C2002/5241, Transcript of Proceedings [2003] AIRCTrans 2009 (27 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 2656
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2002/5241

UNITED FIREFIGHTERS'
UNION OF AUSTRALIA

and

COUNTRY FIRE AUTHORITY

Notification pursuant to section 99 of the Act
of a dispute re the alleged failure of the CFA
to meet and confer on terms of an enterprise
agreement

MELBOURNE

2.21 PM, MONDAY, 12 MAY 2003

continued from 16.4.03

PN303

THE COMMISSIONER: Yes, Mr Rozen.

PN304

MR ROZEN: Thank you, Commissioner. Commissioner, the matter has been brought back before you at the request of the CFA and that is not a course that we oppose at all in the circumstances - it is probably the only sensible way for this to move forward.

PN305

The Commissioner will recall that this is the UFUs application for a direction in relation to participation in bargaining that is currently taking place between the CFA, the ASU and APESMA and the last time that it was before the Commission it was listed for hearing on I think it was 20 May - next Tuesday, and it was left to the parties to try and agree some directions, the union having filed some statements as at the last time it was before the Commission and in the event that the parties were unable to agree on directions for programming the matter, the matter was come back before the Commission and here we are because we have been unable to agree.

PN306

It has come back before the Commission slightly later than I think had been anticipated by the Commission. I think the Commission might have suggested as 5 May as a time on which it may able to be dealt with. The nature of the communication between the parties was such that it wasn't feasible to come back on the 5th, and that is not said as a criticism of anyone. It is just the way it seemed to pan out. What divides us in terms of directions is essentially a matter of - of principle - and that is the nature of the hearing that is to take place on 20 May.

PN307

We are in agreement that it should proceed on the 20th. The union's position if I can summarise it is that we think the hearing should be a full hearing, that is it should determine the merits of the union's application involving any factual issues that are in dispute, and any legal issues in the way that an ordinary hearing would.

PN308

The CFAs position, as we apprehend it, is that the hearing should be confined to the determination of a jurisdictional issue as a preliminary matter. That is whether the Commission, pursuant to its statutory powers, is able or empowered to give the direction that the union seeks quite apart from the question of the merits of whether it should do so. In other words, it has the discretion to determine the application.

PN309

The other matter that I should mention in this point in time, Commissioner, is that I would like to place on record that in a letter to the CFAs solicitors dated - just excuse me a moment, dated 8 May 2003 the union advised the CFA, and I quote:

PN310

It is our intention to ask the Commission to proceed to determine our application on 20 May 2003. We place you on notice that while maintaining its application for "direction" in the form of exhibit R1 -

PN311

and the Commissioner will recall, that was the draft direction that I handed up on the last occasion -

PN312

as an alternative the UFU will ask the Commission for a "recommendation" in the same terms.

PN313

I raise that now, Commissioner, because that may have some effect on the issue of jurisdiction.

PN314

So that is the first matter really that needs to be resolved this afternoon - that is, the nature of the hearing that is to take place on the 20th, and the sort of the directions that we - that would be made really flows from - would flow from that. The second issue that the UFU seeks to agitate this afternoon is what is to occur, if anything, between today and 20 May in terms of negotiations between the UFU and the - between - I am sorry, the two unions and the CFA.

PN315

The Commission will recall that I raised that matter towards the end of the hearing on the last occasion and then there proceeded a discussion between the parties which ultimately led to the matter being adjourned by consent. What has happened since then is that the CFA, in accordance with what was agreed on that day, has considered the further material that the union provided it with, has responded to the union in writing as it said it would, and has said and I paraphrase that, "That is unsatisfactory, we still maintain our position that you don't have eligibility in relation to any of these employees", and has said that it intends to recommence negotiations but that it had no further plans, if I can use a colloquial expression but that it would advise the union when any meetings were arranged. And, as I am instructed, nothing further has occurred.

PN316

The letter said that the authority would advise the UFU of arrangements once they have been made. So, they are essentially the issues. Perhaps before I sit down I might just add that as we understand the jurisdictional point that our learned friends wish to take, it at least in part seems linked to the eligibility issue. I hope I am not doing my learned friend a disservice. But that is as we understand the jurisdictional point. That being the case it seems to us that this is a case where hiving off the jurisdictional point may prove unworkable.

PN317

In other words, it may be that it is not just say a question of statutory construction which could be dealt with separate from the evidence but rather, once again as we understand it, the two are linked and that therefore in our submission that lends weight to our view that it achieves little in terms of time and resources to have the jurisdictional matter determined in a factual vacuum, if you like. So subject to anything my learned friend has to say about those points we say that there is still time within which all necessary material could be filed.

PN318

I can indicate that we are confident of filing one further statement tomorrow morning and that will be our material in support of our application. We would seek a direction that the Country Fire Authority reply to that material by say Friday lunchtime. Given that they have had the bulk of our material now for close on three weeks - a bit over three weeks, that shouldn't present a difficulty and each of the parties could file an outline by say Monday lunchtime so that we are in a position to proceed on Tuesday, 20 May.

PN319

THE COMMISSIONER: Yes, thanks, Mr Rozen.

PN320

MR ROZEN: Thank you, sir.

PN321

THE COMMISSIONER: Mr Mueller.

PN322

MR MUELLER: Just in respect of one reporting matter. The position in respect of negotiations between the parties was that when we - when we, the CFA informed the union that we did not accept their assertions about eligibility in respect of any of the asserted categories of employment, we said that we did intend to re-commence negotiations and we would advise them when that was to happen.

PN323

In fact we did then advise the UFU by letter from Mr McDonald early last week that there was to be a further meeting as it happens between the CFA and APESMA on Wednesday and that meeting happened but the UFU I think were quite aware of that fact and it perhaps just hasn't filtered through into the material that my friend has at the moment.

PN324

Now going to the more substantive issues that arise when the matter was last before the Commission the matter of my friend seeking a direction, in the terms of R1, was first raised. And in the course of explaining what the union's intention was in that respect Mr Rozen at paragraph 201, he said this. Does the Commissioner have a copy of the transcript of the last occasion?

PN325

THE COMMISSIONER: Yes.

PN326

MR MUELLER: Paragraph number 201. Mr Rozen is there addressing a number of issues but when he gets to paragraph 201 he is speaking about the relevance of the matter of eligibility to the application that he had announced to the Commission and he says as the Commission sees that, he says that the legal question, namely whether the UFU had an eligible member who was in respect of whom it was entitled to represent the industrial interests in regard to the work the subject of the proposed agreed, he says:

PN327

Well, that's a legal question at the time of certification.

PN328

But he went on to say:

PN329

I will ultimately be submitting, sir, in relation to those proceedings that you do not have to form a concluded view about the eligibility issue. There will be sufficient evidence for you upon which you could do so but it is no part of our application. There is no part of our application that requires you to do so.

PN330

Now, we - at the time we took notice of what my friend said in that respect and the exchanges that happened subsequently about setting down a date for hearing of the application that my friend had announced were had in that context and indeed we were rather influenced by the fact that the Commission said that it had a date - on 20 May, where it could address the issue that had been raised, namely the question of whether the Commission could make a direction in the terms that was sought.

PN331

Now as a result of, or arising out of exchanges that happened between us subsequently it became apparent during - during last week that the UFU, in its application for the direction, wishes to argue as part of its case its entitlement to represent each of the categories of employees which it has mentioned during the course of the matter.

PN332

In other words it became apparent that the hearing, or at least as they anticipate it - anticipated it, the hearing would indeed go to the substantive question of eligibility in respect of each of the categories of employees concerned. And we thought that that was inconsistent with what had been said on the last occasion and as a result of that we said, "Look, that is a large exercise and it is a hearing that will occupy several days of the Commission's time. The material will have to be prepared, it will have to be exchanged, there will inevitably, at least on our part be a deal of cross-examination of the union's witnesses on the questions - on issues relating to eligibility".

PN333

What we thought was that the question - the threshold question of the Commission's jurisdiction to make a substantive order of the sort - of the type sought, should be addressed first because if the answer to that question was in the negative then it would be just unnecessary to embark upon that exercise of determining whether the UFU had eligibility in respect of some or all or any of the categories of employees involved.

PN334

And we say that that initial legal question as to whether the Commission has the jurisdiction and power to make a direction in these proceedings, in the terms sought, should be first determined and that is a convenient thing to do. And we have proposed to our friends a set of directions which would allow that to happen and could be adapted so that it could happen on 20 May, and if I could hand up a copy of those directions - those draft directions which we have proposed - - -

PN335

THE COMMISSIONER: I will mark that as exhibit M1.

PN336

MR MUELLER: Yes.

EXHIBIT #M1 COPY OF PROPOSED SET OF DIRECTIONS

PN337

MR MUELLER: Now there would have to be some - having regard to the fact that some time has passed there might have to be some adoption of those proposed directions to fit in with any proposed hearing date.

PN338

Now there are two other things that I wanted to mention. When my friend announced that the union was seeking a direction in the terms sought, on the last occasion, there was reference to a decision by Commissioner Smith in the Census matter. I think there might have only been reference to one decision in that respect but my friend and I have pursued our own researches and there are in fact two decisions which have been handed down by Commissioner Smith, which - - -

PN339

THE COMMISSIONER: Yes, there is one subsequent to the one that was - - -

PN340

MR MUELLER: That is right, a supplementary decision of 10 April 2003. And in that decision, and I mention this for completeness, Commissioner Smith decided in the context of that case that he was armed with power to make a direction in the terms that were sought by the CPSU in that case which is in many respects akin to the direction which is sought by the UFU in this matter.

PN341

Now, Commissioner Smith, it is important to realise did not in fact make a direction in those terms. What Commissioner Smith did was determine that he had the power or the jurisdiction however one wishes to express it, that he had the power to make such a direction. The question as to whether he should not would be a matter of - that would be determined on merit arguments and I should mention that that decision has since been the subject of a Notice of Appeal lodged by Census against the decision, that notice being I think filed on or about 29 April 2003.

PN342

Now, I draw that to the Commission's attention for two purposes. First that it will - it would form of - those decisions would form part of the, as it were, the overall legal context in which the jurisdiction argument as we identify it would take place. And secondly to indicate also that it is subject to Appeal. My understanding is that the Appeal has been set down for some date in August this year.

PN343

The additional thing I should say about the decision is that when we come to make a submission about the Commission's jurisdiction to make a direction in the terms sought, we will be contending that apart from points of distinction between this matter and the Census matter that the decision of Commissioner Smith is, in any event, incorrect and that the Commission, as presently constituted, would adopt it or apply it.

PN344

Now - so the position that we wish to put forward so far as directions is concerned is that just as Commissioner Smith saw the utility in deciding the jurisdiction question first so too should the Commission in this case decide the jurisdiction question first. And more so, because if the matter of eligibility is to be canvassed then that is going to be a substantial hearing and the Commission is going to have to set down some dates for that hearing and to allow for a proper exchange of material in relation to it.

PN345

THE COMMISSIONER: What would be the position, Mr Mueller, if it was just a request for a recommendation? Because it seems to me that there are different considerations. What we have got is all the lawyers here arguing all the points of law, but it really does concern me just what the position of the CFA and UFU is on the ground. I mean if the UFU suddenly whacked in a bargaining notice and took, or threatened to take protected industrial action, in circumstances where there was a debate about whether there was eligibility and so on, there might be a risk for them but there might be a risk for the CFA too if it - if it turned out that one of the people was eligible.

PN346

And it seems to me to be a range of other tactics that would be open to the UFU to adopt, at an industrial level, that wouldn't be in the interest of either the work force - or necessarily be in the interests in a broader perspective, if you like, in an industrial relations rather than in a legal perspective of either the employees or the CFA.

PN347

MR MUELLER: Yes.

PN348

THE COMMISSIONER: And at some point - I mean if people want to stand on their legal positions and argue them, that is fine but at the end of the day there are fires to be put out. There are processes that have got to be undertaken in respect of the next fire season in the rural area, all of which might be affected by this and I - I don't in any way want to attack the lawyers in this but there is a danger that if people stand on their legal dig that the practical things get lost and - - -

PN349

MR MUELLER: Yes, well I certainly can say from our side that we appreciate that side of the equation but - - -

PN350

THE COMMISSIONER: Well, can I just say that there appears - from my quick examination of the correspondence in this matter, I have some difficulty with that proposition because it seems to me that there is some force in the UFUs contentions that on the one hand they have said to do one thing and they do it, and then they come back and say, "Well, we don't agree, we are deciding this matter", it does have that - I am not going to use the ..... example, but it certainly has a - it might be very difficult for the - the CFA to justify that if - if circumstances turn bad.

PN351

MR MUELLER: Well, I think what can be said, Commissioner, is that the UFU are a sophisticated organisation. They have - - -

PN352

THE COMMISSIONER: Well, I wouldn't have gone quite so far, but - - -

PN353

MR MUELLER: In an industrial sense, I mean. And they see that the way to advance their industrial interests is to take the course that they have.

PN354

THE COMMISSIONER: No, you see. If you go back to their correspondence that's exactly the point that I am making. If you go back to their correspondence - Mr Marshall's correspondence of 14 April, where he seeks to have the matter re-listed:

PN355

We seek a recommendation/direction that would see the UFU included in the negotiations.

PN356

So he is not saying it has to be a direction and, indeed, Mr Rozen has indicated today that - that course of action, and it seems to me that they are different - different approaches.

PN357

MR MUELLER: They may be. I think I perhaps was at cross purposes when I responded.

PN358

THE COMMISSIONER: Look, I might have taken it too far too.

PN359

MR MUELLER: All I was indicating was that the union are here in the Commission, asking the Commission to help them or assist them in this way and I would suggest that at the moment there is no reason to suppose that there is another - or that the union see that it is practical for them to take a different course and there might be all sorts of industrial reasons as to why they can't, one of which are may be their sensitivity about their eligibility position.

PN360

They may not see it at all in their interests for instance to initiate industrial action. They may not be able to organise their members, such as they are, to do it.

PN361

THE COMMISSIONER: And if people want to rely on that to defend their position that is a risk they run.

PN362

MR MUELLER: Yes.

PN363

THE COMMISSIONER: And all those potential outcomes I am talking about remain. I mean the CFA would be up to some considerable criticism, I would ave thought if they say, "Well, we don't believe you have got eligibility". They take the action. Or get half way down the track at taking the action and suddenly find themselves in Court and there is an argument about whether they have got the eligibility and the CFA loses that argument in respect of one person. I would have thought they would be open to a fair degree of criticism in that situation.

PN364

MR MUELLER: Well, that - that is a hypothesis that might - - -

PN365

THE COMMISSIONER: But I presume that they have taken these matters in to account in coming to their - - -

PN366

MR MUELLER: Yes, I think it is a matter that is brought into the balance and judgement as to the correct approach, but to - to deal more directly with the issue that you raise. If a recommendation is sought then we adopt the same position. We would be saying for essentially the same reasons, that we wish to raise in respect of the direction, that a recommendation of the type which is sought is not a recommendation that the Commission could or should make.

PN367

THE COMMISSIONER: Well, that was exactly what I was directing to. Because it seems to me that the Commission doesn't just act in terms of what people's legal rights are, they also take account of what the industrial situation might be. A person - a corporation has a legal right to terminate. Let us go back to prior to the amendment of the Act when the Commission made many recommendations before it had a direct jurisdiction in relation to termination of employment.

PN368

And the Commission would, knowing that it did not have jurisdiction to intervene, and make orders, still would make recommendations because it came to a view that notwithstanding the legal position of the employer, the industrial position of the employer was unreasonable, and it would make a recommendation.

PN369

Now it wasn't enforceable any more than the recommendation from the Commission in this matter might be enforceable. And someone could have got up, and I am sure they did, and made arguments that because the Commission didn't have the power to make an enforceable order it ought not make a recommendation. But I put it to you that that sort of line of argument didn't work - didn't wash - didn't wash and why should it wash in this circumstance?

PN370

MR MUELLER: Yes, well, it is - - -

PN371

THE COMMISSIONER: If I was convinced - sorry, I have got to preface all of that - - -

PN372

MR MUELLER: Yes.

PN373

THE COMMISSIONER: - - - if I was convinced that industrially a recommendation was appropriate even though I might not have the power to make a binding order.

PN374

MR MUELLER: Yes. Well, we would be submitting, if we were placed in that position, we would be submitting that the scope or ambit of recommendations that the Commission could make in this particular setting is more limited than the scope that it has possessed in respect of other matters, and that there are powerful reasons as to why, in this context, the Commission would not make a recommendation which went further than the legislation contemplated it should go in respect of this type of matter, and I mean by this type of matter that we here dealing with a negotiation of a Part VIB agreement, and that our argument would be that there are indications within, for instance, section 170NA which suggests that a recommendation of the type that - in the same or similar terms of the directions is to be treated as excluded, just as a direction in those terms would be excluded.

[2.50pm]

PN375

You see, Commissioner, it would be part of our argument that under section 170NA(1), if that is the source of the power or jurisdiction that is invoked, we will be saying that there is no matter of the type which that section refers to that could attract a recommendation of the type that has been foreshadowed.

PN376

THE COMMISSIONER: But aren't we one step back from that? There is alleged - I mean, it may be that we haven't - you are now inviting me to pay attention to the jurisdictional basis of the application. Because, as I perceive it, it is a section 99 notification of dispute. It may be that I have got to go back and make a dispute finding.

PN377

MR MUELLER: We are not entirely sure - - -

PN378

THE COMMISSIONER: And we are one step back - yes, I disagree with that, but we are one step back. That may be my fault from the start. But we may be one step back from 170NA, because 170NA talks in terms of - and particularly (2), talks about the involvement in the employee organisation. So at the moment the issue is about whether the employee organisation be involved, and it is in a - it is potentially, I don't make a finding here, but arguably it is having a dispute of an industrial character with the CFA about participation in negotiations for certain types of employees.

PN379

MR MUELLER: Yes.

PN380

THE COMMISSIONER: Why is that section 99 dispute any different from any other section 99 dispute? It may mean that I can't make any orders because it is not an allowable matter. But, gee, I get involved in section 99 disputes all the time, and - - -

PN381

MR MUELLER: And you make recommendations. Yes.

PN382

THE COMMISSIONER: Make recommendations, and just because it goes to representation at negotiations - well, it will be an interesting argument.

PN383

MR MUELLER: Well, this is what makes the matter particular, if I may say so, because, to sort of summarise, we would be saying that if a direction is sought in relation to - a direction or a recommendation is sought in relation to a matter that comes within Part VIB of the Act, then section 170NA and its associated provisions, including section 170N, are the code which governs the Commission's powers in respect of that matter.

PN384

THE COMMISSIONER: But they would be exactly the same, wouldn't they? If the Commission has the conciliation powers in relation to a matter arising under this part, Part VIB, they would have under Part VI in relation to matters if that part applied.

PN385

MR MUELLER: No.

PN386

THE COMMISSIONER: Instead of in relation to industrial disputes.

PN387

MR MUELLER: No. If one concentrates on the language there, it is not simply a matter of substituting "industrial dispute" for a matter to which Part VIB applies. The question is - or the conferral of power is that the Commission has the conciliation powers in relation to a matter arising under this Part, that it would have under Part VI in relation to the matter if that part applied to conciliation in relation to the matters instead of in relation to industrial disputes. So the powers that are attracted are - - -

PN388

THE COMMISSIONER: No, no. I understand that.

PN389

MR MUELLER: Yes.

PN390

THE COMMISSIONER: But why would they be in any way restricted in respect of making recommendations?

PN391

MR MUELLER: Because the Commission would exercise its recommendation power, having regard to the careful framework of rights and obligations that has been established under Part VIB of the Act.

PN392

THE COMMISSIONER: That becomes an argument about the nature of the recommendation, not of the nature about whether the Commission has the jurisdiction to do it.

PN393

MR MUELLER: Well, I accept that that - well - - -

PN394

THE COMMISSIONER: You know, one might want to argue that the Commission would be going too far to intrude on the - let us assume that there is a right of the employer to decide which organisation or organisations it is going to negotiate with. For the Commission to recommend that it do other than that, then it ought to be very careful, because it would be intruding on what the legislation implied was a power. That wouldn't be enough to say that it couldn't do it, I wouldn't think, which is I think what you are saying about the jurisdictional question.

PN395

MR MUELLER: Well, there is all - - -

PN396

THE COMMISSIONER: That the Commission can't make a recommendation.

PN397

MR MUELLER: There is always an abiding question in administrative law which has always got some analogous use in the industrial area, to say that to take into account irrelevant matters is to make a jurisdictional error.

PN398

THE COMMISSIONER: Yes.

PN399

MR MUELLER: And that would be the nature of one of the propositions that we would be putting forward on that score and - - -

PN400

THE COMMISSIONER: Well, I understand that, and if it was only to - I mean, the difficulty that you would have, I would have thought from my knowledge of administrative law, is that the administrative law, the person to whom that comment is directed has got the capacity to affect people's rights. Whereas the exercise of recommendatory powers doesn't affect people's rights at all. You can reject the recommendation without anything flowing.

PN401

MR MUELLER: Yes. That might be, with respect, to put it a bit narrowly - - -

PN402

THE COMMISSIONER: Well - - -

PN403

MR MUELLER: - - - because we know that in the real world, and particularly in this world, a recommendation does have a particular force, and - - -

PN404

THE COMMISSIONER: The distinction was certainly made in Asahai.

PN405

MR MUELLER: Yes.

PN406

THE COMMISSIONER: Very much so made, as you will recall.

PN407

MR MUELLER: Well, it might depend on context.

PN408

THE COMMISSIONER: Yes. The Commission does things that affects the rights, but short of that, there is scope for the Commission to - I know the legislation has changed since Asahai but - well, there is an interesting debate to be had. But I simply - - -

PN409

MR MUELLER: What is certain is - - -

PN410

THE COMMISSIONER: It doesn't sound to me like that is a jurisdictional argument in the sense that the Commission can't proceed. It may be an argument that the Commission ought not proceed, and I have to say that in relation to what are relevant matters, there can be a wider debate about that in the context of industrial relations than perhaps there can be in strict administrative law.

PN411

MR MUELLER: Yes. Well, we would have thought, in any event, that the question of - that in the end the union is putting forward the recommendation path as an alternative, and secondary path.

PN412

THE COMMISSIONER: Well, they did always.

PN413

MR MUELLER: Yes.

PN414

THE COMMISSIONER: There is nothing new about that.

PN415

MR MUELLER: That is right, and - - -

PN416

THE COMMISSIONER: In fact, I think when the matter first came before me it was on that sort of basis. That is stretching my memory too much, and probably not a lot turns on it, but I don't think there was any request for an order - - -

PN417

MR MUELLER: No, there wasn't. A direction of the type sought was - - -

PN418

THE COMMISSIONER: But even in the initial stages, back in - whenever it was.

PN419

MR MUELLER: It may have been November last year.

PN420

THE COMMISSIONER: November last year, is it?

PN421

MR MUELLER: Yes.

PN422

THE COMMISSIONER: I don't think there was any request for a direction, even. There are bargaining periods.

PN423

MR MUELLER: Yes.

PN424

THE COMMISSIONER: Affecting this matter, I notice. Yes.

PN425

MR MUELLER: Yes, there are, which is why I said that we weren't - and I am not trying to make some cheap point here, but at the end of the day the Commission will need to, if we are to proceed down the path of deciding whether or not it should make a direction, will have to relate itself to some provisions in the Act.

PN426

THE COMMISSIONER: Yes. I understand that. I understand that, and there has to be a debate about that.

PN427

MR MUELLER: Yes.

PN428

THE COMMISSIONER: But how can that be separated, and this is, I think, Mr Rozen's point, and I have gone totally away from his points. How can that be separated from the factual matrix that is there, that is involved in the sorts of statements that have been submitted, which I have had a cursory glance at, nothing more.

PN429

MR MUELLER: Yes. We think that the matter could be decided by accepting what would be a set of neutral facts about what has happened in terms of the filing of, or the commencing of bargaining periods by the relevant parties, and the assertions and counter-assertions of the relevant parties, and accepting for the purposes at this stage of the threshold legal point that the union is asserting that it has coverage over one or more of the categories of employees.

PN430

THE COMMISSIONER: Look, maybe we are at total cross-purposes - - -

PN431

MR MUELLER: Yes.

PN432

THE COMMISSIONER: - - - because I have always understood the CFAs position to be if they have got coverage they are in. I have always understood that to be the CFAs position.

PN433

MR MUELLER: Yes. Yes, I think that is consistent with the instructions that I have.

PN434

THE COMMISSIONER: So if I accept - so there is not even a need to make a decision, or a direction, because the CFAs position has been you show us you have got coverage, you will be admitted to the table. Now - - -

PN435

MR MUELLER: Yes.

PN436

THE COMMISSIONER: - - - that was before you were involved and before legal counsel was involved.

PN437

MR MUELLER: Yes.

PN438

THE COMMISSIONER: And they may not have that position any more but - - -

PN439

MR MUELLER: Yes.

PN440

THE COMMISSIONER: That seems to me to be at odds with what is now being put. Now, that I reflect on it. Because if I can accept what they are asserting, then they are in, aren't they?

PN441

MR MUELLER: Just - - -

PN442

THE COMMISSIONER: Yes, I think you - - -

PN443

MR MUELLER: I think there is no misunderstanding between us, but just to clarify what I was saying, what I was saying is that the threshold points that we wish to raise don't require the Commission to make an assumption either way about the eligibility coverage of the union.

PN444

THE COMMISSIONER: No. I think that is right.

PN445

MR MUELLER: That is right, yes.

PN446

THE COMMISSIONER: And I think maybe I have misled everyone by not jumping in earlier, because I am not sure that on my understanding of the scope of the matter that was before me that there is any capacity for you to argue that I ought not make a direction, because it was always, as I understood it, all that needed to be decided - - -

PN447

MR MUELLER: I see.

PN448

THE COMMISSIONER: - - - was whether or not - - -

PN449

MR MUELLER: Yes.

PN450

THE COMMISSIONER: - - - the UFU had coverage of one or more of the people, because if they did, the CFA would let them in.

PN451

MR MUELLER: Yes. You - - -

PN452

THE COMMISSIONER: Now, it may be that the CFA has changed their position from that.

PN453

MR MUELLER: No, they haven't. The position, I think to put it precisely, was that if the CFA were convinced that the UFU had coverage over one of the asserted categories, then it was accepted that the CFA would need to negotiate with the UFU.

PN454

THE COMMISSIONER: Yes. And there then could be a dispute about whether or not there should be a single bargaining unit, or they should bargain separately.

PN455

MR MUELLER: Yes.

PN456

THE COMMISSIONER: And 170NA clearly comprehends that.

PN457

MR MUELLER: All of those things would have arisen. But the process that was put in place was the process which allowed and facilitated the union putting forward its position to the CFA, and the CFA saying whether or not it was convinced about coverage. Well, that process has taken place, and they are not convinced. It didn't carry with it - - -

PN458

THE COMMISSIONER: Well, I haven't seen all the material yet.

PN459

MR MUELLER: No, no, no. This is - - -

PN460

THE COMMISSIONER: There was a debate about what sort of material, and I think - - -

PN461

MR MUELLER: No.

PN462

THE COMMISSIONER: I think maybe, I mean, we had correspondence going back and there was a bit of a stand-off about who had to tell whom what.

PN463

MR MUELLER: Yes.

PN464

THE COMMISSIONER: And that was the point at which the Commission was called back in by your correspondence of 14 April.

PN465

MR MUELLER: Yes. But then what happened as a result of that hearing, and indeed arising out of the hearing, was that it was agreed that the CFA should treat the UFUs material as it then existed as the basis upon which they said they had coverage, and the CFA, for its part, said, okay, we will make a decision on that, and the CFA indeed looked at the material and arrived at its conclusion that it was not satisfied that the UFU had coverage over any category of employee and notified the UFU accordingly, and gave some reasons. That was the - - -

PN466

THE COMMISSIONER: And do I have that?

PN467

MR MUELLER: The process was exhausted at that point, and that is what - that was what agitated the UFU to come again to the Commission and ask for something new, namely a direction in the terms that were sought.

PN468

THE COMMISSIONER: No. No, you said a recommendation direction.

PN469

MR MUELLER: Yes. Yes, I didn't - - -

PN470

THE COMMISSIONER: Now, see, it may be that the recommendation/direction is simply that the Commission is of the view that the UFU has eligibility. Now, clearly if it makes - I mean, I don't even see it getting to the stage of direction necessarily, or recommendation. If I was convinced that there was no eligibility, I would think that the UFU would be caught by that, and if I was convinced that there was some eligibility the CFA would be caught with that.

PN471

MR MUELLER: Yes, but there is - - -

PN472

THE COMMISSIONER: And how they would be caught is another matter. Probably only morally.

PN473

MR MUELLER: But if the Commission were to do that it would be going further than it is entitled to do, because the Commission would be expressing an opinion or view - - -

PN474

THE COMMISSIONER: Well, let us do it this way then. There is a section 99 notification.

PN475

MR MUELLER: Yes.

PN476

THE COMMISSIONER: I have to make a dispute finding, and in coming to a view as to whether there is a dispute, I have to come to a view as to whether the UFU can have a dispute - - -

PN477

MR MUELLER: Yes.

PN478

THE COMMISSIONER: - - - about these sorts of matters with the CFA.

PN479

MR MUELLER: It - - -

PN480

THE COMMISSIONER: And I would be determining that issue then, and I would be acting in accordance with well stated powers of this Commission.

PN481

MR MUELLER: I think I would accept that that is the way the matter could be constituted, and that is the way that the Commission could come to address the issue.

PN482

THE COMMISSIONER: The issue of jurisdiction just wouldn't arise.

PN483

MR MUELLER: No, except - - -

PN484

THE COMMISSIONER: It would simply be an issue about - well, it arises in the context of whether or not - - -

PN485

MR MUELLER: A dispute - - -

PN486

THE COMMISSIONER: - - - there can be a dispute.

PN487

MR MUELLER: Yes.

PN488

THE COMMISSIONER: And it would be a binding decision, if that is what you wanted, subject to appeal of course.

PN489

MR MUELLER: But that is not the - - -

PN490

THE COMMISSIONER: Well, it is not the way it is currently.

PN491

MR MUELLER: - - - the manner in which it is put at the moment.

PN492

THE COMMISSIONER: But we avoid the jurisdictional issue that you are talking about by going down that track, and we get a resolution of the matters that are between you, and I don't know whether that is attractive to either side or not.

PN493

MR MUELLER: Well, I think it is a matter for the union.

PN494

THE COMMISSIONER: But anyhow, your position is that there is a fundamental jurisdictional issue, at least as regards direction - - -

PN495

MR MUELLER: Yes.

PN496

THE COMMISSIONER: - - - as to whether the Commission can issue a direction in the circumstances that we are dealing with, specifically part VIB.

PN497

MR MUELLER: Yes.

PN498

THE COMMISSIONER: Yes, and to that extent we should deal with that issue before we go to the question of the facts.

PN499

MR MUELLER: That is right. That is right, and it is quite discreet and could be done efficiently and early.

PN500

THE COMMISSIONER: Yes.

PN501

MR MUELLER: At least as early as the Commission could accommodate it.

PN502

THE COMMISSIONER: Mr Rozen, where does that discussion leave us now?

PN503

MR ROZEN: I will start at the end, because that is probably the most significant place to start. The end of the matters that the Commission has been discussing with my learned friend. We will need to get some instructions on that, but obviously - and there is no-one from the union here, unfortunately. But the more one examines this and the more I listen to what is being said against us is that all roads seem to lead to eligibility. It seems the way that - and it perplexes us at this end of the Bar table for my learned friend to refer to the transcript of the hearing before the Commission and say that, Mr Rozen said that it is the UFUs position that eligibility doesn't have to be determined.

PN504

I don't want to point score and play games here, but they have put eligibility in issue, as the Commission is well aware, from the start. Every time we have tried to advance this matter they have said, "No, no. Eligibility is the problem." So it is not a question of whether we want it to be an issue or not. In a sense it doesn't matter. As the Commission is well aware, if a party in a proceeding wants to make something an issue and lead evidence and make submissions about it, it is in issue. So we just don't understand this submission that they relied somehow on what appears in the transcript, at paragraph 201, to affect the way they prepared their case.

PN505

For two reasons: They put eligibility in issue, and secondly, if it wasn't apparent from even a cursory reading of the material that we filed last time, 16 April, all or almost all of that material goes to eligibility. Now that is the issue that we are having to deal with. We have been confronted with it, we are having to overcome it. So we don't understand that part. Coming to the last point that the Commission raised with my learned friend, all that is strictly before the Commission is a 99 dispute application dating back to last year. The role of - I am sorry, I shouldn't say that.

PN506

There is also the question of the extant bargaining periods, and they are separate matters within the meaning of section 170NA. They are the matters, we say, that attracts the operation of NA. But NA, as we read it and we might be wrong, NA doesn't seem to provide the basis for an application, in a sense, to the Commission. Ultimately not much might turn on this. NA seems to be an empowering provision which says that if the matter before the Commission falls within the description there, then that picks up other powers that one finds in Part VI, which would be there anyway for the dispute. So, in a sense, we are doubling up, I suppose. So - - -

PN507

THE COMMISSIONER: Well, I think, as a matter of practice, where there is a bargaining notice in existence and the parties want the assistance of the Commission they rely on that bargaining notice to invoke 170NA.

PN508

MR ROZEN: NA, yes.

PN509

THE COMMISSIONER: Whether that - - -

PN510

MR ROZEN: Yes. Well - - -

PN511

THE COMMISSIONER: The parties usually agreed about that process rather than disagree.

PN512

MR ROZEN: Yes. What happened here is there was a 99 set in train and - - -

PN513

THE COMMISSIONER: I suspect if someone wanted to come along and say, "Well, there is no basis for the Commission to exercise conciliation" they would lodge a section 99.

PN514

MR ROZEN: Maybe. That is right. I think that is - it was a cover the bases situation. We got the 99 in, and then we say, in any event, NA applies and gives the Commission certain powers.

PN515

THE COMMISSIONER: At least in Victoria, anyhow.

PN516

MR ROZEN: Yes, Commissioner. We will obviously need to get some instructions on whether that course, that is, having the matter resolved as a question of whether a dispute finding can be made, firstly, and if so, the findings the Act requires to be made in those circumstances would advance the position. As we understand it, the CFAs position, just so this is abundantly clear, the CFAs position has not changed. We understand their position always to have been, "You convince or you establish that you have eligibility, either by convincing us or some other method," such as a binding decision of this Commission, "and we will negotiate with you, and that is all we ultimately seek." So it may be that that can resolve the matter, at least procedurally.

PN517

THE COMMISSIONER: That might get you there in terms of a binding decision anyhow.

PN518

MR ROZEN: Yes.

PN519

THE COMMISSIONER: Because it may be that there is not the capacity to make a binding decision.

PN520

MR ROZEN: Well, that is obviously something that needs to be argued, and I don't think there is much point in foreshadowing the arguments about that today.

PN521

THE COMMISSIONER: No, no. But whether we want to argue it, when we can avoid it.

PN522

MR ROZEN: Yes. True, indeed. But we will need to get some instructions on that. There may be other dimensions to that approach that I haven't been able to think about - - -

PN523

THE COMMISSIONER: There may well be that we - no, either have I.

PN524

MR ROZEN: - - - and I would like the opportunity to do that, Commissioner. But putting that to one side, can I just deal with this issue of the separation out of the jurisdictional question and the eligibility question, because in my submission my learned friend hasn't dealt with that at all, and that remains, in our submission, a fundamental reason why acceding to the proposed directions the CFA has put up is not the appropriate course for the Commission to adopt. My learned friend said that there are points of distinction between the current proceedings and those that were before Commissioner Smith.

PN525

As we understand it, one of those points of distinction is said to be the eligibility issue, and there is no point, in our submission, the Commission addressing jurisdiction, if that is what it comes to, without the factual matrix, if I can adopt the Commission's expression, being fully before the Commission, particularly in relation to eligibility, as that seems to be the issue that is looming largest in this proceeding. Can I also say in relation to the jurisdiction question, Commissioner, that we say it has been determined by this Commission in Commissioner Smith's decision.

PN526

Now, I understand from my learned friend that it is the subject of an appeal. I didn't know that, but I accept that that is the case. But nonetheless, it stands, as we understand it. It is a recent decision. There must, in our submission, come a time where the issue doesn't need to be re-visited every time an application of this nature is before the Commission. After all, the Act makes it quite clear in section 110 and in section 98 that the Commission is to perform its functions as quickly as practicable, section 98, and section 110, as the Commission will well be aware, requires the Commission, where it is dealing with an industrial dispute, to act in such manner as it considers appropriate, carefully and quickly inquire into and investigate the industrial dispute.

PN527

At the end of the day this case is about the terms and conditions of employment of a significant number of employees of the CFA, and on the material that is presently before the Commission at least some of those people have expressed a very clear view to the CFA that they want the UFU to act as their negotiator in such negotiations as are going on, and in those circumstances my submission that there are very good reasons for this matter to be dealt with expeditiously, and I don't say this lightly. The concern at this end of the Bar table is that that view is not shared by the CFA. That the CFA wants to string this out for as long as they can, and they want to have their cake and eat it too.

PN528

They want to take every possible legal jurisdictional argument, and at the same time they want to continue to negotiate an agreement with the ASU and APESMA. Now, we say not only are they not bargaining in good faith, but they are not approaching these proceedings in the Commission in good faith either, and that is of great concern to us, and in our submission it should be of concern to the Commission. This matter has rolled along for too long already, and in our submission it should be brought to as speedy a conclusion as can be done, in conformity with the Act and the rights of, not only the parties, but all those who are affected by the dispute.

PN529

MR ROZEN: So whatever can be done to facilitate a speedy hearing of this matter in our submission should be done. That is all I intended to say by way of reply, Commissioner, unless there is anything that I haven't dealt with.

PN530

THE COMMISSIONER: Yes. Thanks, Mr Rozen. Mr Lockhart, could I have the diary please? I am not convinced that there is a basis for having a - sorry, there is obviously a basis - but a basis that I should accept that there should be a separate jurisdictional matter. I propose to issue the - subject to a complaint which I haven't heard today, and subject to a complaint which needs to be made that prejudice, significant prejudice would be suffered by the CFA, I propose to make a direction generally in the terms proposed by Mr Rozen. That is, that the CFA reply to the material by lunchtime on 16 May with outlines to be filed by Monday lunchtime, that being 19 May.

PN531

MR MUELLER: We do complain. We wouldn't have an adequate opportunity to have our material ready if those directions were made. We did proceed on the basis of, on the basis that I explained, namely, that the large question of eligibility would not be the subject of a hearing on 20 May. And I say that we were entitled to proceed on that basis, having regard to what was said, but, be that as it may, even the union's original directions as they were proposed gave us, I think, 14 days or more in which to respond to material which had been filed and served. Now, the most recent material was, I think, given to us on Friday last. That was another two statements in respect of another two categories of employees.

PN532

So we would ask the Commission to, subject to the Commission's diary of course, to fix the hearing a little further out to give us and the parties an opportunity to prepare and exchange their material.THE

PN533

COMMISSIONER: Mr Rozen.

PN534

MR ROZEN: I don't want to be difficult, but - - -

PN535

THE COMMISSIONER: I don't really know why the original dates I proposed weren't met, or indeed the original dates that everyone agreed to weren't met.

PN536

MR ROZEN: That is that we come back on 5 May rather than today?

PN537

THE COMMISSIONER: Yes.

PN538

MR ROZEN: I will have to accept some responsibility for that. We wrote to the CFA with our initial proposal on 24 April 2003. We did not receive a response to that until 2 May. I received a telephone call from Mr Mueller and of course at that point, the 5th of May which was the original date which had been proposed was bearing down on us and told Mr Mueller that I would be unavailable on the Monday, and I seem to recall that he also had a difficulty, but I will stand corrected if I am wrong about that. And then it was a few days later that we got the proposal back from then.

PN539

Can I just say this, Commissioner; they had had the bulk of our material since 16 April and I repeat what I said earlier, this question that somehow they relied on something I have said in response to a question from the Commission as to the role that eligibility might play on 20 May is a furphy. They well know - - -

PN540

THE COMMISSIONER: I understand that. That is one of - I have made. But there are the practical considerations.

PN541

MR ROZEN: I understand that.

PN542

THE COMMISSIONER: But they have got to have a reasonable time; whoever caused it, they have got to have a reasonable time to present their material.

PN543

MR ROZEN: Yes. I can't dispute that, Commissioner. Perhaps I could short-circuit this whole thing if we some indication from you, sir, as to what sort of time we would be looking at. If it just a matter of some extra days, a short time, then I don't think I can stand on ceremony about it.

PN544

THE COMMISSIONER: Well, it would be the following week. Exactly a week; 27 May. I can give you a couple of days in that week, depending on your own calendars, now.

PN545

MR ROZEN: 27 is all right with me.

PN546

THE COMMISSIONER: Yes, well, on that basis - - -

PN547

MR ROZEN: Could the Commission just excuse us? Are we off the record here?

PN548

THE COMMISSIONER: We will go - I was about to go off the record anyhow. Can we go off the record, please?

OFF THE RECORD

PN549

THE COMMISSIONER: Arising out of those discussions, the proceedings will adjourn until 10.15 on Tuesday, 27 May, and continuing if necessary on Wednesday, 28 May. Before I go to the issue of the directions in relation to the disposition of the matter, Mr Rozen, you intimated that there was a matter that you wanted to address.

PN550

MR ROZEN: Yes, thank you, Commissioner. It goes to what in another place might be described as the interlocutory position between the parties. As the Commission will recall, on the last occasion I raised a concern that the UFU doesn't want to end up in a position where any ultimate success it has before the Commission is rendered nugatory by the progress of negotiations in the meantime between the CFA on the one hand, the ASU and APESMA on the other.

PN551

Now, the state of the negotiations was variously described on the last occasion, as the Commissioner will recall, from being advanced to being somewhat less advanced. Precisely what the position is, the UFU does not fully appreciate, and it would seem that there disagreement amongst the parties, and that is not surprising given that it is a negotiation process. The UFU is concerned that, particularly now with another week being added to the timetable and the potential for there to be a reserved decision if we go to, if there are going to be detailed, particularly jurisdictional arguments, that its position be protected to the extent that it can be in the interim.

PN552

And clearly the UFUs interests in this matter have to be balanced against the interests of the other party including the CFA, the unions and the employees concerned. But it would be our submission if some form of undertaking not to advance the negotiations, at least pending 27 May, and the matter could then be revisited on that day, if we can't get some form of undertaking that negotiations are not to take place between now and the 27th, we seek a direction from the Commission, alternatively, a recommendation from the Commission, in terms similar to that made by Commissioner Smith in the matter of Census (No 1), 17 February 2003, print PR927827, a copy of which was handed up on the last occasion.

PN553

THE COMMISSIONER: Just bear with me while I have a look at that. Yes, at paragraph?

PN554

MR ROZEN: Paragraph 27 on page 6 of 6 of the print handed up on the last occasion. The Commissioner made a direction pursuant to section 111 - it says 111T, I think it should be 111(1)(t) that no further bargaining take place under division VIB of the Act until this matter is resolved. And that is the type of direction/alternative recommendation that we seek from the Commission now.

PN555

THE COMMISSIONER: The bargaining in that case was taking place directly with the employees, was it?

PN556

MR ROZEN: Yes, it was.

PN557

THE COMMISSIONER: Yes, a bargaining committee.

PN558

MR ROZEN: It was in circumstances where it appears that there was evidence - actually I am not sure what the evidence was that was before the Commission at this point in time but the Commission had merely decided in accordance, it seems, with a request from the parties, that it determine whether or not there is a duty to bargain in good faith under the Act. And having decided that there was, to preserve the subject matter of the application, it made the direction in the terms stated in paragraph 27.

PN559

THE COMMISSIONER: My reason for asking that is that - see there is a couple of parties that are not here - were specifically - not sought intervention rights on the last occasion.

PN560

MR ROZEN: Got scared off last time, perhaps.

PN561

THE COMMISSIONER: I don't know about scared off, at that stage, I think I gave an undertaking that - - -

PN562

MR ROZEN: They could renew their application.

PN563

THE COMMISSIONER: They could renew their application.

PN564

MR ROZEN: Yes, I would have to concede their interests are affected by the direction we seek.

PN565

THE COMMISSIONER: That is right, that is the - - -

PN566

MR ROZEN: Raises a difficulty, I accept that.

PN567

THE COMMISSIONER: The difficulty - I can actually relist the matter briefly to deal with this application at a time when they can have an opportunity to be in attendance I think. It would be for the CFA to - no, the Commission will notify them but I think to - - -

PN568

MR ROZEN: Nothing seems to be brief in this case but - - -

PN569

THE COMMISSIONER: Yes. Look, it might be a question of establishing just how seriously advanced the negotiations are because you did indicate - I think I am not being unfair in talking about what was said off record - that you could be satisfied with something less if there was - if you could be satisfied those you are representing were not going to be - - -

PN570

MR ROZEN: We are all ears.

PN571

THE COMMISSIONER: Yes. Mr Mueller, I don't need to hear you on the - at this stage on the issue of whether or not a direction of this sort should be issued. It would settle - it might settle the other matter for you.

PN572

MR MUELLER: Yes.

PN573

THE COMMISSIONER: But how advanced are the negotiations?

PN574

MR MUELLER: They are not very advanced on my instructions. We have only had one meeting with one of the parties which was APESMA since we rejected the assertion of coverage - of the principal officer handling the negotiations for the ASU - is incapacitated at the moment and we are not able to appoint a meeting to advance negotiations with both parties and on the instructions that I have there is not going to be some giant leap forward between now and the 27th. Now they are the instructions I have.

PN575

THE COMMISSIONER: Do you expect any negotiations with the ASU before the 27th.

PN576

MR MUELLER: I expect that there will be a meeting if the officer concerned becomes available but I don't expect that arising out of that meeting any agreement will be concluded./

PN577

THE COMMISSIONER: Because as I apprehend it APESMA is less than a problem because I think there is a clear demarcation - - -

PN578

MR WOODS: Yes.

PN579

THE COMMISSIONER: - - - between APESMA and the UFU that - - -

PN580

MR MUELLER: As I understand it there are discussions on a couple of large and important issues in the negotiation - had not even taken place yet.

PN581

THE COMMISSIONER: Like money?

PN582

MR MUELLER: So in the real world it is very unlikely that the UFU is going to be prejudiced. Now, I know my friend is at a disadvantage, can't test that but that is the thrust of my instructions. And, of course, we are conscious of the fact that this proceeding is here in the Commission and, you know, we can't - - -

PN583

THE COMMISSIONER: I think you would be also conscious the UFU has a significant membership amongst the employees of the CFA, probably a greater membership than any other.

PN584

MR MUELLER: That might be another factor that operates on our mind.

PN585

THE COMMISSIONER: The fact that they are elsewhere is - - -

PN586

MR MUELLER: Elsewhere, yes.

PN587

THE COMMISSIONER: Maybe not as big as any other but certainly up there with them and that is in terms of the people about whom there is no dispute - - -

PN588

MR MUELLER: Yes.

PN589

THE COMMISSIONER: - - - in respect of coverage.

PN590

MR MUELLER: So I think that the idea of prejudice is - it is hypothetical rather than real.

PN591

THE COMMISSIONER: Yes, I understand that submission. Mr Rozen, does it - - -

PN592

MR ROZEN: I am glad you do, Commissioner.

PN593

THE COMMISSIONER: - - - satisfy you if - well, back to practical things. People do keep their ears to the ground. I suspect that those instructing you - that is those instructing your instructor probably know more about what is going on in terms of negotiations between the CFA and the ASU and APESMA than Mr Mueller does. And would it satisfy you if I indicated that I would be prepared to list the matter at short notice should there be a problem?

PN594

MR ROZEN: Well, Commissioner, our position is that we don't, particularly in light of what is said, understand why there needs to be negotiation meetings between now and 27 May which is two weeks away and that is our principal position. The Commissioner is asking us to accommodate them and - - -

PN595

THE COMMISSIONER: No, no, I am just wondering where the prejudice rises.

PN596

MR ROZEN: Well, there is the rub really, we - - -

PN597

THE COMMISSIONER: Well, if the shoe was on the other foot the UFU would be very quick to complain that discussions were not taking place when they should have been, even if it was only to settle the title of the agreement.

PN598

MR ROZEN: It is probably hard for me to take issue with that proposition, Commissioner.

PN599

THE COMMISSIONER: No, no, I am not asking you to, I am just indicating, from my knowledge of how these things go - I mean, I am on the panel, I deal with them and I deal with the ASU in the local Government area and local authorities so - - -

PN600

MR ROZEN: Look, we have said our peace and we are in the hands of the Commission on the matter. We would appreciate the offer that was made in terms of speedy listing and we would ask that - and I am not sure what the position is as between the parties, but we would ask to continue to be informed. That runs, does it - - -

PN601

MR MUELLER: Yes.

PN602

THE COMMISSIONER: Yes, I think that should there be any significant change from your description of the circumstances, Mr Mueller, you will advise the other side?

PN603

MR MUELLER: Yes.

PN604

MR ROZEN: We would also just like to be told when there are meetings coming up.

PN605

MR MUELLER: We can do that as well.

PN606

MR ROZEN: Yes.

PN607

THE COMMISSIONER: Very well. Well, that, I think, deals with that matter and can I now go to the directions. The CFA is to file in the Commission and serve on the UFU the material it seeks to rely on other than its outline of argument by close of business on 22 May. Both parties are to file in the Commission and serve on each other their outlines of argument by midday on 26 May. And as I have already indicated the proceedings will adjourn until 10.15 on 27 May and presenting on the 28th if necessary.

PN608

Service should be effected by - I know that the UFU has already done it by way of facsimile, but service should wherever possible, be effected by e-mail and I appreciate that that can be difficult with copies of documents but if at least, as much can be done by e-mail, is done by e-mail or by facsimile or by delivery and - sorry, I said service. Filing should be effected, wherever possible by e-mail, and if not possible, by facsimile or hand delivery. It may - and service on the other side may be effected by e-mail or facsimile or hand delivery.

PN609

MR MUELLER: May I just mention one matter - - -

PN610

THE COMMISSIONER: Mr Mueller?

PN611

MR MUELLER: - - - just so I put it on the record. We would appreciate an indication, at least during the course of next week, as to whether the direction or recommendation being sought, is sought under the section 99 notification or under section 170NA or both.

PN612

THE COMMISSIONER: Could I put it another way that you would - it would - you would be seeking advice by next week of any change in approach from the other side? Change in the approach that has already been identified by them?

PN613

MR MUELLER: Yes, well, actually I want more than that. I am just conscious that if we get the outline on Monday we will be drawing our outline at the same time and we won't know whether the direction is sought. I know there is the industrial dispute question - - -

PN614

MR ROZEN: I can come through this.

PN615

MR MUELLER: Yes.

PN616

MR ROZEN: We will give Mr Mueller what Mr Mueller asked for, that is, we will make it quite clear and we will send a copy to the Commission what it is that we seek and on what basis by close of business on 16 May.

PN617

MR MUELLER: That would be very helpful.

PN618

THE COMMISSIONER: Okay, well, on that basis, if there is nothing further proceedings are adjourned until 10.15 on 27 May.

PN619

MR ROZEN: Thank you, Commissioner.

ADJOURNED UNTIL TUESDAY, 27 MAY 2003 [3.49pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 COPY OF PROPOSED SET OF DIRECTIONS PN337