C2001/3038, Transcript of Proceedings [2001] AIRCTrans 2513 (2 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 0142

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/3038
C2001/3044

APPLICATIONS FOR ORDERS TO
STOP OR PREVENT INDUSTRIAL
ACTION

Applications under section 127(2) of the
Act by the Australian Municipal,
Administrative, Clerical and Services
Union-West Australian Clerical and
Services Branch and Another for orders
to stop or prevent industrial action

MELBOURNE

1.17 PM, FRIDAY, 7 SEPTEMBER 2001

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, can I have appearances, please?

PN2

MR S. BIBBY: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union and with me is MR M. KANE.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bibby. Could I just ask the parties not to stand. You get too far away from the microphone and I can't see your head when you stand up, so - yes?

PN4

MR G. BLYTH: I seek leave to appear as agent for Alinta Gas Networks, and with me is MR T. NOONAN from Alinta Gas Networks.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Blythe. Mr Bibby?

PN6

MR BIBBY: Sir, my intention this morning is just simply to run through the history of this matter, give an overview of the - where we are at in terms of the negotiations; but then, in terms of the substantial matters that are before the Commission in regard to the application, deal with the specific concerns we have; and give an outline as to the grounds on which we are seeking the 127 order. Sir, if that - unless you have - or my suggestion, sir, is that the matter is - we go into conference, initially, to see if I can see - just to outline the issues between the parties and see if there is any possibility of reaching agreement around the issues.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Blythe, are you content to have the matter adjourned into conference at this stage?

PN8

MR BLYTHE: With respect, your Honour, I don't quite understand the proposition which is being put to you by Mr Bibby. This matter, as your Honour is well aware, is an application under section 127 of the Act. To the extent that the parties might, under other auspices, be involved in negotiations about an enterprise agreement then frankly, sir, we see them as not relevant to the application before the Commission this morning; and that this matter ought to proceed on the basis of the application, as filed.

PN9

That is the union is seeking a 127 order. It ought to put its case and we then respond to it. We don't see that the matter avails itself for conference for conciliation.

PN10

THE SENIOR DEPUTY PRESIDENT: Well, I still have a duty, I think, to prevent and settle industrial disputes by conciliation, if possible. But can I ask you, Mr Bibby, are you pressing your section 127 application now, today?

PN11

MR BIBBY: Sir, sir, just briefly we are coming over the head of 127(4), sub-section (4) of the Act. Sir, we would seek a conference on the basis that there is, I believe, the need for some clarification on a number of issues - or one particular issue. It may be, sir, that if clarification is received around that issue that we can adjourn the proceedings and maybe even we can withdraw this application. But it does require a number of commitments given by the company. In the circumstances I think it would be of benefit to this particular application to adjourn into conference.

PN12

If those undertakings are not forthcoming then we would seek to press for the order and we are prepared to go ahead and put submissions to that end and lead evidence before the Commission, if that is appropriate.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, well it might be in everybody's interest, Mr Blythe, to adjourn the matter in conference. And if the matter can't be dealt with expeditiously in that way, then I will bring the proceeding back on to hear the 127 application.

PN14

MR BLYTHE: Well, your Honour, with respect before you do that, I think I should put that if Mr Bibby has matters which he requires clarification, or says there are matters that he requires clarification of, then on my instructions no such enquiries have been put directly to Alinta Gas Networks for them to respond to it. And perhaps the more expeditious and useful way in which the matter might be able to proceed is for the ASU to put those matters directly to Alinta Gas. If as a result of those private discussions the parties are not able to resolve the matter, that is if the ASU is then in a position that it is not satisfied with the responses to its questions that it appears to have, it may then be appropriate for the matter to again proceed under the guidance of the Commission by way of conciliation.

PN15

But, your Honour, it just appears a bit curious to us that the union says it has matters that it requires clarification of but we have no knowledge of what those matters are.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the parties are here now, Mr Blythe. I will adjourn into conference and if the matter needs to be adjourned to allow the parties to have further discussions privately, then I can do that from the situation of the conference. I will allow the court recording service to go now, when I adjourn the matter, but I will ask them to remain on stand-by to return in the event that the ASU wants to press the application for a 127 order. We will adjourn the proceeding now.

SHORT ADJOURNMENT [1.24pm]

RESUMED [4.30pm]

C2001/3044

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by the Communications, Electrical,
Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of
Australia for an order to stop or
prevent industrial action

PN17

THE SENIOR DEPUTY PRESIDENT: Any change in appearances?

PN18

MR LOVELL: Yes.

PN19

MR M. KANE: Mr Bibby from the ASU is at another matter that he has got to address, so Michael Kane is the sole person at the bar table for the ASU.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Kane.

PN21

MR A. LOVELL: And my name is Adam Lovell, I am an industrial advocate for the CEPU.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Lovell. Mr Blythe, do you appear in the CEPU application, as well?

PN23

MR BLYTHE: Yes, with your leave, Commissioner - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR BLYTHE: - - - sorry, Senior Deputy President, I would seek leave to appear as agent for Alinta Gas Networks in the CEPU matter.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Is there any objection to Mr Blythe's leave?

PN27

MR LOVELL: Not from my part, no.

PN28

THE SENIOR DEPUTY PRESIDENT: No.

PN29

MR KANE: No, Commissioner, no.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted, Mr Blythe. Have the parties had an opportunity to discuss the applications at all?

PN31

MR KANE: In terms of the ASU application there has been some discussions and some clarification has been gained as to what we would say is the actual threats. And we would probably seek to - we would need to, based on what they are indicating their threats to be, we would actually need to vary the orders we are actually seeking and we are presently working on that. If I could go to a bit further into that matter - if you wish, or do you wish to - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Well, perhaps before you do that, Mr Kane, I ought to deal with the question of whether the two applications are going to be heard together or not.

PN33

MR LOVELL: Yes, sir. I am sorry, I did not mean to interrupt.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lovell?

PN35

MR LOVELL: I understand, from Mr O'Byrne who previously has been before you and was at the conference, that there has been no resolution of the - between the parties that the matters should be joined. And it would appear that the outcome would have to be the preliminary matter to be determined by you formally and that would be the position that the CEPU would put before you now.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Well, what do you say in support of joining?

PN37

MR LOVELL: I am sorry, I didn't hear that.

PN38

THE SENIOR DEPUTY PRESIDENT: What do you say in support of joining them, the two applications?

PN39

MR LOVELL: Yes, it is - it is clear that there are several factors applying. The first set of factors are that the applications have the same matrix of facts and it is not - this present application before you, I believe, doesn't require descending into evidence because the matters are plain to you and that you ought to be able to take judicial notice of both applications and see that they are, apart from the applicant parties, are identical. And in that respect if you are able to take judicial notice, or inform yourself that they are indeed identical, you would then have the proposition that you have same parties, same issues and, clearly, it would be very difficult for prejudice to be argued by the respondent. Those matters ought to be patently clear on the face of the application to join.

PN40

There is a second strand which would then be - we would see that you would have to address. And that strand would be a public interest strand which is that the Commission ought to protect itself from frivolous matters, that is opposition to a join which is patently in the interests of all parties. It is a proposition that you ought to make good use of your time, and the time of the Commission, and that it would be a clearly not good use of time to have matters identical in all respects separated out for what we can only say must be a form of collateral purpose because it can't be evident on the facts as they are shown to you on the applications.

PN41

We would say that you have the power to join, that is quite clear from section 111. We say that, additionally, you have that discretion to protect the good processes of this Commission and to protect the good use of your time. And, indeed, opposition to the joining is so frivolous that it ought to be a matter disposed of peremptorily by yourself. I mean, obviously the other side must have the opportunity to respond but it would be fair, it would be open to you to look at the bona fides of the party opposing joining in the event - in the event that the parties are identical, the issues are identical, and in all respects these matters ought to be joined for the convenience of yourself, the Commission, and the applicant parties and, indeed, the respondent party.

PN42

THE SENIOR DEPUTY PRESIDENT: Is that - - -

PN43

MR LOVELL: I could put - I could put it in a converse way, if I might. If these matters were already joined it would be an unlikely scenario that an application to part them, or separate them, would succeed. That is, the logic is: they are identical, they ought to have been - in the first place - here as one unit, they could not be separated if they were one unit. That again would be prejudicial, waste of time of the Commission and yourself. And we would say: exercise your powers, dismiss the - in fact, join the matters and then we would seek, at that point, further determinations from you. But we believe this is the preliminary issue to be determined first. Thank you.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lovell. Excuse me. Thank you, Mr Lovell. Mr Blythe?

PN45

MR BLYTHE: Yes, may it please the Commission, perhaps the first matter that I would respond to is that Mr Lovell indicates, in his brief address, that he sees these matters - that is the CEPU matters - as being identical to the ASU matters. He says that notwithstanding that Mr Kane has indicated, in his brief introductory remarks this afternoon, that as a result of the discussions between the parties the ASU sees the need to vary the orders, or the form of orders that it is seeking.

PN46

So it is a bit curious that the CEPU now maintains that the matters are identical when there is a clear indication before the Commission, at least from the ASUs part, that its position is now patently different from the form of the application as filed by the ASU which is the identical form that has been filed by the CEPU. Now it may be that Mr Lovell can clarify whether their position is indeed the same as the ASUs apparently amended position, or we don't yet know what that is.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, we haven't amended yet.

PN48

MR LOVELL: Can I please - - -

PN49

THE SENIOR DEPUTY PRESIDENT: There has been no amendment yet because I said that I would deal with the application to join or have the matters heard together first.

PN50

MR LOVELL: Sir, if I might briefly respond to Mr Blythe. The fact is he is addressing the wrong issue at this point. The issue is joining or not joining. The second issue is if and when they are joined, then those other matters would arise. That is a separate question, not the question presently before you.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR LOVELL: If you please.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Blythe. That is right, Mr Blythe, because I haven't dealt with the issue of amendment yet.

PN54

MR BLYTHE: Well, it may be that I was oversimplifying things, your Honour, and if that was the case then I apologise to the Commission. But it - I was seeking to deal with what I understood to be the substance of the union's application rather than simply the application itself on its face. Your Honour, if I might proceed then to the - and I take that point no further. To the extent that we objected this morning to the matters being joined, then that was in the context of this morning having been only just served, at that point of the conference, with the union's application.

PN55

And that was an entirely reasonably basis on which we opposed the matter being joined. And it is not a position which we continue to press, having had the opportunity between this morning and now. With respect, your Honour, we make no submission as to whether the matters should or should not be joined. We leave that entirely to the discretion of the Commission. If the Commission pleases.

PN56

THE SENIOR DEPUTY PRESIDENT: Very well, thank you for that, Mr Blythe. And I am grateful for that concession and I will, in fact, make an order that the matters be heard together and I will now lead on to the issue that has been raised by the ASU about an application to amend.

PN57

MR KANE: Thank you. Just to go into some of the background to give you an understanding of what has happened during the break, the - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Well, before you do that can you tell me what amendments you want to make?

PN59

MR KANE: That is - the issue is going to go to the fact that we need an adjournment to redraft the orders we are seeking. And we would actually need - require further discussions with the company to confirm in fact what their intended actions would be. The company has, in the lock-down - sorry, or the meetings it had with its workforce, put overheads up and made statements that it would terminate employees without the payment of redundancy, and that people who were not offered alternative jobs would be made redundant.

PN60

Now what they have done in the break, in the adjournment, is to clarify that in fact they didn't mean to say those words, or they did not mean to put those words in writing and, in fact, they were indicating at the time they were talking about something else. Now the agreement - the certified agreement we actually have in place, which we say their actions would go to breach of, is a voluntary redundancy agreement only. And there is an obligation on the employer to do a number of things in terms of redeployment.

PN61

And in terms of the threats - the threats go to the employer initiating the termination. During the break the employer has indicated that their actions would go to the employer deeming that the employees have resigned where there is no acceptance of offer that they make - sorry, not where they make an offer, but where another company makes an offer in terms of new employment. So we need to clarify our order because at the moment our order goes to termination at the initiation of the employer and effectively we need to amend our orders to go to other actions by the employer which is to - them to effectively deem employees to be - have to have resigned.

PN62

Now that may in fact go to a constructive dismissal, it may go to a number of actions by the employer and we need to amend, and in fact think through our orders, in light of what the company has put to us. We also need to sit down with the company and to clarify exactly what their actions - what their intended actions are, in light of the comments made at the meeting two weeks ago.

PN63

THE SENIOR DEPUTY PRESIDENT: Well, why didn't you do that before you brought this matter on?

PN64

MR KANE: Well, because on the face of the facts given to the - in terms of the overheads and what was stated beforehand to us, was that the employer was actually saying that they would terminate the employees. And in fact that position or threat has actually been clarified into meaning something else. Now what - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, but why didn't you take the matter up with Alinta Gas and raise your anxieties with them before you asked for this matter to be listed?

PN66

MR KANE: Well, we didn't have any - well, the clarification we sought before lunch did not go to that issue. In fact this only came out as a side issue during the adjournment discussions and this is why - the clarifications we sought went to other issues. But in discussing those other issues the company had then made the point - or sorry, have raised the issue that they are in fact not making that threat. Or, the words they have used, they say they didn't mean them - they wouldn't have used them again in that sense. But the threat, nonetheless is the same, and that is the employees would be without employment.

PN67

So being aware of the nature of a 127 orders, that it has to be absolutely precise, we need to amend our - the orders sought because in running the case we need to be precisely clear in terms of what our orders are. So in terms of - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Well, how much time for that?

PN69

MR KANE: We would need at least - we would need time to sit down and talk to the company, in terms to confirm what they have said to us in the adjournment and once that is clear then we would be able to proceed. So I would see that sequence - and we would also need to confer with the CEPU on the point. And I would also confer with the - with our legal advice in terms of the actual nature of what the company has actually now threatened to do as to determine exactly all the issues about the - in the order required. So we would say at least three to four days to do that.

PN70

Now the other point of clarification which the company indicated during the adjournment is that they are not seeking to make the terminations or to action - make - or undertake any action that will result in a termination next Friday. So the - in that sense the relative urgency of the matter has somewhat decreased. But, nevertheless, we would seek to pursue this matter in a reasonably quick fashion. So we would seek probably about Wednesday would be about appropriate, after we have met with the company and precisely clarified their intended action.

PN71

THE SENIOR DEPUTY PRESIDENT: All right.

PN72

MR KANE: And if I can - like - - -

PN73

THE SENIOR DEPUTY PRESIDENT: What is - sorry, did you want to say something else, Mr Kane?

PN74

MR KANE: Yes, please. It may be that in terms of clarifying the company's intended action, that if they are not willing to clarify their actions and what their threat actually means in terms of what action would arise, that we would actually seek the assistance of the Commission to resolve that matter in terms of what is actually then put to - what we are trying to get to is a threat has been made, we also need to then determine exactly what the action arising from that threat would be and that may be where the assistance of the Commission is actually required.

PN75

THE SENIOR DEPUTY PRESIDENT: Mr Kane, in the event that you proceed with your 127 application, would you be calling evidence?

PN76

MR KANE: Yes, we will.

PN77

THE SENIOR DEPUTY PRESIDENT: What - how much evidence would there be? Oral evidence and documentary evidence, or - - -

PN78

MR KANE: No, there would be documentary evidence that would be relatively straight forward. There would be - the witnesses would actually - there would be a number of witnesses from the ASU. And I - and the means of ensuring the proceedings go efficiently, we would sit down with the CEPU and ensure there was no double up in terms of - or minimise ..... in terms of the witnesses required to prove the threat. But we would - I would presume then that there would be a total - if I can speak to this point on behalf of the CEPU - I presume at this stage there would be six witnesses in total for the CEPU and the ASU.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Mr Lovell, what is your position, then?

PN80

MR LOVELL: Our position is a similar position and I would reiterate that the position did change just prior to lunch. And I would just, I suppose, say that as far as the six witnesses are concerned, they are possibly about 20 minutes plus some re-examination, so possibly half an hour each, to assist you. But finally that in the question of prejudice, the prejudice is pretty much a one-way street, in our view. That if indeed there is a deadline, that deadline has been placed there as an artificial device of some kind. We would say that that is entirely within the control of the respondent.

PN81

But the prejudice that is capable of being done to the applicant's - both applicants' members, is quite severe indeed. And that if erring is to be towards one side or another, then that erring should be towards the prejudice that would go to our members. But is there - if there is any other way that I can assist in this, sir, that is my submission.

PN82

THE SENIOR DEPUTY PRESIDENT: No, thank you, Mr Lovell. Mr Blythe?

PN83

MR BLYTHE: If you could just bear with me just for a moment, your Honour. Yes, thank you, your Honour. Your Honour, the position I think that Alinta Gas finds itself in is one of absolute surprise at the position that is now being put to the Commission by the unions this afternoon. Certainly in the course of the private meetings between the parties this morning there was an opportunity for Alinta Gas to hear from the ASU and, to some similar extent, the CEPU about what they perceive to be the issue of concern in the context of the section 127 application.

PN84

I heard Mr Kane talk about the threats, or the perceived threats in a particular document that was used as a part of a presentation by the employer to its employees on - I think it was 24 August, or thereabouts. And in the course of that discussion, what the employer - Alinta Gas - had been indicating to its employees, and indeed in our discussions with union parties this morning, was that the purpose of those discussions was quite wide ranging.

PN85

The intention of the discussions was to put before the employees a bit of a picture as to where things were at the moment in terms of further negotiations on a new agreement; to put employees into the picture as to what the business plan at Alinta Gas was at that point in time; to inform employees of some advice that Alinta Gas had received about possible outcomes that might occur. And that perhaps was the issue which, as we understood it, focussed the attention of the ASU, where on one of the overheads that was used it was indicated that if "you do not accept an offer of employment, your employment with Alinta Gas can be terminated".

PN86

And it was put to the unions that in putting that - or expressing that view to employees, Alinta Gas had received advice from its solicitors that as a matter of a duty of care, and as a proper employer, it should make sure that employees were as fully informed as they could be about the possible consequences in the event that certain things unfolded in the course of the current business plan which is to consider - and I underline or emphasise that word "consider" - the outsourcing of certain work.

PN87

So it was in that context that the overhead that was the focus of discussion came into this issue of whether or not there was the threat. And in response to that, Alinta Gas has been prepared to give the unions an undertaking, and prepared to give an undertaking before the Commission, that of course it will not make a person redundant during - or, for so long as the current certified agreement applies. And in that context, it was Alinta Gas's perhaps optimistic position this morning that by giving the undertaking to the effect that Alinta Gas will continue to observe its obligations under the certified agreement, then the concern that the parties might have had as to threats might have evaporated.

PN88

Now perhaps from what Mr Kane has indicated this afternoon it might be that some further discussion is necessary between the parties to shore up that position. Your Honour, with respect, what we say is that the union's application - or both unions' applications, as they are currently before the Commission - are of a particular character. If the unions have come to the view, and we accept that ..... to do so, that those applications are no longer relevant to the issues that may be troubling them and they want to go away and have some further discussions with Alinta Gas, we would welcome that.

PN89

And if, as a result of those discussions, the unions reach a position where they are then not content with the outcome of those discussions and perceive that there is a need to continue with an application under section 127 of the Act, then we would respectfully suggest that the unions then file a fresh application which particularises their immediate and identified concerns at that time, and that the present applications each be dismissed.

PN90

Because it is clear, on what has been put to you this afternoon, that the unions are not able to identify with any particularity, and certainly not the particularity that is ordinarily required by the Commission and, indeed, the courts for orders of this kind. And in that context there really is not a case for Alinta Gas Networks to answer. So it seems that in those circumstances, your Honour, that the appropriate course would be for the present matters to be dismissed. There is no prejudice in that to the union parties.

PN91

If as a result of the further discussions which the unions suggest they need and which, frankly, we welcome those further discussions - if following those discussions the unions see that their concerns have not been resolved, then of course they can make applications and those applications can come before the Commission reasonably quickly. I mean, this has already been demonstrated. The CEPUs application was only filed at 11 o'clock this morning and already here we are before the Commission at 2.30-odd, Perth time on the same day, hearing the matter. So it is not - - -

PN92

THE SENIOR DEPUTY PRESIDENT: That is not unusual for 127 applications to be dealt with - - -

PN93

MR BLYTHE: Indeed. And that is what I am suggesting, your Honour, is that it is the normal course that section 127 applications are able to be dealt with, and are indeed handled by the Commission, very expeditiously. So that rather than clog up the Commission's system with applications which don't appear to have any particularity about them and which aren't able to be shown to be matters of any substance that are intended to be pressed, then those matters - those present applications should be dismissed.

PN94

Hopefully the further discussions between the parties can resolve whatever remains as a residual issue. But if not, there is no prejudice to any of the parties by the unions filing fresh applications. So we would make an application, your Honour, that these matters be dismissed.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Blythe. Mr Kane, do you want to say anything in reply?

PN96

MR KANE: Yes. In reply there would be no prejudice to the company in this matter being adjourned in terms the - on the same grounds, because the matter would be going - relisted next week. The parties would get together to confirm what actions has actually been threatened. It is interesting, in terms of what Mr Blythe said in terms of what the company is now undertaking, that they would not make any person redundant as long as the CA applies.

PN97

That only addresses the - one of the five points sought in the existing order by the ASU and CEPU. There is four other matters that have not been addressed. Our seeking of an adjournment is to clarify the - what orders we would be seeking. It is not to completely throw out this set of orders and bring in a new set of orders. The nature of the 127 requires the orders to be precise. It would - it could actually get to the situation where if we did have the matter dismissed, have to make new orders, that the company refuses to talk to us, for example.

PN98

Then the orders may again need to be varied in any further proceeding and we are back where we are at the moment. The point being is this matter is before the Commission now, there is still substantive issues which we want determined. We are seeking an adjournment to clarify our - well, to clarify the employer's actions, hope to amend somewhat and to make more precise the orders we are seeking. So we would seek for the matter to be adjourned and the matter relisted for next week. And if the company does not undertake to talk to the unions that the matter be relisted for conference.

PN99

I think there is a general obligation in terms of 127 for parties to deal with the issue of precision, that we would need to be precise. And putting new applications does not necessarily lead to that precision. We need to carry on with the existing application and deal with the issues of the - of needing to be precise and moving the matter on.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lovell?

PN101

MR LOVELL: Yes, I adopt the submissions of my friend. I would just take it slightly further, that it is said that there was no prejudice - but there is, indeed, real prejudice. And I alluded to, in my submissions in relation to joining, that where there might be some form or implied collateral purpose being used that we should not have regard to that. Now in this respect I say, until this morning our applications were factual and accurate in respect of what were perceived as threats to terminate people without payment of redundancy.

PN102

You haven't gone to evidence as to - as to that, formally, so the position is that we have behaved properly and accurately until the capricious change of view of one party that then alters the application, and on that basis they say want it dismissed and we can come back with another one. If that same party capriciously changes the position then, we will stop and start another one. I believe there is a continuum in this application that it is in the best interests of the Commission, your time, that it not be dismissed on such a basis peremptorily; that in the interim it will be valuable if the parties meet, if they narrow down the precise issues where there is disagreement and ...... therein; and that is in every party's interest and no prejudice for that to occur.

PN103

And that if this matter is adjourned perhaps to Wednesday, I understand my friend is before your Commission on Tuesday - on Monday, sorry, that that would seem to be a time that would be a proper use of time. And if an amendment was made - then amendments are made to things that change as things occur. But to come back with another application, we would say we have a capricious opponent who has articulated a deadline with drastic consequences for a number of people and that in this instance benefit, if any, should be on the applicants for this adjournment. If you please.

PN104

MR BLYTHE: Your Honour, I really would seek to be able to respond to the allegations that the employer is acting capriciously in this matter. That allegation can't be allowed, with respect, to stand. It was only this morning, as your Honour would recall, that the union identified what it was, or indicated - let me withdraw that, indicated to the Commission that it had a couple of matters that it wanted to seek clarification from the employer about. And it was in the course of the union raising those matters with the employer by way of seeking clarification that the views of the employer were given and expressed in more clear terms than perhaps might have previously been understood.

PN105

But to suggest, as Mr Lovell does, that that is the employer acting capriciously, and to then imply - as he did - that ..... capriciously done this morning but now the application to seek to have this matter is in some way tainted by that capricious behaviour is one which we reject outright.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes.

PN107

MR BLYTHE: To suggest that that is capricious is almost to ignore that it might also be able to be said that the application brought by the unions were perhaps frivolous or - but perhaps not vexatious in the sense that they were not carefully thought through and understood before they were filed. Now we don't press that point. We simply say that it doesn't help with one of parties throwing allegations at the other as to whether they were behaving capriciously or indeed, in response, us to say that the applications were frivolous. What we simply say is that when the union raised its points with Alinta Gas, this morning, on which it required or sought clarification, that clarification was given.

PN108

The employer has indicated not only is it prepared to give the undertaking which I did to the effect that no employee will be forcibly made redundant for so long as the current certified agreement remains in place, that also included that the employer will continue to abide by and comply with the current certified agreement. That was expressed this morning and I thought I had covered that in my brief position put to the Commission this afternoon. If I didn't then, I apologise for leaving that out and make that now clear.

PN109

So to the extent that Mr Kane might say the undertaking doesn't address the matters raised on the face of the applications, then frankly, your Honour, it is difficult to see what is left out because the substance, as we understand it, of the application appears to be directed at the employer in some - or that the assertion, allegation of the employer announcing that it intends not to be bound by or not act in accordance with that agreement. And we make it plain that that is not the position of the employer and we, as we say, we offer that undertaking.

PN110

And we say that those undertakings, together with what has been put to you this afternoon by the union as identifying that there really isn't any clarity at all as to what it is that they seek by way of an order, then they are reasonable grounds on which Alinta Gas says the current matters ought to be dismissed. And if something else arises in the course of the next few days, week, or whatever, then it is entirely open to the unions to make fresh applications. They should do so with particularity and specificity and then the employer can respond to those. If the Commission pleases.

PN111

MR KANE: May I respond to that, Senior Deputy President?

PN112

THE SENIOR DEPUTY PRESIDENT: Well, Mr Kane - Mr Kane, I don't think it is necessary. I propose to make the following determination on the applications for section 127. It seems to me that the best interests of all parties would have been better served by the union approaching Alinta Gas, in the first instance, to seek clarification of the position that it considered warranted an application for an order under section 127. However, it seems to me that dismissing the application at this stage would do nothing other than improve the statistical data of the Commission by bringing in another application at a later stage.

PN113

And on that basis I propose to grant the CEPU and the ASU leave to amend their applications. But I will make the following directions: I direct that the parties confer on the issues of retrenchments and/or terminations of employment arising from the structural or other changes of the business of Alinta Gas. And I direct that the CEPU and the ASU, on or before 2 pm on Tuesday, 11 September 2001, file in the Commission and serve on each other party amended applications and the draft orders that they seek in these matters. And that the matter be listed for hearing at 10 am on Wednesday, 12 September - the matters, that is.

PN114

And should the parties find that there is no necessity for the hearing to proceed during the course of the day on Tuesday, then they should telephone my associate and inform the associate of the fact that the hearing is not required and that hearing date will be vacated. Now those times that I have given are Perth times, by the way.

PN115

MR LOVELL: Excuse me, sir, I am not sure - before you terminate it there is something else I want to put before you but I wasn't sure if you had completed.

PN116

THE SENIOR DEPUTY PRESIDENT: No, I haven't quite finished yet.

PN117

MR LOVELL: Sorry.

PN118

THE SENIOR DEPUTY PRESIDENT: All of the parties might be assisted by reference to the decision of the Full Bench in the Australian Workers Union v Exosteel Holdings Pty Ltd, which is print PR903628, which goes to the form of the application; and there is a decision of the Commission, as presently constituted, in CEPU v TXU, PR907326. You wanted to raise something else, Mr Lovell?

PN119

MR LOVELL: Just a clarification on that last PR number - 903726?

PN120

THE SENIOR DEPUTY PRESIDENT: Yes.

PN121

MR LOVELL: Yes - - -

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, 907326.

PN123

MR LOVELL: Yes, 907326. I just wondered whether it might assist at this stage - given there is some importance of course in the undertaking by Alinta Gas here, but I am wondering whether they would extend it through you to include two matters: one, that they do not terminate the current CA; and that - the second one - delegates be granted appropriate permission to attend such meetings. So that would make it quite clear and would protect our - the rights of our parties.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes. To terminate the current certified agreement, am I right in understanding that needs an application to the Commission?

PN125

MR BLYTHE: Yes, that is as I understand the Act, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes. Well, is there a necessity for them to give an undertaking in that regard? I mean, if they apply to the Commission it will be a question of merit as to whether or not it should be terminated.

PN127

MR LOVELL: Well, it would be a clear indication of intention, or bona fides, to us that we have got an undertaking that is meaningful in all respects.

PN128

THE SENIOR DEPUTY PRESIDENT: All right. Well, on the second one, what is the delegates that you would require to be released for meetings and what meetings would they need to attend?

PN129

MR LOVELL: Okay. If Mr O'Byrne can reply, sir?

PN130

THE SENIOR DEPUTY PRESIDENT: Yes.

PN131

MR O'BYRNE: Sir, as per the varied certified agreement at clause 17, there are provisions contained in clause 17, in particular sub-clause (6), where union delegates - union delegates will be released to confer with the company, to be released to meet with the company, and to attend industrial tribunals, the Commission, etcetera. The company have a list of the delegates, there are six delegates that we have clearly identified with the company that we seek involvement and we will need those people to be released.

PN132

We attempted to have them released today and there was a position of the company that they had notified me of at twenty to eleven this morning, that they were not prepared to release the stewards - or the union delegates. Those names of those delegates, the company do have in writing.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, I don't want the names now but at what meetings do you anticipate they will be required to attend, then?

PN134

MR O'BYRNE: Meetings between the company and the unions, in terms of the further clarification of the company's alleged position on the threats, meetings for the purposes of briefing witnesses, and any meetings that may occur between the company and the unions that may give rise to some agreement being manufactured by the parties which would therefore alleviate the needs for hearing.

PN135

THE SENIOR DEPUTY PRESIDENT: Mr Blythe, are you prepared to give an undertaking in terms of that sought by the CEPU relating to the termination of the certified agreement issue?

PN136

MR BLYTHE: No, we are not prepared to give an undertaking in those terms, your Honour. I think, as your Honour indicates, if at some point in the future Alinta Gas was to consider taking that course, then clearly if it is required to make an application, make the application and serve the application on the unions, everybody gets comprehensive and proper notice of that. That is not to say that the company is currently considering that but we just do not see that that is a matter for which an undertaking is required in the context of these present matters.

PN137

THE SENIOR DEPUTY PRESIDENT: All right. And what about the delegates? It seems to me that under that clause of the agreement there is an obligation on the company for those people to be released for appropriate meetings.

PN138

MR NOONAN: Perhaps if I could respond, your Honour, on behalf of Alinta Gas. We have no problem in the delegates attending an agreed conference or meeting between us and union officials. That would be a quite appropriate matter, and throughout this week that has been occurring. Our position this morning was, as we explained to you in here, we didn't believe at that time that the CEPU had a bona fide matter before the Commission.

PN139

Next week, as we have agreed, we have left the matters and I would expect if it does come to a hearing next Wednesday the delegates would be made available to be here as they would in any other instance.

PN140

THE SENIOR DEPUTY PRESIDENT: What about for the purpose of proofing for - as witnesses, or preparation for the hearing itself?

PN141

MR NOONAN: We take that on application on - depends on the time demands. We have had these guys out of the operation for a considerable amount of time so we do have the one caveat, that subject to operational demands, but if the request is reasonable I am confident we can find a way through that.

PN142

THE SENIOR DEPUTY PRESIDENT: Yes. Look, what I will do, Mr Lovell, in response to that request of yours, I will add a further direction that there be liberty to any party to apply. So that if there is any difficulty the party, or relevant parties, can contact my associate and a hearing can be organised by video if that is necessary.

PN143

MR LOVELL: Yes, sir, that is quite appropriate.

PN144

THE SENIOR DEPUTY PRESIDENT: All right. Anything else, gentlemen?

PN145

MR LOVELL: Not on my part.

PN146

THE SENIOR DEPUTY PRESIDENT: Very well, this matter is now adjourned until 10 am on Wednesday, 12 September.

ADJOURNED UNTIL WEDNESDAY, 12 SEPTEMBER 2001

[5.18pm]