C2002/5487, Transcript of Proceedings [2002] AIRCTrans 5201 (23 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C2002/5487

RE ACTION IN TORT

Applicant by Universal Nominees trading as Universal Spring and AMWU

SYDNEY

2.39 PM, TUESDAY, 10 DECEMBER 2002

PN1

HIS HONOUR: This is matter C 5487 of 202, it is an application lodged on 9 December at 2.55pm Adelaide time for a certificate under section 166A of the Act. It seeks that the certificate be issued in relation to a notice by Universal Nominees Proprietary Limited trading as Universal Spring of its intention to bring an action in tort against the AMWU and the following named individuals, Alan Sibbons, Dieter Rebmann, Stephen Edmonds, Harold Bandick, Heath Evans and Sven Stalp.

PN2

The matter has been listed effectively for conciliation but also for hearing of whether or not the certificates would issue on short notice. A copy of the listing was sent to the CEO of Universal Nominees trading as Universal Spring to EMA Legal, to the AMWU and federal secretary of the AMWU Mr Alan Sibbons yesterday at 4.58pm. I think that would be Sydney time.

PN3

With that introduction could I have appearances, please?

PN4

MR R.MANUEL: May it please the Commission, I seek leave to appear as counsel for Universal Nominees. I have with me,

PN5

MR A. MARKIEWICZ of the Engineering Employees Association of South Australia and MR G.SPILLER of the company.

PN6

MR P. MALONEY: If it please the Commission, I seek leave to appear as counsel for the AMWU and others as named in the notice. I am instructed by MS L.CARBONE and with us are MR A. SIBBONS and

PN7

MR S.EDMONDS. Mr Sibbons is an AMWU organiser. Mr Edmonds, is a shop steward employee of the applicant in this matter.

PN8

HIS HONOUR: I take it there is no objection to leave to appear being granted to Mr Maloney and Mr Manuel?

PN9

MR MANUEL: No, your Honour.

PN10

MR MALONEY: No, there is no objection.

PN11

HIS HONOUR: Yes, go ahead.

PN12

MR MANUEL: Your Honour, I wonder if in the first I might deal with attempting to issue and I think it should be fairly be raised before the Commission, rule 29 is not necessarily particular clear but it is the rule in respect of service for making applications under section 166A. I understand that there have been notices of service filed in respect of all persons and it would indicate that all of them were served prior to filing 166A with the exception of a Mr Heath Evans who I understand was served last evening so he would have actually been served 4 or 5 hours after the application was filed in the Commission.

PN13

HIS HONOUR: There are on file, Mr Manuel, statements of service in relation to the front desk of the AMWU at 9 December 1.40pm to Alan Sibbons at first floor, 229 Greenhill Road, Dulwich, to Dieter Redmann at Universal Springs at 44-48 Regency Road, Kilkenny, Stephen Edmonds at 83 Roberts Street, West Croydon, to Harold Bandick at Universal Springs at 44-88 Regency Road. I didn't realise - I think Mr Bandick, is he one of the respondents? And then Stalp at the same address of a written notice of intention to bring action in tort. Then in addition there was forwarded by facsimile this morning a similar indication of service of a notice of intention to bring action in tort upon Heath Evans. I think that covers all but in any event as I understand it Mr Maloney appears for those named individuals.

PN14

I do draw your attention, however, to the fact that what was served was notice of intention to bring action in tort which notice would be uninformative as to when or where this proceeding had been listed but any difficulty in that respect appears to have been overcome by the fact that the named respondents appear through counsel.

PN15

MR MANUEL: Thank you your Honour, the point is well made if I may so about the identification of the - where the hearing was made I hadn't thought about it to be quite honest but as you say. Perhaps if I could, so far as is necessary, seek relief from the rules, pursuant to rule 6 because strictly I think rule 29 requires service on all the four filing of the application.

PN16

HIS HONOUR: Yes, very well. I will treat it as leave as granted in that respect because they do appear.

PN17

MR MANUEL: Your Honour, I am minded that prime - well the initial primary function of the Commission is to determine whether or not it is able to resolve this matter by conciliation. Mr Markiewicz has attended today for that purpose because he had been in a negotiation process and without wishing to detract from the important of the role, I should note that this particular matter will not be particularly hopeful for resolution at this stage. There has, on my instructions, been some proceedings before the Commission already, before Senior Deputy President Recallahan. I can't inform you in detail of the details of those proceedings although I believe Mr Markiewicz could but they did not result in a resolution of the matter,

PN18

Also the difficulty from our perspective and perhaps I just need to give a small background is that there have been negotiations going on since about March between the AMWU and - - -

PN19

HIS HONOUR: Mr Manuel, without wanting in any sense to cut you off at all, I should indicate to both parties that I am more than usually familiar with some of the details. That is partly because as I have been coming in and out of my chambers in Sydney an array of matters affecting Universal Spring which is a name with which I am frankly familiar albeit perhaps mistakenly associated for some reason with Henderson Springs but perhaps it has got no connection.MR MANUEL: Different organisations.

PN20

HIS HONOUR: Different organisations. Perhaps that's part of my confusion but I had allocated a number of matters to SDP O'Callaghan. I think he went on leave at some stage and I received a communication from the AMWU and a notification of the section 99 dispute and for the purposes of further allocation I informed myself as to some of the detail. So in that context and as is proper and reasonable in relation to a matter of this kind for the Commission to inform itself, I am aware that on 27 March there was a notification of a bargaining period, that's 392 of 2002, that's by the AMWU.

PN21

There was on 3 September a notification of industrial dispute by the AMWU essentially related to that bargaining period and an attempt to apparently advance negotiations in relation to the replacement of an agreement that expired on 30 June. On 19 September there was another matter issued before the Commission which was request for conciliation by the AMWU. On 11 November there was a notice of initiation of intention to take industrial action initially in the form of a stopwork meeting.

PN22

On 13 November there was the circulation by Universal Spring of a proposed 170LK agreement. On 15 November there was a request by the AMWU for access to the time and wages book inspection. On 20 November there was a refusal by Universal Spring as I understand it to allow an inspection and a reference to either a lock out or to an alleged lock out as to which I can find no trace of section 170 and no notice on the file if it was a lock out.

PN23

On 27 November there was a vote on the LK agreement. On 4 December there was an application for the certification of that agreement. On 28 November there was a notification of a dispute by the AMWU as to wages and other records inspection and associated with that was an application that the Commission give it notice in the event of a 170LK agreement being lodged for certification. I have read the proposed 170LK agreement.

PN24

I note that it is down for certification before Commissioner Foggo who, for personal reasons I think, instead of dealing with it perhaps yesterday, I am not sure what her original intention was, I see from case tracking that it's scheduled for 16 December unless I am mistaken and I have read the antecedent agreement which was as recollection says with the AMWU under 170LJ and which in a number of respects is similar or identical to the current agreement but in several other respects is different so I am conscious of that much of the background.

PN25

I note that the allegation is that there are several employees but I mistakenly assumed that it was five who were five on the picket line and there were 13 at the site but perhaps that's a mistaken impression. So I've recited that, (a) so that the parties are conscious of the background that I have and I suppose to cut to the chase, I might ask those at the other end of the bar table what would resolve this dispute at this stage.

PN26

MR MALONEY: My instructions would indicate, sir, that what would resolve the dispute at this stage is that the applicant withdraw it's application for certification of the agreement which is presently scheduled for consideration by Commissioner Foggo on 16 December and to enter into negotiations with the union. I can indicate to your Honour that the AMWU's position is that there is no valid majority in relation to the vote on that agreement.

PN27

HIS HONOUR: Why do you say that?

PN28

MR MALONEY: We say that because the section 170LE refers to a valid majority, of course.

PN29

HIS HONOUR: Let's go to the substance of it, Mr Maloney.

PN30

MR MALONEY: My instructions are that the prior vote was six all and that vote took place on 4 November. So the agreement was, in a sense, then appropriately dealt with. My instructions are that what subsequently transpired was that the employer engaged a casual employee and that casual employee was engaged after the first vote but prior to the second vote which resulted in the seven 6 vote. My client says that we have here a situation where all of the relevant employees, bar this casual employee, are full time employees, full time permanent employees and accordingly the vote taken at seven six was not a valid majority vote for the purposes of the section.

PN31

The reason I bring that to your attention, sir, is that apart from anything else the assertion contained in paragraph 7 of the application, namely, that there is a valid majority of the employees is an assertion which my client disputes and I should also I think, sir, add that my client sees that what we have here is industrial action but protected action and in relation to that my learned friend has indicated to me that his client's position is that the bargaining period has been terminated under section 170NV.

PN32

HIS HONOUR: I understand that. I don't want to get into technical area, we can come to that if we need to. Let me go back a point or two. You've got six members presumably who say the agreement struck isn't what they want. Is that purely a matter - are you in a position to say whether that's a matter of the identity of the negotiating party or is it a matter of the content of the agreement? Why did they vote against it?

PN33

MR MALONEY: I can indicate that my understanding is it's primarily a matter of the identity, as your Honour puts it but if your Honour would give me just a moment to speak to Mr Simmons I can clarify that some more.

PN34

HIS HONOUR: Let me go a bit further. The deal that's reflected in the proposed agreement is $30 above the award rates applicable to the classification schedules that are set out. Clause 6, $30 above minimum award rate - or at least $30:

PN35

Will increase by $30 a week to a minimum of $30 above the award rate as from 26 June 2002.

PN36

Now, that is to be understood by reference to appendix of the agreement which shows, as I understand it, the production team member, hand and grinding sections, you start off with a C13. So, that would be $30 plus on the C13. Then you have an advanced stage which is a C12 and I don't quite understand these things. For somebody who is only in group A, minus $7.20. For a person who is in group A and B is C12 plus $7.20. Then a specialist, that work gets C11 which is currently $491.50. They will get $30 on top of that in each instance and they then get under the proposed clause a top up in accordance with national wage case decisions over the three year term of the agreement.

PN37

In addition they get the career path tables which reflect a movement from standard C13 to C12 to C11. For C14 to C13, C12, C11 in the case of the bedding and upholstery sections. And I haven't gone in detail to the others which appear to be higher classifications. So that is the wage rate.

PN38

In relation to long service leave, as I understand it, the company has increased the existing provision. Instead of one week for every year of service it is 1.3. Instead of availability after eight years of service under the existing agreement it is after seven years. The former wage structure appears not to be at least any better as I understand it than the one that is proposed. I didn't pick up any difference with it.

PN39

Superannuation, I can't say that I picked up any distinction there. It is more a matter of assumption on my part that there is a definition of ordinary time earnings and then contributions in accordance with the Superannuation Guarantee Charge Act. But if there is change there then it is not one that I have detected.

PN40

I have dealt with long service leave. Personal leave, there is an increase from 76 hours of personal leave a year to 80 hours under the LK agreement. I didn't detect any other differences of any substance. So, that is effectively a more advantageous provision.

PN41

Employment security, there is a corresponding clause in the earlier agreement but there are some deletions from it. Going to no contracting out of work covered by this agreement and a rather vague provision, 12.4:

PN42

Measures aimed at ensuring that new employees are recruited with the aim of reducing level of unemployment in the trades.

PN43

I am not entirely sure of what the changes are to consultation. There is an obligation to consult in the LK agreement but perhaps it is less union oriented than the earlier one. Nonetheless, it is an obligation to consult. My impression is that clause 10, facilities, is much the same as a similarly worded clause 22 of the existing agreement. Redundancy packages that appears, as far as I can tell, and this was a hasty reading, an express entitlement to up to 20 weeks pay for 30 years service, and advance of TCR. Unless I am mistaken the existing provision didn't provide a specific redundancy entitlement.

PN44

Training. There is some variation but there is some correspondence between the provisions. Dispute settlement procedure. There is a retention of much the same wording, I thought, as is in the existing clause 20. Including a relatively full reference to the 170LW procedure. The difference is whether it is at the expense of the parties or at the expense of the employer should there be a dispute. There is a provision for bonuses which wasn't in the previous agreement.

PN45

Now, the deletions are certainly in relation to union meetings, clause 19. Casual and contract labour I don't see a counterpart but there is an importation of the metal engineering and associated industries award which provides for a 25 per cent loading and the other entitlements of longer term casual employment. I have referred to the deletions at 12.4 and 12.7.

PN46

I didn't see a corresponding provision for blood donors leave. There is a change to the specifics of journey accident cover that I thought that there is a continuing obligation on the company to provide. I didn't see reference - at least I didn't note it - to the consultative committee being continued over. Provided for in clause 23. And the no extra claims provision is a little bit fuller to head off the M-West situation.

PN47

Now, I have gone through those in detail because what I am trying to get your minds clearly focused upon is what are the real differences between you. When I look at the 170LK agreement, apart of course from questions of who was doing what and with which and to whom, whether there was a valid majority. It is not an agreement that the Commission is going to look at and think well this is a done deal; unless you can persuade the Commission.

PN48

If that is the case I can't see why the AMWU with six members split should be trying to persuade members that it is a done deal, unless it has some very specific things in mind to say, well look if you strike the level here then we have a deal. That is what I would hope you can get on to out of today.

PN49

There is a secondary consideration associated with it. The content of the agreement is the primary consideration I would have thought. I say that because if the matter were to be resubmitted and everybody act according to Hoyle. If the company increases its ante by 10 bucks or 20 or whatever figure, then the members on the job are probably going to vote for it. You are not that far apart that the members are going to feel threatened, particularly if six of them are already prepared to buy the deal.

PN50

The other side of the coin might be whether it is LK or LJ. The company's doctrinal opposition to an LJ agreement appears to have started somewhere about 13 November. If I am correct, on Armistice's Day the union gave notice of intention to take industrial action. Now, you can keep on being buried down that line but while the negotiations between March through September to November May have been unproductive you are now past that stage. There is a deal that could be struck between you.

PN51

It was the recourse to industrial action that appears on the bit I know - and I don't need to know the whole story - to have triggered the company into taking 170LK directions. I suggest that that is a problem that you do try to resolve. It will involve a bit of loss of face for both sides. But bear this in mind, so far as I can tell, the company never instituted a bargaining period. So far as I can tell, if the company did lock out any or all of its employees it didn't put on to the bargaining period that was extant a section 170M03 notice.

PN52

If it didn't lock out, then of course that didn't happen but there is an allegation on the file, I think it is the AMWU quoting, I think, the company that there was some form of lock out which is the reason the wages couldn't be expected. So, if you end up before Von Doussa J or somebody else with this you are going to have quite a nice little nest. It will probably take you about two days and 10 affidavits to sought out what happened and who did what and with which and to whom. If there is a bargaining period ended whose bargaining period was it? Who is the negotiating party? If the company forgot to institute a bargaining period with its employees then it now has an agreement. It didn't ever have a bargaining period with the negotiating party that was there which is the AMWU which notified the bargaining period which on the company's pleadings is said to have been ended by the agreement with another negotiating party, the employees.

PN53

You will have an interesting explanation either before me or on appeal of s.170 MVA read in conjunction with 170 MN 1(a) turning upon whether the agreement has been certified or not certified 170 MI, 170 MO and the three and perhaps 170 NC. I won't take you to those but I do refer you to them in terrarium because for 12 employees you are likely to have a fairly rich area of litigation over what, are you negotiating with AMWU and from the union's side if you keep out on the grass while this debate goes on, apart from any actions in tort with 166A Fiat, or actions in tort without 166A Fiat, because if it is not protected action you don't need a 166A certificate. You just go along anyhow. In some states you can usually find a judge with big enough horns not to worry about 166A whether it is there or not in a Supreme Court. It is not a particularly happy prospect for either side, I would have thought, if there only 12 or 13 employees.

PN54

A strong recommendation to you is cancel the industrial action, cancel the litigation, look solidly at what is in the agreement. From the company's end allow a) negotiations with the union with a view to sorting that out in as peaceful a way as you can and b) acceptance that in order to reach a compromise on the recommendation of the Commission here is an agreement that goes forward because unless you are really dying in a ditch on the union end for conditions of employment for six members or the swingers, and I note that there are eight women at the site according to the statutory declaration, what is the battle going to be about and why is it going to be worth so much as $30 above the minimum rate? There is an increase in Long Service Leave of, a minor increase, I don't know how minor it is, four hours in personal leave. It is not a situation where the company has gone out and tried to undercut award conditions. It has picked up a lot of the wording out of the existing AMWU Agreement. It has changed a few bits that it wants that it thinks are inconsistent with flexibility. My real recommendation to you is try to make a winner for both sides out of this. You don't want to spend too much more blood over this one because the possibilities are rich for litigation and there would be a lot of people interested in this precedent and I don't think that is in the interests of either the AMWU in the matter or of the company.

PN55

In relation to Mr Maloney's position you might have a win or two. I have suggested grounds on which they would be there. Probably the 170 LK4 was a reasonable opportunity given to the union. It might also be a ground. Let's assume the company doesn't persuade Commissioner Foggo next week to certify the agreement. If you go on beyond that you are still going to be debating these issues. Somebody is going to want to appeal. If I grant a certificate or don't grant a certificate today somebody is going to want to appeal and there will possibly be people outside of those who are at the bar table now who would be interested in running an appeal because believe you me there are some fairly novel grounds mixed up in it.

PN56

I have said on other occasions and for the benefit of the employer party in this, I will repeat the crack, it is the effect that if you are really looking for difficulties in collective enterprise bargaining and bargaining periods have something, what is called a multiple negotiating parties personality disorder, get confused who it is you are negotiating with and if you stick at it with any luck you should have a dispute that will run on several months and end up very bitterly in two or three courts. It has certainly been an ingredient in the formulas that I am familiar with in Joy v Mining. I think in one of, I am not sure what the other one way, Transfield. I know I have used the comment a couple of times. It starts with an employer's refusal to accept that an established negotiating party effectively becomes a dispute about union recognition and the multiple negotiating parties comes out of, to some extent, the employers selecting who they are negotiating with.

PN57

In this instance so far as the union is concerned the employer has selected to a degree although it didn't go through the formula and it has carried the day with at least six of the employees on your own case and the seventh who joined perhaps after the 170 LK4 notice was given. That is a nice novel proposition in itself that should be worth a few pages of an affidavit before the Federal Court and a ruling. I haven't though of it. In much the same way I don't think anybody has thought of how 170 MV operates when the agreement is struck not with the negotiating party to the bargaining period but with someone else who could be the negotiating party to another bargaining period if one had been instituted, namely the employees in the location. There is a gap in the Act there.

PN58

Now, I have run on at fair bit of length because time is relatively short. I have got to try to get to stop, I think it the action, isn't it, I haven't glanced at s.166A for this but it does seem to me that - I was a little bit dismayed when I saw that there are only two of employees, I think well Universal Spring must be having a particularly bad season to have generated so much activity before the Commission. You have disabused me of the notion that it was Henderson Spring. I know I had a hard bargaining period a couple of years ago but where is it that you are apart in relation to money and what the company is going to pay at the end of the day? Is Mr Sibbons able to say that - how long would it take you to know what would settle this agreement in terms of conditions?

PN59

MR SIBBONS: Sir, I would say that we can have a position tomorrow morning if we can have some fruitful discussions here today with the company. We have been open and willing to discuss the content of the agreement with the company and we have not withdrawn that offer and I said, sir, by tomorrow morning we could have a position back to either yourself in the Commission or the company or the like.

PN60

HIS HONOUR: I am happy to stand the matter over until tomorrow. As luck happens there is a Full Bench that has fallen through. Is that a practicality? What is happening on the scene, what is the picket doing?

PN61

MR SIBBONS: Well, it's actually a picket, your Honour. Nobody is being prevented from entering or aggressing the premises.

PN62

MR MALONEY: .....

PN63

HIS HONOUR: I have never heard of an impasse at picket from a union member at the bar table, Mr Maloney. You wonder what they are doing there a lot of them.

PN64

MR MALONEY: Well it's a peaceful protest, your Honour.

PN65

HIS HONOUR: I know, I'm probably being wrongly facetious.

PN66

MR MALONEY: What I'm trying to convey, of course, your Honour, is that I - - -

PN67

HIS HONOUR: If you believe the union videos, people are standing there like trees. If you believe sometimes the equally unexciting company videos, the trees move every now and again and stand in front of the truck.

PN68

MR MALONEY: These ones are moving, they're not standing - - -

PN69

HIS HONOUR: I have watched a lot of boring videos recently and I have to say again, partly inspired by bargaining disorders, I suspect that I've cut you off, Mr Manuel. The union response, as I understand it, is (a) that the picket is not doing any harm and that (b) they're prepared to come back tomorrow with a view to finalising what it is that would take to settle it and I think I would be disposed to add to my recommendation that there be a moratorium or a suspension of industrial action pending the finalisation, at least, of this process.

PN70

I have put to you, I hope, what are fairly cogent reasons why a litigation course from either side is not a great idea and fairly cogent reasons why (a) the company should be looking at an LJ agreement as part of an outcome and (b) the union should be looking very constructively and quickly at what would make that agreement final from its point of view.

PN71

MR MANUEL: Yes, your Honour, I think it would be fair to say it would be foolish on our part not to hear what's available to be put and so we would certainly invite the union to put its position to Mr Stiller and perhaps Ms Markovitch as soon as they can tomorrow. Just as an aside I should note we don't accept the picket isn't causing harm and we certainly accept that at this present moment they're not stopping things, but the objection from the company is interference with contractual relations and that is that half of the workforce has been removed.

PN72

But we would be quite comfortable if the Commission is minded to stand the matter over to tomorrow or Wednesday because the 72 hours, I think, runs out at about 2.50 or so on Thursday. Sorry, I've got my days wrong, stand it over to tomorrow or Thursday, because the 72 hours doesn't run out til some 2.50 or thereabouts on Thursday afternoon.

PN73

HIS HONOUR: Well, what's better, I'm just not sure where I am on Thursday morning.

PN74

MR MALONEY: For our part, your Honour, we would agree for your Honour to reconvene this matter on Thursday would be appropriate.

PN75

HIS HONOUR: Right, I'm just a little bit - would 9.30 be too early for you? I have a commitment at around midday our time or at least I've got to leave the city at about midday, 10 o'clock our time is 9.30 your time and I could then probably give two hours to it if necessary.

PN76

MR MANUEL: Thank you, your Honour, that would suit the employer.

PN77

MR MALONEY: And that's fine by us too, your Honour, that's 9.30 our time on Thursday.

PN78

HIS HONOUR: Yes, by video conference.

PN79

MR MALONEY: Yes, your Honour.

PN80

HIS HONOUR: Now, I haven't pressed the removal of industrial action. I note that Mr Manuel hasn't insisted upon that, but I strongly press that there be no escalation and if practicable, even in the interests of the employees, that there be a voluntary suspension of the industrial action. The union has got to this point. How long have they been out on the grass?

PN81

MR MALONEY: Almost four weeks, sir.

PN82

HIS HONOUR: Well, why don't you act on the Commission's urging. There's nothing going to stop you going out again.

PN83

MR SIBBONS: Sir, with respect to that, we would certainly like to take up the Commission's recommendation, however we do have concerns with the actual content of the negotiation and coming up with something that's going to be sensible.

PN84

HIS HONOUR: I hear what you say. I won't take the matter further now. I've indicated by fairly quick references to the different bargaining positions and where you're at, but it's certainly something that I think you might lay the ground work and to the extent that the picket is passive, I do ask that there be some signals that you're moving towards a phase where the company knows that if it alters its position and prepares to accept a 170LJ it's going to be able to strike a deal without a prolongation of industrial action.

PN85

Now, the basis upon which the company can sell that, I would have thought to its constituency goes, of course, to the issue over genuine majority. If you've got a debate about the constituency then you may have to have a re-vote in any event on the 170LK agreement that you've got, that in itself would perhaps constitute a basis upon which the company might re-think and explain its position as one where, in the spirit of compromise, it's accepted the direction of movement proposed by the Commission.

PN86

But you've both got to be conscious, particularly with this group of employees, of finding a way out each to the other. It's a big sacrifice for people to be paying, even in this instance, for the sorts of benefits that are on offer going to take them a long time to pick up that month's lost pay and probably for the company to pick up the tension that it's had through its work place over the matter. So this is the stage at which I really do commend to you that you start to prepare taking a step back and to prepare the membership for reaching a compromise. Disputes have got to come to an end.

PN87

MR MANUEL: Your Honour, I wonder if I can just make one final point? I want to make it clear it is not a condition for negotiation that the industrial action cease. We're not going to say you're still on strike therefore we're not talking to you. We'll be talking to the union in that regard, but I don't intend to sit back and ignore your recommendation, but we will be meeting with the union regardless of what steps they take.

PN88

HIS HONOUR: I'm not pressing the recommendation in that sense, Mr Manuel, because I'm conscious that the union's claim is that it's engaged in protected action and the Act allows that within limits. I have been putting it more as, at least I suppose, a straw in the wind that gives both sides something to skate on. I realise that there are managements running these sorts of agendas from a company's side and all I'm trying to say is to take this opportunity from both ends to get the matter back on the road. I'll adjourn the matter until 9.30 am Adelaide time unless there's something further, well, hearing, it is, in effect, of the 166A application and conference. The Commission will adjourn.

ADJOURNED UNTIL WEDNESDAY, 10 DECEMBER 2002 [3.28PM]