C3745/500, Transcript of Proceedings [2001] AIRCTrans 166 (7 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 5986

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER SIMMONDS

C NO 37455 OF 2000

ENTERPRISE BARGAINING AWARD

APPLICATION PURSUANT TO SECTION 111(1)(B)
OF THE ACT BY G. & K. O'CONNOR PTY LTD FOR
CERTIFICATION OF THE G. & K. O'CONNOR PTY
LTD AND THE AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES UNION VICTORIAN MEAT PROCESSING
AGREEMENT 1992

MELBOURNE

11.10 AM, FRIDAY, 16 FEBRUARY 2001

CONTINUED FROM 20.12.00

PN1164

SENIOR DEPUTY PRESIDENT POLITES: In relation to this matter, we received some correspondence on more than one occasion. The first applying in a sense to adjourn the matters and the Commissioners responded that we weren't supposed to adjourn the matters other than as a result of the hearing today and the second foreshadowing some amended - an amended application under section 111(1)(g). I suppose it is too much to hope that the parties at the bar table have discussed the order in which addresses might be made in relation to any of these matters.

PN1165

DR JESSUP: It is too much to hope for, your Honour, but in so far the Commission was informed that we intended to amend the application for an award, all we intend to do is to tell the Commission of one of the paragraphs and the grounds upon which we will no longer rely but we don't propose to make any formal amendment to the application. That is one of the summary grounds in paragraph 28 of the application. If the Commission would turn to paragraph 28. Sub-paragraph (h) in paragraph 28 starting with the words: so long as the union, that is a provision upon which we no longer rely.

PN1166

If the Commission pleases, this arises out of a circumstance which was known to the Commission last time, namely that the offer to the company's employees to accept Australian workplace agreements to the extent that those offers have not yet been taken up has now been withdrawn. That was part of the material upon which the - well, which the union put before the Commission last time and so it won't come as any surprise to the Commission that that has happened. Partly to reflect that change in emphasis, we would now wish to hand up a replacement set of submissions.

PN1167

I think we have previously handed up a replacement set of submissions once before. This time the amendments are underlined and there are no changes before paragraph 49(d)(a) on page 15. The changes will be self-explanatory and we will, to the extent necessary, elaborate upon those matters when the stage is reached that we make our final submissions in the proceedings or we get an opportunity to speak to the material which we have filed, if the Commission pleases.

PN1168

SENIOR DEPUTY PRESIDENT POLITES: Thank you, Dr Jessup. Mr Rothman, our prima facie view is that we call on you to pursue your application under section 111(1)(g).

PN1169

MR ROTHMAN: Your Honour, there are two - I'm sorry, it is the first time I have seen the amended application.

PN1170

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN1171

MR ROTHMAN: I was just looking through the matters that were amended and making some preliminary assessments as to their correctness. Do I understand from my learned friend's application for amendment that he has now crossed out or struck out 28(h) of his application but 28 - paragraph 28(i) and (j) and (k) remain in and I will operate on that basis. Your Honours have seen - before we do anything else, we faxed through to the Commission as your Honour has noted an amended application under 111(1)(g)(iii), (iv) and (v).

PN1172

If it is convenient or more convenient to the Commission, we can hand up original versions rather than having to deal with - I don't know how good or bad the fax copy is and I just think it is better if there is an original on the file. That has been filed and served earlier and to the extent that we need leave to do that, we seek leave to do that. The amendments include paragraphs - include into the application paragraphs 8A, 8B and 8C and otherwise don't amend the document.

PN1173

SENIOR DEPUTY PRESIDENT POLITES: Is there any objection to leave to amend the application?

PN1174

DR JESSUP: No, your Honour.

PN1175

MR ROTHMAN: I understand also the Commission has been provided with and a copy has gone to my learned friend's instructing solicitors being documents upon which the union would rely in relation to it. I refer in particular to the letter of 15 February 2001 being a list of some 21 documents which should have been - should have arrived in folders and a covering letter and I'm just checking that the Commission has all of that.

PN1176

SENIOR DEPUTY PRESIDENT POLITES: My understanding is that we do, Mr Rothman, yes.

PN1177

MR ROTHMAN: Lastly a list of authorities that was handed also on the 15th of February or served on the 15th of February. Now, your Honour, the last - the expression the last shall come first - the last document to which I refer is a letter dated 31 January 2001 which is the letter I think your Honour referred to earlier in suggesting that there be an adjournment. While the description of the letter is not inappropriate, the letter actually requests a directions hearing prior to today so that the matter could be agitated before today.

PN1178

We didn't expect that the Commission would act on the letter as such but in any event, as I understand the Commission's response, it is a response which is such that whatever application we have for an adjournment ought be made today and I therefore proceed on that basis and we make such an application. We make the application for a range of reasons. Your Honours would be aware that - that is putting it mildly - your Honours would be aware that there has been a history of industrial disputation at the Pakenham plant primarily, and certainly in the last two or two and a half years, as a result of a inability to agree on amendments to an agreement that was operating at Pakenham, coupled with a lockout by the employer which lockout was purportedly for the purpose, initially, of obtaining the certified agreement that they sought and then subsequently for the purpose of obtaining the AWAs of which mention is made in the application before the Commission today.

PN1179

The position is that during and following the lockout, there has been a substantial amount of litigation predominantly in the Federal Court but in some cases before this Commission. The matters that are extent before the court at the moment are set out in the letter of 31 January 2001, that is, when I say extent, they are the matters that are currently proceeding. If I can take your Honours to page 2 of the letter of the 31st of January, your Honours will see - your Honours and Commissioner and - the Commission will see that in the middle of the page, there is a reference to proceedings AMIEU v G. & K. O'Connor Pty Limited v 723 of 2000, section 178 breach of award, the award being the 1992 agreement.

PN1180

Those proceedings are before Conti J. They were last before Conti J the day before yesterday at which time the evidence in the proceedings concluded. There have been directions for the parties to exchange and file outlines - sorry, full written submissions by the 24th of February - no, 23rd, I'm sorry. 24th is a Saturday. I think initially it was the 24th and we asked his Honour to make it the Friday rather than the Saturday. In any event, by the 23rd of February and the matter is listed before Conti J on the 1st and 2nd of March for the purpose of the parties concluding whatever oral submissions they wish to make, either in reply to the other person's - or the other party's submissions or in exposition of any question that may arise from the full written submissions that have otherwise been filed.

PN1181

That matter will conclude in terms of hearing time on the 2nd of March at the latest and then assuming, as I do, not against his Honour but just by the nature of the proceedings, that his Honour will reserve his - his Honour will presumably issue a judgment as soon thereafter as is convenient and/or practicable. The matters that are before his Honour are essentially set out in the document that I last referred your Honours to, which is a series of documents that are set out in the volumes that we forwarded to your Honour.

PN1182

The Commission will see that in volume 2 of those volumes, there is set out a further amended statement of claim dated 2 November 2000, a further amended defence dated 7 December 2000, a rejoinder dated - anyway rejoinder as so called dated 22 December 2000, a further amended reply and a further amended defence dated 9 February and a cross-claim of the respondent. I don't want to read these documents to your Honour. I certainly know your Honours don't want me to read it to them but the effect and kernel of everything up to the cross-claim is an application that the employer is in breach of the award, being the 1992 agreement.

PN1183

Your Honours held in your Honours' decision of 16 January 2001 that the 1992 agreement continues to have application to the applicant, that is, O'Connors and you did so at the end of paragraph 4 of the decision of 16 January 2001. Your Honours would also be aware that the Full Court of the Federal Court of Australia at least formally for the period ending 22 November 1999 held that the 1992 agreement applied and was binding on O'Connors. That Full Court judgment is the subject of an application by my learned friend's client for special leave to appeal to the High Court which - the papers in which have been completed but which special leave application has not yet been listed or heard.

PN1184

Your Honours, I am reminded by my learned junior who is far more on top of these things than I, that your Honours' associate apparently did not have sufficient or available currently copies of the Full Court decision of 25 August 2000 and asked for those to be brought down. If I can hand those across at this stage. That is three copies of the judgment - - -

PN1185

DR JESSUP: It is behind tab 22 in our folder, if the Commission pleases.

PN1186

MR ROTHMAN: It is referred to in our list of authorises as Hamberger, I think. AMIEU v Hamberger and perhaps that may have led to some confusion but in any event, that is the Full Court decision referred to, in fact, in your Honours' earlier - the Commission's earlier decision of the 16th of January. Nevertheless, it is requested - so I hand it over. The position is that in the proceedings before Conti J, what is put to his Honour is firstly the way in which the 1992 agreement applies, the way it is intended to apply, that is intended in terms of a proper construction of a document and it's surrounding circumstances.

PN1187

The operation of the 1992 agreement, vis-a-vis, the 1996 FMIPA and the two or three 2000 FMIPAs which my learned friends rely on in these proceedings. That is the inter-relationship between the two are clearly and fundamentally before his Honour in that application. If I can take your Honours and the Commissioner to the cross-claim - - -

PN1188

SENIOR DEPUTY PRESIDENT POLITES: It is behind the blue tab, I think. Is that right, Mr Rothman?

PN1189

MR ROTHMAN: Thank you. Your Honour will see this cross-claim was filed on Wednesday - on Wednesday of this week in the proceedings before Conti J by my learned friend's clients and - or leave was granted to so file it. Your Honours will see that the cross-claim and claims - and there has been no defence filed for this yet but presumably that will be done before the 1st, 2nd of March - but the declaration that the 1992 agreement ceased to be in force on 3 June 1999, alternatively on 15 June 2000, alternatively the commencement of first pay period after 3 August 2000, or alternatively on 1 November 2000.

PN1190

Alternatively on 21 November 2000, the cross-claim was prepared by my learned friend. In any event, the relevance of the dates are 3 June '99 is when it is alleged O'Connors became a member of, again, of the MMA. 15 June 2000 was a making of a variation to the 1996 award. The 3rd of August was a further variation. The 1st of November was the operative date of the 2000 award so called which was made on the 21st of November and that is the relevance of D and E. That matter is a matter fundamentally relied upon by my learned friends in their application.

PN1191

Their application, the grounds of which are summarised in paragraph 28, are essentially that there was an attempt to reach agreement. There was offered AWAs. There was an inducement to remaining employees was brought to an end under 127. There was, it is said, an observation that it was appropriate to O'Connor to apply the industry award. The 1992 agreement - and these are all statements of fact - when one comes to the grounds, H has been taken out. The only grounds are that O'Connors are obliged to apply the terms of the industry award which is denied.

PN1192

O'Connors denied the protective effect of that in relation to the 1992 agreement merely because that award did not apply to O'Connor at the time it was made. That is not our submission. That is one of the reasons that it does not apply to them. There is a safety net award which applies to employees of O'Connor but there is another instrument made under an earlier statutory regime and overtaken and that is a matter before the Federal Court, as was I and cave-in is, I suppose, a confusion that the 1992 agreement could, and we would say must, be set aside under section 113 of the Industrial Relations Act as enforced before the commencement of the Reform Act.

PN1193

The objects of the legislation at that time - are inconsistent with the present objects and recourse to that earlier legislation would not or would not necessarily resolve the impasse. I take it by that my learned friends don't think they would win if they applied under 113. Nevertheless, the position is that the only grounds that are now relied upon for the award are grounds that are squarely before the Federal Court of Australia, that is, the inter-relationship between the 1992 award and the - sorry, the 1992 agreement and the FMIPA by whatever date.

PN1194

The other thing that is before the Federal Court in those proceedings is, of course, whether O'Connors have breached the 1992 agreement and your Honours know that that is one of the fundamental grounds upon which we rely in our application under section 111(1)(g). So that when, if one looks at as your Honour - we have just handed up - 111)(1)(g)4 - sorry, 5:

PN1195

That a party of the industrial dispute has breached an award or order of the Commissioner or a certified agreement or has contravened a direction or recommendation of the Commission to stop industrial action or has contravened a recommendation of the Commission under section 111AA ...(reads)... is hindering the settlement of the industrial dispute or another industrial dispute.

PN1196

There can be no doubt that the 1992 agreement was the settlement of an industrial dispute. Indeed, this industrial dispute upon which reliance is now made and there is no doubt that the breach of it is a hindrance of the settlement thereof, certified by the Commission in 1992. So that essentially in relation to that ground, the Commission will be asked to decide in the section 111(1)(g) proceedings as a matter of law fundamental to the application and operation of section 111(1)(g) that which is presently before the Federal Court and likely to be resolved shortly after the 2nd of March.

PN1197

If I can then take - yes, I am reminded by my learned junior that in the proceedings on the 14th of February which is, I'm told, Valentines Day - I think it has something to do with masochists - Conti J in referring to the further programming of the matter, dealt with the procedures and at page 354 said this and I quote:

PN1198

My concern is that after the 1st, we go into a long case on the following Monday and I think that in the interests of justice -

PN1199

That is a reference to the 1st of March, I might add:

PN1200

- after the 1st we go into a long case on the following Monday and I think that in the interests of justice this matter has got to be brought to an end as early as possible, not that I'm promising you a judgment with a day or two.

PN1201

But it is clear from the attitude of the Federal Court both in terms of the listing of appeals by my learned friend and indeed ours and in listing - in terms of listing of the matters generally that it has been given some significant expedition and Conti J has made it clear that he will expedite the conclusion of the 723 matters, that is the matters involving the inter-relationship between the 1992 agreement and the 2000 award. The other matter to which we have referred the Commission and that is currently extent before the court, are the proceedings that are first mentioned in 31 - in a letter of 31 January 2001.

PN1202

Those proceedings are the proceedings V833 of 2000 being proceedings - being the proceedings of - before Marshall J which have been summarised as proceedings under section 170WG, proceedings under part XA and proceedings for or relying on breach of contract. Again to remind your Honour of those proceedings. Those proceedings have now twice been before - three times been before a Full Court of the Federal Court of Australia. The first of them was in the Hamberger proceedings which we had handed up and which your Honours have otherwise the authorities.

PN1203

I don't say that pejoratively of the employment advocate, just that that is an easier way to deal with them - name of the matter. The second one was an appeal against a refusal to make interlocutory orders and the third was an appeal against the making of interlocutory orders. The current situation is this, that interlocutory appeal was - that is our appeal against the refusal to make the orders was heard by the Full Court of the Federal Court, Wilcox, Merkel and Finkelstein JJ and judgment issued and the matter remitted back to Marshall J with an injunction to deal with the matter expeditiously.

PN1204

After hearing the parties on submissions as to the effect of the Full Court judgment, his Honour then on - and all of these judgments are before the court - sorry, the Commission - his Honour then issued judgment on 12 December 2000 granting interlocutory orders in slightly different terms to that which was sought by the applicants and my learned friends then appealed those orders and a Full Court of North, Goldberg and Finkelstein JJ then stayed that part of the order of Marshall J which was in excess or different from that which had been sought by the applicant.

PN1205

Industrially what then occurred was this. There was an order of the Federal Court - there was an order of the Federal Court in which imposed at least between the period that Marshall J's order was enforced but not stayed, the wages restrained - I withdraw that, I'm sorry. It restrained the employer from paying wages and conditions less beneficial to the employees than those contained in the 1992 agreement. The word conditions was the issue that was stayed by the Full Court on the 18th of December.

PN1206

The matter came before his Honour and I think the court has been informed of this in correspondence and/or submissions from my learned friend's client but the matter then came back before Marshall J on a notice of motion by my learned friend's client which, inter alia, sought the striking out of three paragraphs of the statement of claim. It might be four but I think there was some omission from the notice of motion. But in any event, a number of - a finite number of paragraphs there were - a finite number of paragraphs in the statement of claim.

PN1207

I think my learned friend's correspondence to the Commission suggests that the whole notice of motion was sought to be struck out. That was never a notice of motion of which I'm aware. That the notice of motion sought to strike out the whole statement of claim. That was never an application before the court. I assume it was just a slip on the part of my learned friend's instructing solicitors. In any event, there was a claim for the striking out of three or four paragraphs of the statement of claim. There was an application by my learned friends to discharge the interlocutory order that had been made.

PN1208

There was an application by my clients - there were other applications but I don't go to them at the moment - but there were application by my client for the variation of the interlocutory orders. Between the time of the making of the orders as stayed, that is, 18th December 2000 and proceedings in the week of the 5th of February, the company had established a separate boning room which operated significantly differently from the main boning room. That boning room is still in place.

PN1209

Those matters are set out in the affidavit of Andrea Louise Lester which is before the Commission and was filed in V833 of 2000. If I can - it is tab number 14 to volume 1. Your Honours will see that for paragraph 5 Ms Lester sets out in detail that which she was informed. It was done on information believed - because the meetings to get instructions on her affidavits - we didn't have the earlier affidavits available, that is the affidavits of my learned friend. In any event, your Honours will see in paragraph 5:

PN1210

He worked for three and half years at Scorpio Meats which is a tabling boning room ...(reads)... but on the rail, in a proper table boning, etcetera.

PN1211

I don't read it all, your Honour, nor do I go to it other than to show your Honours that what effectively occurred in relation to the boners and slicers only was that the company separated out those boners and slicers who were the subject of the orders of the Federal Court and/or not the subject of AWAs and put them in what was formally a chiller in which they worked without a chain of a normal kind that is used. Your Honours will see - the Honours and the Commissioner will see that the - that work involved far more arduous and risky operation in terms of the actual work performed by the employees.

PN1212

What I really go to is this. The Commission knows that in a sense, meatworks are injury prone in any event, as one would expect with an operation that deals in the cutting of meat, but apart from that what occurred then was that those workers in that boning room were then worked for less hours than anyone else and worked at low tally. So that the effect of the order of the Federal Court imposing the 1992 wages or no less than the 1992 wages, was said by O'Connors, also denied by us, but said by O'Connors to allow them and/or result in the proposition that they could disadvantage the employees who were the subject of the 1992 agreement by working them less hours, providing them less work and paying them less money than other employees at the plant.

PN1213

We should make clear that that is either/already one of the particulars of part 10A unlawfulness or will shortly be. Be that as it may, those are the industrial history that was before Marshall J in the proceedings for the variation of the interlocutory order. Marshall J in the proceedings heard the matter at interlocutory level on 5th and 6th of February and again on the 12th of February, on Monday, the 12th of February. His Honour - the application for variation that was made by us was an application for variation of the orders such that the employer be required or be restrained from paying wages less than a sum set out rather than an amount by reference to the 1992 agreement.

PN1214

The amount that we set out in that notice of motion was the amount of wages payable under the 1992 agreement at high tally. There is an issue between the parties as to whether high tally is the appropriate payment for the period - is a sub-issue. Not only is there an issue about whether the agreement applies at all but there is an issue about the calculation of what rate of pay there should be and whether or not high tally is the appropriate amount. In any event, Marshall J decided on the Wednesday the 7th or whatever it was of February that he would not discharge the interlocutory order.

PN1215

He would continue it in force and that he would vary the interlocutory order to provide a set rate of pay but that the set rate of pay would not be that which the union sought but the rates of pay that are payable under the AWAs, that is, those rates were provided to his Honour during the course of the proceedings. But those rates were in most instances significant - well, in all instances, significantly higher than the rates that were payable under the FMIPA. In the case of tradespersons, almost double the rate under the FMIPA.

PN1216

They were approximately 20 or 25 per cent lower than the rates payable under the 1992 agreement at high tally. That was done in circumstances and it may be appropriate if I take your Honours to the notice of motion that was before his Honour - at least our notice of motion that was before his Honour and the notice of motion apparently has been handed to your Honours. Do your Honours have that? There is some question at the bar table as to whether that has actually been provided to your Honours so it may not be - - -

PN1217

SENIOR DEPUTY PRESIDENT POLITES: I haven't been able to locate it in the appeal books at the moment.

PN1218

MR ROTHMAN: Well, your Honour, it is sufficient for my purposes if I do this and I apologise to your Honours. The orders sought variation such to set out certain definite rates of pay and they are contained in orders 1 to 6. There was an order 7 which sought to have an order that the respondent provide work to each of the second of 31st applicants, which were the individuals, at the workstations or stations at which the applicant performed his or her work prior to the order of the court made on the 12th of December. In other words, prior to the commencement of the separate boning room.

PN1219

The position is that after some discussion before the court, that order was not made. It should be pointed out that behind tab 4 - apparently you don't have this document either. But behind - in the transcript of the discussion - I take your Honour to it now and it is sufficient for my purposes to read from it so that your Honours can get the gist of what occurred. It is not all that long:

PN1220

His Honour, Justice Marshall, asks Dr Jessup: just before you go into that, Dr Jessup, I'm sorry to interrupt ...(reads)...yes. His Honour: I'm sorry to interrupt.

PN1221

Dr Jessup then continued with the submissions he was then making. Now, I don't accuse my friend of doing something that he said he wouldn't do. I'm simply - because on the Monday after the decision in principle that was made on the 7th, my learned friend made it clear that his instructions were that they would continue the small boning room regardless. But my point simply is this, that the conduct of the applicant thus far on the material before your Honours is this. At the state of play at the moment as it subsists is this.

PN1222

The applicants have without a need for it taken the non-AWA workers - I will use that term because it is as neutral as I can get - the non-AWA workers into a small boning room, that is the boners and slicers. There are some slaughtermen all working on the - and labourers - there are some slaughtermen who are working on the slaughter chain, but have taken those boners and slicers and imposed upon them conditions more arduous than the conditions otherwise applicable and continue to do so. Ultimately that will be the subject of orders if there are orders, if we succeed in the Federal Court.

PN1223

The issue though is this, that Marshall J has now made an order that all of these workers, that is, the non-AWA workers, be paid a set rate per week which is a set rate higher than the FMIPA rate. I can - we are getting copies of the order that was issued formally this morning but the orders were made on the 12th and issued this morning. I understand one has been faxed through to the Commission. It is in the Commission's good offices but in any event that order will be before the Commission shortly.

PN1224

The point I make is that the rate of pay in those orders is the rate of pay in the AWAs. It applies now to the non-AWA people. It will continue to apply until set aside by the Federal Court. It does not depend on the applicability of the 1992 agreement for it's efficacy nor on the applicability of the FMIPA for it's efficacy. It depends upon the redressing of duress under section 170WG and the redressing on an interlocutory basis, that is, there is a serious question to be tried and there is prejudice in the meantime.

PN1225

But on an interlocutory basis, there is - the redress of 170WG proceedings and the part 10A proceedings. The third proceeding or the third matter is the matter relating to the breach of contract. I'm not sure if your Honours have had an opportunity to view all of that but - and there is a lot of documentation and I don't say that in any way critically - but one of the matters that is raised both as a particular of the factors leading to or finding of duress under section 170WG. I'm not sure that the Commission is familiar with - I apologise.

PN1226

I assume the Commission is more familiar with the Act than I am but I, from time to time, realise that 170WG may have not been before the Commission. I think the Commission now is familiar with it but the Commission will be aware section 170WG is the proceeding which proscribes duress in connection with an AWA and that the claim is that duress was imposed upon workers in connection with an AWA is, as one can expect, complicated argument about what the meaning in connection with means, is complicated argument about whether it is duress.

PN1227

There is some argument about the inter-relationship between the immunity that is granted for industrial action under 170WC and the provisions of section 170WG. That relationship was discussed by the Full Court in the appeal to the judgment relating to what I've called the first interlocutory appeal, that is, the proceedings before Wilcox, Merkel and Finkelstein JJ. In any event, my point in all of that and I'm sorry to digress, but my point in all of that is that whatever happens in the proceedings before Conti J, and I don't suggest that my learned friends can't agitate if they so desire another discharge of the interlocutory proceedings, but whatever happens before Conti J it is fair to say that the interlocutory proceedings on their face operate until the proceedings are concluded.

PN1228

Those are the proceedings that are before Marshall J and albeit tentatively fixed for four weeks commencing in the middle of May and ending - they are not continuous - and ending I think in the third week of June. So that his Honour is dealing with that claim. Now I have mentioned that that claim deals with 170WG. I mentioned that it deals with part 10A, that is, there is a discrimination to use that term very loosely but there is an alteration of employees' position, that they are prejudiced or an injury in their employment, for one of the reasons proscribed one or more of the reasons proscribed in section 298K - sorry, 298L, I think.

PN1229

But in any event, those proceedings are also on foot. I've also - and I interrupted myself - but I was also informing your Honour of the question about the contract of employment. If your Honours - your Honours and the Commissioner may be aware, there are some cases associated with the provision and the inclusion of an industrial instrument or a collective agreement, whether it is registered or otherwise or certified or otherwise in a contract of employment. Of course, there is Byrne and Frew which is - yes indeed, there is Byrne and Frew and there is Humphray Carpets and a number of other cases and McCormick and Riverview, yes - Riverwood, sorry.

PN1230

In any event, it depends ultimately on particular facts and the like. One of the claims in the proceedings before Marshall J, V833, is a claim based on contract. It is a claim in which it is said that the non-payment and the non-payment of the rates in the 1995 agreement and/or the 1992 agreement, are a breach of the contract of employment that subsists and subsisted at the time between those employees and O'Connors. That is said for two reasons. One, it is said that that breach of conduct renders the conduct unlawful and therefore provides illegitimacy in the sense required for duress.

PN1231

Secondly, there are under the accrued jurisdiction of the Federal Court, claims for remedies in contract and those claims for remedies in contract were specifically the subject of an interlocutory judgment by Marshall J to allow us to make those claims and those remedies. Your Honours may - I should tell your Honour that the - what is before the court in relation to that very briefly and I don't wish to go to the merits of it as you - but I want your Honours to understand precisely how much of an overlap there is and what exactly is being spoken of in these proceedings.

PN1232

What is before the court in those proceedings is firstly a series of induction booklets that we say, that is the applicants say, were handed by O'Connors to employees which on their face implement the tally system, rates of pay and conditions of employment and specifically refer to the 1992 agreement or the 1995 agreement, depending upon the date of the induction booklet. There is secondly a series of conduct involving the implementation and indeed that can be found in the decision of Bolton J in the 127 proceedings and the 170MH proceedings.

PN1233

There is conduct on the part of O'Connors in which in the period during 1996, they implemented the agreed upon changes after agreement between O'Connors and the union and it's members. The agreed upon changes to the 1992 agreement which were ultimately found in the 1995 agreement. In other words, they were implemented before certification of the agreement and it said that gives rise to issues about contract and the third aspect is an aspect which is referred to in the affidavit of Andrea Louise Lester of the 24th of January and to which I've taken the Commission.

PN1234

If I could take paragraph 13 of volume 1 - sorry, it is document 13 I should say of volume 1 and if I can take your Honours to paragraph 8. Paragraphs 8 says:

PN1235

Since lodging the amended statement of claim herein, the applicants have been ...(reads)... may lose my dismissal, signed, etcetera.

PN1236

The evidence of the company thus far is found at page 287 of the proceedings before Conti J of the 14th of February which I understand is document 21 in volume 2 of the documents before your Honour and Mr Allen who is described as the, I think, production manager of the company and is, I think your Honours may know, a fairly senior employee of the company and part of it's management structure, swore an affidavit in which he, inter alia, authorised that - said that he was authorised to give evidence on behalf of or swear the affidavit on behalf of the company.

PN1237

Page 287 of the transcript, at line 31, I asked this question - sorry, line 32:

PN1238

To your knowledge each of the employees who returned to work after the stoppage in 1996 completed such a form.

PN1239

Such a form, your Honour, is a form which is in the terms that are repeated in paragraph 8 and which I've read to your Honours:

PN1240

No, that is not correct. Well, can I put to you in fact they did ...(reads)... answer, yes.

PN1241

Then there is a question about the significance in terms of the election and your Honours will recall this was the subject of some debate about the FMIPA and the election to do time work and the like. Now, I should say that later in evidence in re-examination, my learned friend, at page 293, my learned friend - as a matter of completeness I should take your Honours to this - at line 10 my learned friend says:

PN1242

Do you recall being shown a document which is his Honour has marked exhibit 9 ...(reads)... I don't know if he was successful or not.

PN1243

Your Honour, I did refer earlier to a case in passing and I understand it wasn't put on the list of authorities. For the purpose of the record, I should make it clear what the case was. It was McCormick - M-c-C-o-r-m-i-c-k - v Riverwood - R-i-v-e-r-w-o-o-d - and it is a judgment of Wineberg J of the Federal Court and also on appeal of the Full Court in the same matter. It is a case involving the incorporation of another document into the contract, a document in almost - or very similar terms to the one that is the agreement of 28 October 1997.

PN1244

So that what is before the court in 833 is firstly the issue of unlawful conduct under 170WG upon which we rely, for the purposes of the section 111(1)(g) argument, that is, we say their conduct being the breach of section 170WG fits within both sub-paragraphs (iii), (iv) and (v) of section 111(1)(g) and also the conduct in breach of part 10A rendering the conduct again unlawful and again relevant for the purposes of those sub-paragraphs. Lastly, the issue of the breach of contract which again is conduct which fits within those three paragraphs of the 111(1)(g) argument but is also relevant in terms of what award, if any, would be made other than in relation to the section 111(10(g) argument.

PN1245

Your Honours and the Commissioner know that the Commission has in that sense two discretions. There is the discretion that is reposed under section 111(1)(g) to refrain from further hearing, etcetera, either in whole or in part and there is also the discretion, even if the section 111(1)(g) is not made not to make an award in the exercise of the Commission's discretion to make an award or not to make an award. In other words, there was at one stage in the history of arbitration in this country a view that there was a requirement to make an award. That no longer persists and is no longer the basis of jurisprudential authority.

PN1246

So that again there are significant proceedings before the court involving the very issues that this Commission is required to undertake for the purpose of both the section 111(1)(g) argument and the proceedings under the actual award itself. Can I also hand to your Honour an extract of the transcript of 14th December 2000, being the transcript before Conti J. Do the Commission want three or four copies?

PN1247

SENIOR DEPUTY PRESIDENT POLITES: Three is sufficient.

PN1248

MR ROTHMAN: This is an extract of page 124 of the transcript in V for Victor or Victoria 723 of 2000. At page 124, Conti J is discussing with my learned friend, Dr Jessup, one of the pleadings in V723 which pleads that there is an application before the Commission seeking an award operative from 3 June 1999 dealing with the subject matter of the Federal Court's proceedings. At page - that is - his Honour refers to it being strictly demurrable. Dr Jessup - which I think is the use of the term used differently in New South Wales than it is in Victoria I should add - but Dr Jessup says it is a bit like being in a time warp, etcetera.

PN1249

His Honour, at page 25 - perhaps I should read and I apologise:

PN1250

It is being a bit in a time warp except that one of the claims we make in that proceedings ...(reads)... but I will say nothing more.

PN1251

Then I don't read any more. Now, I don't say that either to bind Conti J in any way nor indeed to be insulting to the Commission, only that it is clear that the Federal Court, at least tentatively, takes the view that the Commission ought do nothing to interfere with the proceedings that are before it. Now, it is not only the court that takes that view - the last document, your Honour, in volume 2 of the documents relied on by the respondents is - I'm sorry, your Honour. It is not the document. It is before - the last document before tab 25. I'm not sure if your Honours have anything after tab 25.

PN1252

SENIOR DEPUTY PRESIDENT WATSON: We are not sure that we got any tab numbers, Mr Rothman.

PN1253

MR ROTHMAN: I'm sorry, your Honour.

PN1254

SENIOR DEPUTY PRESIDENT WATSON: If you give us the colour of the tab that it has got here.

PN1255

MR ROTHMAN: It is behind the red tab and before the blue tab. It is actually the last document before the last tab in the book. It is a document on the letterhead of Blake Dawson Waldron.

PN1256

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN1257

MR ROTHMAN: There is a facsimile cover sheet. It is in proceedings between G.& K. O'Connor and an Anne Jones. They are an unfair dismissal proceedings in the Commission before - obviously given the addressee, Commissioner Lewin. In any event, O'Connors in this letter say to the Commission that they received submissions. That is in the second paragraph:

PN1258

Those documents contain assertions which were and continue to be contested ...(reads)...strike out the third attempt of a statement of claim.

PN1259

I am unaware of that but my learned friends say so:

PN1260

In V833 similar decisions to those contained in paragraph 1 and 3 of the applicant's decisions are made ...(reads)... strike out application.

PN1261

Attachment 1, your Honour, was the 1997 document that I have read to your Honour, contained in paragraph 8 of Ms Lester's affidavit:

PN1262

We note that no assertion is made in the applicant's submissions that she in fact had signed attachment 1 ...(reads)... various applications in V723 and V833.

PN1263

Now, I make it clear, your Honour, we don't have to make that assertion because my learned friends made that assertion. In his defence in the Federal Court proceedings, he asserts these proceedings and relies upon them. So any orders that your Honour will make will no doubt be seeking to be given a legitimate - will be sought to give legitimacy to that which has been held on a number of occasions, is either in breach of the award, is the non-application of the 1992 agreement by which they are bound and indeed this Commission has held that and/or has been held to be a very serious case.

PN1264

In any event and it is certainly so after the finding of the Full Court that the 1992 agreement applied. O'Connors then go on to say:

PN1265

We are given very significant cause for concern by the content of the applicant's submissions ...(reads)... comity that exists between the Federal Court and the Commissioner.

PN1266

Perhaps you should read that - spell that word - c-o-m-i-t-y:

PN1267

Accordingly, the appropriate orders in respect of the applicant are either -

PN1268

- and then certain other orders are sought which effectively delay the determination by the Commission of the issues that are currently before the Federal Court so that they can be dealt with by the Federal Court and then that finding of the Federal Court applied to the particular circumstances of the proceedings that are before the Commission. I should - I am reminded that at page 3 at the top of the page, Mr Amendola for the applicants here says:

PN1269

It also prevents any possibility that the Commission may be at risk of unwittingly providing ammunition to the AMIEU ...(reads)... otherwise that is suggested by the respondent -

PN1270

That is the O'Connors:

PN1271

- would be to provide the applicant with a windfall to which she may not be entitled and which could not be recovered by our client if she was not so entitled.

PN1272

Now, apparently I suppose it is a different situation if the Commission provides ammunition to O'Connors as distinct from the AMIEU but my point is simply this. That it is not only the Federal Court that takes the view that the Commission ought not do willingly or otherwise that which would interfere with the processes that are before the court and will determine authoritatively - and I don't say that pejoratively but it will determine authoritatively the legal questions which underpin both the section 111(1)(g) argument and the proceedings before the actual making of an award.

PN1273

Lastly can I take the Commission - your Honour, I am told before I do that that the copies of the order of Marshall J have now arrived and I can hand those to the court. Lastly, your Honour, can I take - perhaps I should before I do that encapsulate that which I have put already in this way very briefly that that which your Honours are being asked to decide in these proceedings, either in the 111(1)(g) or the application under 111(1)(b), is a proceeding which overlaps more than significantly, hugely, which the proceedings and the legal issues that are being determined authoritatively by the Federal Court.

PN1274

Your Honour, it may come as a surprise to the Commission but the - it is not our submission that legal costs should be added to - and it is not our submission that we ought run four times what effectively can be run once and the effect of having proceedings here which deal with precisely the same underpinning legal issues in the 111(1)(g) application that have been dealt with properly and I say that without in any way suggesting the Commission wouldn't deal with it properly but it has been dealt with with contests of evidence, with the full gambit of the pleadings and contentions that are before the court.

PN1275

The court will be dealing with it authoritatively, that is, in a way which is legally binding on my learned friends and I - my learned friends and my clients. We don't want a situation to arise where we run the proceedings twice. We may not get any answers which would be a ludicrous situation. One can only imagine the situation where, for example, the Commission held that the 1992 agreement applied, that the O'Connors were in breach and our 111(1)(g) application was successful.

PN1276

The court then held that the 1992 agreement didn't apply, they weren't in breach and we would then be before the Commission to re-argue all of those provisions, that is - - -

PN1277

SENIOR DEPUTY PRESIDENT POLITES: It wouldn't be the first time something like that has happened, Mr Rothman.

PN1278

MR ROTHMAN: No, your Honour, but it is not something that you would encourage and likewise the other way round. If the court held that the 111(1)(g) argument was unsuccessful because the 1992 agreement didn't apply, that in a sense would be worse because it might be irremediable. The 1992 agreement didn't apply and that the 111(1)(g) application failed, inter alia, for that reason and the court held it did apply and they were in breach. The Commission then having gone on to make an award in circumstances where otherwise had it - I hesitate to use the word correctly - but had it decided that the issues in the manner that the Federal Court decided it may have come to a different conclusion.

PN1279

I'm reminded, for example, in the proceedings involving - I think it was Gordonstone - one of the big mining cases in which the MX award was made and overturned by the Full Court of the Federal Court and ultimately then overturned by the High Court during which time this Commission had gone on to make an award, there was a question that arose then as to whether that award was a valid award and whether or not it necessarily - or had to be set aside and there were fairly complicated questions of jurisdiction that then applied.

PN1280

Now, so the issue that everything is going to have been run more than once is that - one issue which of itself is normally an issue for an adjournment but there is more to it than that. That is, that in the end whether or not the 111(1)(g) is successful and whether or not the award is made, it won't have any effect at least until after the proceedings are on foot - sorry, concluded in relation to 833 and 823. There is no way in the world that the - I withdraw that. I don't mean to be loose in my expressions.

PN1281

The Commission is being asked to exercise jurisdiction under section 111(1)(b), to make an award under the Workplace Relations Act. The proceedings under the Workplace Relations Act are necessarily confined by the operation of section 89A and section 89. Section 89 sets out the current functions of the Commission as presently constituted and otherwise. It effectively says they conciliate or arbitrate for the prevention or settlement of industrial disputes. I'm sorry, I've been again too loose. Conciliate and as a last resort arbitrate. I'm showing my age.

PN1282

As a last resort arbitrate within the confines imposed by the Act and I'm paraphrasing. I'm not reading. There are significant limitations that the legislature has imposed upon the functions of the Commission. Your Honours will recall - your Honours and the Commissioner will recall that the legislature in making the 1996 Act, the Workplace Relations and Other Legislation Amendment Act introduced certain transitional provisions which included the stripping back of awards. Your Honour, the presiding judge, I understand, had one such application on before - - -

PN1283

SENIOR DEPUTY PRESIDENT POLITES: I don't think it is called stripping back.

PN1284

MR ROTHMAN: Your Honour, I am paraphrasing but it is - - -

PN1285

SENIOR DEPUTY PRESIDENT POLITES: Simplification is the acceptable expression.

PN1286

MR ROTHMAN: Yes, your Honour. In the circles in which I mix, your Honour, it is certainly called stripping back but in any event, simplification will suffice for the present purposes and I don't - I wasn't being pejorative when I said that. I was simply paraphrasing. In any event, your Honour, the position is that there are - items 49, 50 and 51 deal with current awards and how they are simplified and made more simple and conform otherwise with the strictures or restrictions on the Commission under section 89A.

PN1287

Now, if the Commission goes to the application made in these proceedings, the Commission will see that the application does a number of things. Firstly, it says it binds O'Connors and the AMIEU. Secondly, it says the award applies to the employment of all persons who are members or eligible to be members of the AMIEU at the abattoir at Pakenham. Then it binds - perhaps I shouldn't use that word, given it's technical use in the Act but then it applies the Federal Meat Industry Processing Award 1996 on it's face to the parties bound by the award.

PN1288

Now, my learned friends suggest and the Federal Court is about to decide that the 1996 award to the extent that it is still in the force already applies. So of itself and my learned friend's argument that it says nothing other than something to which I will come. Assuming, as I must, that the reference to the Federal Meat Industry Processing Award 1996 is also a reference to the 2000 so called the FMIPA 2000, because it says as varied from time to time. Then what it does is it applies the minimum rates of award to O'Connors as a named respondent.

PN1289

If you like, it is to again be perhaps used - expressions which are more loose than they ought. It is a slightly atypical but nevertheless roping in award. What is also does is that which is contained in paragraph 5, that is, it purports to ask the Commission to make an award in these terms. This award takes the place of - I don't know what that means but - takes the place of the G. & K. O'Connor Pty Limited and AMIEU Victorian Meat Processing Agreement 1992. What we call the 1992 agreement.

PN1290

Now, I want to remind your Honours very briefly of the litigious history that has been associated with the simplification provisions. Your Honours will recall the Telstra case and other cases, including O'Connors, in which the Full Court of the Federal Court and this Commission has held that agreements made, at least agreements made prior to 1993, are not awards for the purpose of items 49, 50 and 51. Not awards for the purpose of WROLA - w-r-o-l-a - and the Commission does not have jurisdiction under items 49, 50 and 51 to simplify such an award.

PN1291

The Commission also does not have jurisdiction to make an award under section 89A which deals with anything which is not an allowable matter. So the Commission is being asked in clause 5 to do something it has no jurisdiction to do. If it was as simple as this, then the whole of the Telstra case and the whole of the litigation history involving simplification of awards that exist - sorry, certified agreements that existed prior to 31 July 1996 would never have had to occur because the Commission would simply have said: yes, we're going to make an award replacing it with another award.

PN1292

SENIOR DEPUTY PRESIDENT POLITES: But we have a general jurisdiction, don't we? You mean the - - -

PN1293

MR ROTHMAN: A lot of it deals with a subject matter which is not allowable. Your Honour does not have the jurisdiction - sorry, the Commission does not have the jurisdiction even to delete a clause which is an allowable matter because 89A restricts the industrial dispute with which the Commission is dealing. So the Commission does not have the power, under the current Act, to simplify an award other than pursuant to the terms of items 49 and 50.

PN1294

SENIOR DEPUTY PRESIDENT POLITES: I'm not talking about simplifying but to make an award under section 111B the effect of which is to replace an existing award, whether or not it has been simplified.

PN1295

MR ROTHMAN: Your Honour, we are not talking about effect now. We are talking about the actual award. If your Honour made an award which was in terms of paragraphs 1, 2, 3, 4 and 6, the Act may or may not give it an effect but your Honour does not have the jurisdiction in 2001 to make an order under the Workplace Relations Act setting aside and whether it takes the place of - without saying that is a term used in the Act, that must mean setting it aside or varying it, at least. Varying it so it reads as the Federal Meat Industry Processing Award 1996.

PN1296

The Commission does not have that power in 2001. The Commission has that power under the 1992 Act. Your Honours will recall the decision in Telstra and the decision in O'Connors where your Honours say - sorry, where their Honours say: you can utilise the 1992 Act which remains unaltered, operating on these certified agreements and the Commission has the jurisdiction reposed in the Commission by section 134M and 134N and section 113 and section 111 of the 1992 Act but that is not the application that is before your Honours now.

PN1297

In fact, that application is assumed. Paragraph (k) - subparagraph (k) of paragraph 28 says the agreement could be set aside but the objects of the legislation aren't consistent with the current objects and therefore it may not resolve the impasse. So that is one aspect. We say, and we make clear, we will be saying clause 5 of this proposed award is beyond the jurisdiction of the Commission under this Act. It has to be done under the provisions of the 1992 Act. It has to be an application to set it aside in accordance with that Act and pursuant to the provisions of that Act.

PN1298

The 1992 agreement continues in force and has effect as if that 1992 Act was never repealed and that is the provisions of sub-item 2 of item 35 of the 1993 Reform Act. That is not the main part of what I'm about to put and I apologise for digressing but the point is that what your Honour is being asked to do and indeed what the Commission is being asked to do and what the Commission can only do is make a minimum rates award. The question arises jurisprudentially what is the effect of a minimum rates award.

PN1299

Well, for one we know that at least until the interlocutory orders in the Federal Court are discharged, it will not have the effect of reducing pay. We also know that it will not have the effect of legitimising a reduction in pay that is otherwise required or had otherwise been required because a minimum rates award jurisprudentially has never legitimised that. It certain does not allow any party to reduce that which is payable under a contract of employment.

PN1300

So that if, as is alleged in the proceedings in the Federal Court, pursuant to a whole range of conduct and documents, not the least of which is the 1997 memorandum signed by the employers, if the contract of employment of these workers requires them to be paid at a particular rate, the making of a minimum rates award will not, can not and should not be made or utilised for the purpose of reducing a contract of employment.

PN1301

SENIOR DEPUTY PRESIDENT POLITES: Mr Rothman, isn't that really a merit argument?

PN1302

MR ROTHMAN: No, your Honour, it is not. It is not a merit argument for this reason. What we say is - if it was a merit argument, I would be taking a lot longer and I apologise I have taken as long as I have but I have tried - the issues involved are complicated questions of law. I don't say that in terrorem. The complicated questions of law which I've tried very much to simplify and put in overview before the court - before the Commission.

PN1303

What I'm saying is that the other reason that we say the Commission would not be reluctant to adjourn the proceedings pending the outcome of the Federal Court proceedings is that the making of a minimum rates award will not have an effect, at least until after the 833 proceedings have concluded and will not an effect even then if the contract of employment is such that they are required to pay more. That is the point. I apologise for taking as long - - -

PN1304

SENIOR DEPUTY PRESIDENT POLITES: I follow that point, yes.

PN1305

MR ROTHMAN: Yes. So that what we say is we say firstly there is this overlap of issues. The Commission is being asked to deal with precisely the same issues without the depth of material that is before the court and is being asked to deal with those - precisely those same issues albeit for a different purpose but in the end those decisions of law have to be made and that is a waste of everybody's time and effort. Secondly we say even if there was some urgency about it and at this stage the urgency has been dissipated by the fact that there are interlocutory orders in the Federal Court.

PN1306

If there is some urgency about it, that urgency at best is an urgency which arises at the end of the proceedings in 833 if my learned friends lose everything. In other words, if my learned friends lose on the application of the 1992 agreement and the non-application or the application of the FMIPA and lose on the WG and lose on - well, I withdraw that. If my learned friends lose on those issues, then the Commission's order, if it made one, doing away with the 1992 agreement may have some effect.

PN1307

That would have to be done under section 113 of the 1992 Act anyway. The provisions in terms of what it is that is before the Commission is that what my learned friends seek to do, if they still seek to do it, but what my learned friends seek to do is have the Commission determine all of these legal issues for the purposes of making an award, the effect of which will not be felt at the earliest until such time as 833 is concluded and may never be felt because if, in fact, we win in 833 and 723, the procedure in the Federal Court, certainly if we win on the contract claim, then the award this Commission will make will never have an impact.

PN1308

If we win on the 833 point, it will never have an impact and the only time it will have an impact is if we lose on all of those points, win on the back pay claim and it is said at that point that the issue is one which requires the continuation of the award and my learned friends then have available to them, because they are here, the issue of the retrospectivity of the award. So there is no real urgency in it and it involves the parties in a huge amount of expense and re-litigation of issues in circumstances where it is going to be authoritatively determined by the Federal Court.

PN1309

For those reasons, your Honour, we say the matter should be adjourned until such time as at least we are close to a finalisation of the other matters. We don't say you have to wait until the judgments but at least close to a finalisation of the matters so that the parties are in a position of being able to say to the - be brought back for directions and say: look, it is likely this judgment will be issued or that judgment will be issued. We will know about 723 shortly after the beginning of March. We will know about the 1992 agreement and it's effect, where there will be declarations as to what award continues to apply.

PN1310

At least that issue will be out of the proceedings. That issue has been finalised but for submissions and in the case of 833, that is likely to be concluded in June and we would, with respect, submit that it is appropriate to await both of them but at least if these proceedings ought not proceed at this point in time.

PN1311

SENIOR DEPUTY PRESIDENT POLITES: Yes, thank you, Mr Rothman. Dr Jessup, we will hear you at 2.15.

LUNCHEON ADJOURNMENT [12.47pm]

RESUMED [2.15pm]

PN1312

SENIOR DEPUTY PRESIDENT POLITES: Yes, Dr Jessup.

PN1313

DR JESSUP: If the Commission pleases, the application which the Commission has before it at the present time is an application to adjourn the hearing of an application under section 111(1)(g) of the Act but an application under section 111(1)(b) of the Act should not go ahead. In our submission, the Commission can dispose of the present application in a very short way. The substantial ground upon which my learned friend relied is that there would be a degree of overlap between the proceedings here.

PN1314

That is to say his section 111(1)(g) proceedings and the proceedings in the Federal Court. Because of the complex and wide ranging nature of the litigious issues between the parties and because just about everything which is relevant to anything has been litigated in one way or another, of course there will be an overlap. The very material upon which we rely demonstrates the degree of overlap but in our submission, the Commission has it's own jurisdiction. It is directed by section 98 of the Act to proceed as quickly as possible or as quickly as practicable.

PN1315

If there is a point which arises both in the section 111(1)(g) case and in the cases in the court, then the Commission ought to hear that point. It might decide in the course of that to defer to what the court says about it. It might decide, it might hear what we would have to say along the lines that: well, the court may say one thing or it may say the other but nonetheless the Commission should proceed. These are matters which, on an adjournment application in our respectful submission, simply cannot be anticipated.

PN1316

In our submission, as a matter of adjournment, there is no case whatsoever being made out in what my friend has said not to proceed with his 111(1)(g) application. In that application, there may be all manner of reasons why in the public interest and for the other reasons my friend has foreshadowed, the Commission might not want to proceed further but that will be a different matter all together, if the Commission pleases.

PN1317

SENIOR DEPUTY PRESIDENT POLITES: Mr Rothman.

PN1318

MR ROTHMAN: Your Honour, well, what is listed for hearing today is the 111(1)(b) application. At least, that is how I read their notice and I believe that is the notice on the board outside as well. I may stand corrected but that is my understanding of what is, in fact, listed for hearing. Indeed, paragraph 23 of the Commission's decision of 16 January 2001 says:

PN1319

The application under section 111(1)(b) will be listed for further hearing at 11 am on 16 February.

PN1320

So that is the matter that is before the court - the Commission, sorry. The application that we make is an application for adjournment of the proceedings. It is not only the 111(1)(g) application so that - and while my friend can gloss it over by saying the application is a degree of overlap, the application is that there is more than just a degree of overlap and secondly it also - and my learned friend has not dealt with it - that any award made or at least an award made in the terms my learned friend has sought won't have the effect of doing anything with a dispute until the outcome of the Federal Court proceedings.

PN1321

My learned friend has not dealt with that but that, of course, was the second aspect of the proceedings, if the Commission pleases.

PN1322

SENIOR DEPUTY PRESIDENT POLITES: We will adjourn for a few minutes and hopefully we will be able to give the parties an indication within a few minutes of what may transpire.

SHORT ADJOURNMENT [2.20pm]

RESUMED [2.29pm]

PN1323

SENIOR DEPUTY PRESIDENT POLITES: We have given consideration to what has been put to us. It seems to us there are at least three issues that the Bench needs to consider. The first is whether we should grant any adjournment at all. The second is if we were disposed to grant any adjournment should it be until after the judgment in the proceedings before Conti J is delivered or a third position might be that we adjourn the matter until after all proceedings in the Federal Court are resolved.

PN1324

In addition to those matters, there is some difficulty with availability of members of the Bench. In all of the circumstances, we think the only course available to us today is to adjourn the proceedings. We will, however, endeavour to publish a decision on the application as quickly as practicable. The Commission will adjourn on that basis.

ADJOURNED INDEFINITELY [2.30pm]