetech, so Mr Gardner - ours will probably be one witness at the most, if that.

PN293

THE SENIOR DEPUTY PRESIDENT: Mr Gardner.

PN294

MR GARDNER: Your Honour, we have are likely to have two witnesses, depending what further material is required. I would imagine 2 days would not be unreasonable.

PN295

THE SENIOR DEPUTY PRESIDENT: Altogether?

PN296

MR GARDNER: Yes.

PN297

THE SENIOR DEPUTY PRESIDENT: For submissions and witnesses?

PN298

MR GARDNER: Yes.

PN299

THE SENIOR DEPUTY PRESIDENT: Very well. In that case, I will list it for 30 and 31 July, is that convenient?

PN300

MR DIXON: Yes, your Honour.

PN301

THE SENIOR DEPUTY PRESIDENT: Perhaps there is not so much pressure in terms of getting the witness statements done in that event and perhaps if I direct - at this stage, subject to what the parties think, my present thinking is the applicant file and serve any further witness statements upon which it seeks to rely and any evidentiary material upon which it seeks to rely on or before - would 13th be sufficient time to do that?

PN302

MR MADDISON: Yes, your Honour.

PN303

THE SENIOR DEPUTY PRESIDENT: Then the - - -

PN304

MR DIXON: That would be including an outline, would it, your Honour?

PN305

THE SENIOR DEPUTY PRESIDENT: Yes, including an outline.

PN306

MR DIXON: Mr Maddison just clarified that with me.

PN307

THE SENIOR DEPUTY PRESIDENT: I didn't say outline but, I mean, by evidentiary material I mean any documents but I should also add any - your outline of argument, yes and that the respondents file and serve any witness statements upon which they seek to rely on, the evidentiary material which they wish to adduce on or before 18 July - close of business on 18 July 2001. The matter be listed for hearing on 30 and 31 July 2001. I will incorporate those directions in the notice of listing that goes out in any event. Is there anything else?

PN308

MR MADDISON: No, thank you very much.

PN309

THE SENIOR DEPUTY PRESIDENT: Mr Dixon?

PN310

MR DIXON: No, thank you, your Honour.

PN311

THE SENIOR DEPUTY PRESIDENT: Mr Gardener?

PN312

MR GARDNER: No, thank you, your Honour.

PN313

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter now and my associate will bring out to you in a moment the summons to witness. Let us adjourn the matter.

ADJOURNED UNTIL MONDAY, 30 JULY 2001 [11.47am]