C2002/4513, Transcript of Proceedings [2002] AIRCTrans 4632 (18 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2002/4513

THE COAL MINING INDUSTRY
(PERMANENT MINES RESCUE)
NEW SOUTH WALES AWARD 2001

Application under section 113 of the Act
by NSW Mines Rescue Pty Ltd to vary the
above award re clause 4 - definitions

SYDNEY

9.20 AM, WEDNESDAY, 6 NOVEMBER 2002

Continued from 24.9.02

Decision reserved

PN97

THE COMMISSIONER: Are there any changes to appearances?

PN98

MR K. ENDACOTT: Yes, there are, Commissioner. I now appear for the Construction, Forestry, Mining and Energy Union, if the Commission pleases.

PN99

MS C. BOLGER: Commissioner, I appear for the Association of Professional Engineers, Scientists and Managers, Australia.

PN100

MS C. HOLMES: Commissioner, I appear for AMMA without MR F. BILLING on this occasion.

PN101

THE COMMISSIONER: Thank you. As I understand it from the correspondence that has been sent to the Commission, the parties have agreed that the award should be varied by the inclusion of the subclause and that the only thing that remains at issue between the parties is the operative date of any order that the Commission might make. Could I have it confirmed that that is the current position?

PN102

MR ENDACOTT: That is the current position in that we agreed to an order being made prospectively and the company wishes it retrospectively which I think is the position between the parties.

PN103

THE COMMISSIONER: Thank you. No one differs from that?

PN104

MS HOLMES: I also understand that the union has not dropped their objection to the operation of 170N, Commissioner, that is that you have no power to vary the award during the operation of the bargaining period. We are prepared to meet that objection today but you might hear from Mr Endacott as to whether his position has changed.

PN105

THE COMMISSIONER: Mr Endacott.

PN106

MR ENDACOTT: Our position is this, if we consent to the variation, if there is a consent between the parties to the variation of the agreement prospectively then the Commission is acting in the power of conciliation and therefore there is no restriction under section 170N, but should the Commission make an order dating back some seven years that is not consented to then the Commission would actually have to have arbitrated and heard the circumstances and as a result that is an act of arbitration. That is the difference between the parties. We have set that out as our objection, that the Commission is restricted by section 170N if we don't agree.

PN107

We have proposed a course of action to get around that and that is to cover any concern the company may have about someone revisiting the interim period we would give them a letter saying that as the respondent to the award we understood that the stand-by day off would operate as if that definition was included through that period, and I think the position certainly from the CFMEU, Commissioner, is that the company says they need a retrospective variation because of some entitlement that the employee may press during the interim period and therefore if the variation is made retrospectively the Commission will be altering the terms and conditions of employment and will be arbitrating them.

PN108

THE COMMISSIONER: That is on the basis that the Commission does not conclude that all that's being done is rectifying an administrative error, two quite separate things, aren't they? Creating new rights is one thing, rectifying an administrative error is something totally different, surely.

PN109

MR ENDACOTT: Well, it's rectifying an uncertainty or - - -

PN110

THE COMMISSIONER: No, I never said uncertainty.

PN111

MR ENDACOTT: Or rectifying an error.

PN112

THE COMMISSIONER: It's an error, it's an administrative error, commonly referred to I think by the Luton fraternity as the slips rule, that all that's happened is that in the process of consolidating the award the Coal Industry Tribunal made an administrative error and there was never any decision by the Tribunal to remove the subclause, arguably, and therefore the error should be corrected. The question is whether that is arbitration.

PN113

MR ENDACOTT: Well, there is, and I think the point we go to is that the company is insisting on it being retrospective because there is some entitlement that the employees could receive during an interim period. Our view is that agreement has been reached that there is a variation prospectively, there is no need to go back seven years, because there is no entitlement that has fallen through - - -

PN114

THE COMMISSIONER: As I understand it, on the part of the organisation and its members, if the two are separable, you are prepared to give an undertaking that nobody will initiate an action against the employer for any alleged arrears in wages during the seven-year period when the subclause was omitted.

PN115

MR ENDACOTT: We can give that in respect to the organisation. We can't do that in respect to another individual, but we can put forward the position that it was the understanding of the union and the company that the clause operated as if that definition was included. I mean there would be no realistic possibility of anyone pursuing some form of claim under the course we propose, because it has always been the position of the union after the claim was first raised that we wouldn't hold the company to an error. Even if we could use some technical legal point that might be able to hold them to an error, we wouldn't do it because we wouldn't force any error.

PN116

THE COMMISSIONER: Well, I guess the question I have for you then is if that's your position why do you oppose the retrospective order?

PN117

MR ENDACOTT: Because during discussions it was always our position that it would be a prospective variation. It was agreed that it was a prospective variation and the company wished to revisit that and we said, well, we will stand by the commitment we always gave, we are not inclined, after that commitment was made and it was agreed, to then walk away from it, that is to say you're insisting on a retrospective because we might come back and revisit you, well, that wasn't the position. That's why we proposed a course of action that would give effect to the agreed position and covering any concern the employer may have had.

PN118

THE COMMISSIONER: Very well, thank you. Ms Bolger, do you have anything to add?

PN119

MS BOLGER: No, I don't, Commissioner.

PN120

THE COMMISSIONER: Let me put a proposition to you all but I think at your feet mostly, Ms Holmes, if the Commission were to write a decision and reach a conclusion that what happened here is an administrative error and that the subclause was inadvertently in my view left out by the consolidation process undertaken by the tribunal and that I am going to put the subclause back, I am going to put it back with a prospective order, but that leave is reserved to the employer in the event that someone should initiate an action against the employer to revisit the operative date of the order.

PN121

MS HOLMES: That would be not the preferable outcome but certainly an outcome.

PN122

THE COMMISSIONER: I understand it is not your preferable outcome.

PN123

MS HOLMES: We do say that the union is unable to give an undertaking that it will not press a claim on behalf of its members, that an individual whether a member of the union or not, without a retrospective variation that enables us - - -

PN124

THE COMMISSIONER: Nevertheless, the employer would have in defending such an action a finding by this Commission that what occurred was an administrative error and further that on the undertaking that has been given by the union a prospective date of operation of the order would be made but in the event that any individual wanted to act contrary to that then you could make an urgent application for a retrospective order or a variation to the order by having an early date of operation. I would then sit urgently to hear that and we would deal with it.

PN125

MS HOLMES: We would still argue, Commissioner, that these are exceptional circumstances which warrant a retrospective - or warrant a correction order, if you like, to be ordered by you which I don't believe requires use of your arbitration power and therefore we get around the section 170N issue. The other option, I would need instructions on that as to whether we would consent to that option or whether we are still pressing for retrospectivity which we say neatly deals with the issue and removes all entitlements which on the face of the award still occur.

PN126

I am surprised, Commissioner, as you have identified, that the union is prepared to give an undertaking, that it is not prepared to consent to retrospectivity here and now. I am not sure that the union relies really on the fact that it cannot do that because of the operation of 170N or whether it is unprepared to do that. I disagree with the comments of Mr Endacott that the company did reach agreement on prospective operation during discussions. Those are not my instructions. I am not sure that the issue from the members of the company, the idea of prospective versus retrospective, was clearly understood by my client and by the industrial officers of the CFMEU and that the matter was ever addressed and therefore whether it was ever agreed to.

PN127

THE COMMISSIONER: Well, if we cannot get an agreement on some arrangement then we will have to hear what everybody's got to say and I will go away and make a decision about it, so let's do that. I think we need to hear from you first, Ms Holmes, and I think all we need to debate is the operative date.

PN128

MR ENDACOTT: The only thing is, Commissioner, I don't know whether the company has conceded that stand-by day off was an issue in the negotiations of the certified agreement. Now, if that is conceded that it was an issue then we would just tender a couple of cases and just make a general proposition, I think the principle is well known to the Commission, it would only be a few minutes, but if the company doesn't concede that it was an issue then certainly evidence is going to have to be brought as to whether or not it was an issue.

PN129

THE COMMISSIONER: Well, I am not turning this into some giant hoo-ha. It is a simple matter, the parties have agreed on what should happen into the future, all we are talking about is what should happen in the past, for reasons best known to the parties. Let's deal with that. I understand your point, Mr Endacott, but really what we are talking about here is, as I understand it there are no actions, the union wouldn't support any actions for some arrears in wages using this error and yet for some unknown reason the operative date of this order is some big deal. Unless someone can make it very clear to me why that is so, I want to get this over with.

PN130

MS BOLGER: Commissioner, if I may, I have another matter which commences in about 15 minutes or so in front of another Commissioner. May I excuse myself from this matter and perhaps be represented from the CFMEU from here on in.

PN131

THE COMMISSIONER: Certainly, Ms Bolger.

PN132

MS HOLMES: Commissioner, if I can clarify Mr Endacott's point, I gather he is saying that we cannot deal with the issue of retrospectivity in the award without first dealing with the operation or not of section 170N - - -

PN133

THE COMMISSIONER: What Mr Endacott is saying is he wants you to concede or acknowledge that this issue or the payment of what specifically, stand-by allowance?

PN134

MR ENDACOTT: Well, it was the entire issue of stand-by, stand-by day off, that was in issue.

PN135

THE COMMISSIONER: That was in issue during the bargaining.

PN136

MS HOLMES: We do concede that the issue of the future operation of the stand-by arrangements is a matter that is being dealt with during the certified agreement discussions and we do concede that there is a bargaining period in place but we say that the matters are very different, a correction of an error by the Commission is not the same thing as trading on a matter, an issue between the parties.

PN137

If I may, Commissioner, I have a decision of the Full Bench in Jenny Craig Victoria Award 2001, print 917945, if we could hand you a copy. In that decision the Full Bench puts a limitation on the operation of section 170N and says at paragraph 35:

PN138

Unless the section 113 application could be properly characterised as removing an uncertainty or ambiguity within clause 14 ...(reads)... it would not be amenable to determination by arbitration as a result of the operation of 170N.

PN139

In paragraph 40:

PN140

An application to vary the award to remove an ambiguity or uncertainty is of a different character from the matter contained in the bargaining notice.

PN141

We would say here that the Full Bench determined that Commissioner Lewin was incorrect in determining that per se he was barred by section 170N from arbitration on that question. Had the Commission found an ambiguity or uncertainty, but it didn't in this case, then it would have been able to vary the award in question, it wasn't per se prevented by 170N, so there are some limitations or qualifications placed on this section of the award.

PN142

We submit that the matters contained in the bargaining notice which we do concede concern the future operations of stand-by are a different matter to what body is correcting an error of the Commission to remove ambiguity or uncertainty. Basically the parties cannot clarify the term and effect of an underpinning award provision through a new clause in a certified agreement and that's all we are doing today, clarifying the existing position rather than determining future operation, and the matters are clearly distinct, so we would say it is not a matter of issue between the parties.

PN143

I also direct the Commission generally to section 110 of the Act where the Commission shall act according to equity and conscience and the substantial merits of the case without regard to technicalities and legal forms. That's section 110 to (c), Commissioner. In the alternative, I believe that the union in its submissions, certainly Ms Gray raised this on the last occasion, the union suggested that there is no ambiguity on the face of the award itself and that the stand-by clause is clear without the definition. Even if the Commission finds that there is no ambiguity on the face of the clause itself we say that the Commission still has power to correct an error via the slip rule.

PN144

Clearly the Jenny Craig that I have referred to, Commissioner, it deals with an ambiguity or an uncertainty but more generally it puts a qualification on section 170N and we say again that correcting an error is in the same vein as removing an ambiguity or an uncertainty and that it is a different matter, can be characterised differently from a matter at issue between the parties in certified agreement discussions during the bargaining period.

PN145

We could have applied for a correction order, Commissioner, I believe, rather than the use of the Commission's arbitration powers under section 113 of the Act. However, in discussions during the simplification process off the record before Senior Deputy President Marsh we were told that given the likely opposition from the union in this matter, we should file an application under section 113. I believe that the Commission could rectify this error on its own motion more generally under section 111(f) of the Act, Commissioner.

PN146

I would like to hand up a decision of Douglas Painters Pty Limited and Others, print No S4759 of Commissioner Merriman in April 2000 where the Commission clearly adopted what is known and what you have already referred to today, Commissioner, as the slip rule. In paragraph 10 the Commissioner cites a decision of the Supreme Court of the ACT and looks t the slip rule, saying at the top of page 4 of this document:

PN147

Also, the court has an inherent jurisdiction to amend any judgment which does not correctly state what the court actually decided and intended.

PN148

It is suggesting there that the Commission's arbitration powers would not be used if it is merely correcting an error, as it can do of its own motion. In paragraph 12 the Commission also deals with how the Administrative Appeals Tribunal has adopted the slip rule and quotes a decision in Koolivas v Port Phillip City Council saying:

PN149

It can scarcely be in the interests of justice to permit the sort of material errors referred to in the section or accidental slips or omissions to stand uncorrected.

PN150

The Commission there relies on section 110(1) as well as section 110(2) to state that the Commission shall act in accordance with equity, good conscience and so on. We say, therefore, that 170N, whether you find errors and ambiguity on certainty or whether you do not, that merely because on its face is clear but is wrong due to an error of the CIT that you have power today to vary the award. I am prepared to address now on exceptional circumstances but perhaps Mr Endacott would like to put his view as to whether 170N does apply, Commissioner.

PN151

THE COMMISSIONER: It's probably preferable if - Mr Endacott, do you have any preferred - - - ?

PN152

MR ENDACOTT: I will wait till my friend finishes her submissions and then respond in totality, Commissioner.

PN153

THE COMMISSIONER: Perhaps if you just proceed then, Ms Holmes.

PN154

MS HOLMES: We would like to hand up a decision which I think might be helpful, this a decision of Commissioner Deegan in April of this year in relation to the Transport Workers ACT Award 1982 which clearly shows that a correction order can be made effective from the date of the incorrect variation without consent between the parties. As I have stated before, Senior Deputy President Marsh suggested off the record that the proper course would be a 113 application, due to the fact that there was lack of consent, but I believe that the Commission does have power to award a correction order, not using its arbitral powers, without consent between the parties.

PN155

In conclusion on the operation of 170N, I believe you correctly acknowledged on the last occasion, Commissioner, that if 170N per se prevented an error being corrected then we would have the absurd situation whereby - and this was certainly raised by Ms Gray on the last occasion, whether or not it has been considered by Mr Endacott today - you cannot vary the award during the bargaining period even if the parties consent. Clearly that would not be in the interests of justice at all.

PN156

We say that even if you do find that 170N prevents you, we were quite prepared to wait until after the bargaining period and that was the reason for the request for an adjournment today. While we put arguments to contradict the operation of 170N today, we were prepared to wait until after the conclusion of the bargaining period. For the Commission's information, the parties are nearly in agreement as to the terms of an agreement.

PN157

It is expected that the agreement will be voted on, I am instructed, in the first week of December and an application for certification of agreement is likely to be made in the middle of December, so that subject to the Commission's diary and so on an agreement is likely to be certified after Christmas, early January, and the parties could come back and argue retrospectivity versus prospectivity on that occasion, but we believe you do have power to make a retrospective order.

PN158

On the matter of exceptional circumstances, we come to 146(2) of the Act, that the Commission has to be satisfied that there are exceptional circumstances and as we have pointed out, we believe that in the interests of justice the order should be from the first date that the Commission can correct the order, from 1 July 1995 when the jurisdiction of the former Coal Industry Tribunal came under the powers of the Commission. As we have noted, the error occurred on 27 June but as we established on the last occasion, the Commission only has power to correct an error from 1 July and that is what we are asking for.

PN159

The union has pointed out in its letter of 8 October to the Commission where it doesn't concede that an error has been made, it said that it is inexplicable. Clearly that is a concession if you like that these are exceptional circumstances. It is very difficult to understand how a variation could be made without a decision order and without an application by the parties but that is what happened as we, I believe, have agreed today. The CIT on that date varied a number of awards or consolidated if you like but it was called a variation, consolidated a number of awards, all of the coal awards, some ten awards, prior to its jurisdiction being handed over to the Commission. That is what happened and clearly these are exceptional circumstances.

PN160

It is clear, however, and it is an established principle of the Commission that the presumption is against the issuing of a retrospective order, we do concede that only in unusual and exceptional circumstances will that be done, but it is clear I think that where they exist they have been in accordance with the requirements of justice and equity and that is what we say, Commissioner, needs to be done, retrospectivity needs to be awarded today in order to meet the requirements of justice and equity.

PN161

I have copies of a number of decisions that might be helpful to the Commission and I will hand them up all at once, Commissioner, where exceptional circumstances have been found. The first decision is an old decision of Deputy President Riordan of 22 December 1989 in relation to the F.J. Walker, Queensland, Meal Works Industrial Agreement 1976. I apologise that the Osiris copy does not have paragraph numbers, but on page 4 of 10, the middle of the page:

PN162

It is well established that it is only in exceptional and unusual circumstances that an order will be made with retrospective effect but where such circumstances have existed retrospective adjustments have been ordered in accordance with the requirements of justice and equity.

PN163

Then the Commission cites a number of principles, cites the Ship Painters and Dockers Award case, and the decision contained a number of principles. About six sentences down the page:

PN164

The court does not make awards or variation retrospective unless it is necessary to do so in the interests of justice and fair play.

PN165

That has been adopted by an earlier decision in the Amalgamated Society of Engineers v Adelaide Steamship Company Limited and Others in 1923. Further down the page:

PN166

Retrospectivity is granted where a very special reason exists for doing so.

PN167

The other decisions that I have handed up, Commissioner, are instances where exceptional circumstances have been awarded. The decision in the Food Preservers Interim Award 1986 of the Full Bench in January 2001, that is print 900772, again I apologise that it doesn't have paragraph numbers but on page 9, the last paragraph:

PN168

Given that we consider that the original intent of the award provision is clear and reflects a common understanding of the parties at the time, we think there are particular and exceptional circumstances in the present matter which would justify a retrospectivity. We consider that an error is in the same vein or correction of an error is in the same vein as this, that there are particular and exceptional circumstances which would justify retrospectivity.

PN169

The last decision that I handed up, similarly the Commission found exceptional circumstances, that is re Mitsubishi Motors Australia Limited P & A Warehouse New South Wales Award 1998, that is print T1300 on page 21, the first paragraph:

PN170

We are satisfied that the circumstances of the case are sufficiently rare and singular to justify a conclusion that they are exceptional for the purposes of section 146.

PN171

I should also direct you to the bottom of page 11 of 23 where one of the submissions from the applicant in that matter was that failure to grant the application, and I am reading the second last paragraph, would expose each of the employees to substantial costs liability for claims for payment or award breach in circumstances where such claims could not reasonably have been anticipated at the time or of the time that the potential liability was concerned.

PN172

It is another common principle, Commissioner, that other than in the interests of justice and fair play which is a common reason for the Commission granting retrospectivity or finding exceptional circumstances or if there is a case of genuine oversight by the Tribunal, and that is a decision of Commission Watson in re Engine Drivers and Firemen's General Award 1969 AILR at 101, so this clearly is an instance of genuine oversight by the Tribunal.

PN173

It is clear, Commissioner, as we have pointed out, that the union has agreed not to pursue an underpayment claim. We have received a letter of demand but we have had instructions and agreement between the parties that the union has decided not to push that underpayment claim and is prepared to give an undertaking that it will not allow its members to the extent that it has power to do so, to make a future claim.

PN174

Now, whether or not it has been conceded that it is an error, and I think it has, even if it hasn't been formally conceded, and that the union has said they do not wish to benefit from an error, I would suggest that there is still a risk to the company if retrospectivity is not granted today. There is nothing to stop the union claim when there is a change of officers in the union. There is also nothing to stop an individual, whether or not a union member, from bringing a claim and nothing to stop a court of competent jurisdiction from looking at an award on its face and saying that rights existed prior to November 2002, irrespective of what has occurred before the Commission, from granting a payment.

PN175

We would prefer not to have to go through hoops to prevent or to stop that from happening when we believe there are powers of the Commission today to ensure that that does not happen by awarding retrospectivity. I would say, even if the potential for an under payment claim is not enough to convince you today, Commissioner, or is not sufficient for you to grant retrospectivity, we say that we can't get away from the fact that there is an error of the Commission which should be corrected and should be corrected in the interests of justice and fair play and with regard to equity and good conscience and should be rectified within the Commission's powers to the full extent possible.

PN176

We would say that rather than rely upon the technicalities and the legal forms that the CFMEU seems to be throwing up to avoid consenting to a retrospective operation, that the Commission today can award a retrospective award or a variation. Commissioner, clearly these are exceptional circumstances. If an error of the CIT is not exceptional circumstances, I'm not sure what is. I believe it more than meets the requirement of unusual law or rare circumstances, Commissioner.

PN177

As you quite rightly pointed out, the union other than saying it does not have to consent and it does not believe they've met the agreement between the parties, it has not put any reason why the matter could not more easily be dealt with by awarding or making the date of the variation from 1 July which we say is the obvious course and the one that's preferable to us and certainly open to you to make, I believe that.

PN178

THE COMMISSIONER: Thank you, Ms Holmes. Mr Endacott?

PN179

MR ENDACOTT: Commissioner, my response will be very brief. We set out the grounds and we did an outline of submissions and we forwarded that to the Commission in accordance with directions on 8 October 2002. Our objection really relates only to one point and that is the point that the Commission is unable to arbitrate as a result of section 170N. The reason why we submit that is, the argument is a bit circular.

PN180

Action under section 113 if not consented to is arbitration generally. I understand that the Commission has powers to rectify an uncertainty or an ambiguity and that may not be arbitration but in this case, the company is not simply asking the Commission to rectify an uncertainty or ambiguity. What it is saying is that on 1 July and I'll use that date because that's the date that the Commission took over the powers of the Coal Industry Tribunal, there was an award that because of an error of the CIT gave employees entitlements that they are able to pursue.

PN181

They're saying that's why this Commission needs to make the order effective of that date and they've relied on dates that support it because employees have a right and they don't want that right to revisit them. Now, the Commission may conclude that based on the submissions, the employees didn't have a right, that the award always operated as if a stand-by day off was included. Then they say, in fact, they're not arbitrating, they're just rectifying an uncertainty.

PN182

Certainly the Commission could conclude that but that's not the submission of the employer and it's not what the employer is impressing upon us. The employer is saying there were rights created, the Commission must make a back dated order to protect the company from employees ever pursuing those rights. The problem it is, if that argument is accepted by this Commission, then the company is asking the Commission to arbitrate that 170N excludes because it is actually asking the Commission to vary conditions of employment, to determine them which is an act of arbitration and we say they can't have it both ways.

PN183

They can't say, we want the Commission to change terms and conditions of employment by arbitration during a bargaining period over a matter in issue and then say well, there's an uncertainty. We say the employer can't run that argument which it is running and then say the Commission can make the order they sought. That's simply the nub of our argument with respect to this matter.

PN184

I understand that, well, certainly from the union's perspective, whether the Commission makes the order that we seek, that is the one that we said we will consent to, the prospective one, or its retrospective, I mean materially, I don't think it makes any difference in that we've conceded that we won't pursue the claim in the interim anyway and the claim is dead but it does materially make a difference because the Commission is excluded by the legislators including section 170N.

PN185

We make no more submission than that. That is our submission. If the Commission pleases.

PN186

THE COMMISSIONER: Thank you, Mr Endacott. Ms Holmes?

PN187

MS HOLMES: As I've said before, Commissioner, we run on two courses. One, if there is found to be an ambiguity or an uncertainty plea, the decision of the Jenny Craig case allows an uncertainty or an ambiguity to be corrected during the bargaining period and that's clear from that decision of the Full Bench.

PN188

In the alternative, if as Mr Endacott has suggested that we are saying that the employees have rights and there is no ambiguity or uncertainty and it is clear on the face of the award, then correction of an error is not use of the Commission's arbitration powers as the instance clearly falls under the slip rule. I've cited decisions where the court on its own motion or the Commission on its own motion has an obligation to correct an error because it's not in the interests of justice to permit errors to stand uncorrected.

PN189

I would say this is not use of the Commission's arbitration powers to correct an error. It's in the interests of justice and need not. I would also say that it need not be on motion or summons or application from a party that under the slip rule which it's commonly known in the Supreme Court that as soon as the Commission becomes aware or the court becomes aware of an error or a clerical mistake in a judgment, a slip of a definition out of the award during the consolidation process that it can be corrected at any time.

PN190

It is nothing akin to arbitration and that's really what the essence is. It's an error. We're not asking for insertion of a clause which would clarify the previous intention of the parties. We're asking for an administrative error to be corrected which is, I would submit, not arbitration. So whether we call it an error and the operation of the clause is clear or whether it's an ambiguity or an uncertainty, 170N does not prevent the Commission from dealing with the matter. The union today by not saying anything, has not suggested that exceptional circumstances don't exist. They have not opposed that. I would again press for retrospectivity today to deal finally with the matter. Thank you, Commissioner.

PN191

THE COMMISSIONER: Thank you, Ms Holmes. I will reserve my decision in this matter. I can indicate to the parties that they should expect the decision to be published in writing within the next week. I adjourn the Commission.

ADJOURNED INDEFINITELY [10.11am]