C2003/5391, Transcript of Proceedings [2003] AIRCTrans 4274 (29 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4643
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/5391

APPLICATION FOR EMPLOYMENT
TERMINATION ORDERS

Application under section 170FB of the Act
by The Australian Workers' Union and Others
for orders under Part VIA, Subdivision D of
the Act

MELBOURNE

10.55 AM, WEDNESDAY, 10 SEPTEMBER 2003

THE FOLLOWING MATTER WAS HEARD VIA VIDEO LINK
AND RECORDED IN MELBOURNE

PN1

MR N. RUDD: I appear for The Australian Workers' Union and with me I have MR C. HEATH and MR N. CARTER.

PN2

MS J. BAULCH: I appear on behalf of APESMA.

PN3

MR V. ROGERS: I seek leave to appear on behalf of Multinet Gas (DB No. 1) Pty Limited, Multinet Gas (DB No. 2) Pty Limited as well as Alinta Network Services Pty Limited. With me is also MS N. THOMAS and MR A. NOONAN in Perth.

PN4

THE COMMISSIONER: Thank you. Is there any objection to Mr Rogers' appearance by leave?

PN5

MR RUDD: Yes, there is, Commissioner. It is my understanding that Mr Rogers is attempting to appear on behalf of Multinet Gas. The question that I put to my friend before the proceedings was has he actually got instructions from Multinet Gas to appear on their behalf. If that is not the case, we would say that would be a serious concern that a fellow practitioner is attempting to appear on behalf of a client without actually having written instructions on behalf of that client, so we would object, Commissioner.

PN6

THE COMMISSIONER: Is that objection apt in the circumstances, Mr Rudd? What is your situation? Are you employed by the AWU?

PN7

MR RUDD: Yes, I am.

PN8

THE COMMISSIONER: And the nature of the application for leave is an application for those two parties to be represented by counsel. Now, what I understand you to say is that in relation to Multinet, I ought to question whether or not there are instructions to appear or to seek leave to appear on behalf of Multinet?

PN9

MR RUDD: Yes, that is correct, Commissioner.

PN10

THE COMMISSIONER: All right. Well, that is a different question as to whether or not, if those instructions exist, Multinet ought be granted leave to be represented by counsel, is it not?

PN11

MR RUDD: If they have given those instructions, yes, Commissioner.

PN12

THE COMMISSIONER: That is a different question. Could you just address that question to save us going around and around? If the instructions are extant, is there an objection to Multinet or Alinta in those various manifestations, that is the person that has got several - well, there are several Alinta personalities, are there?

PN13

MR ROGERS: There are a number of different Alinta entities, but Alinta Network Services - - -

PN14

THE COMMISSIONER: Yes, all right. Well, let us assume that there is a group of Alinta personalities for want of a better description and there is a Multinet personality. In each case, if instructions are extant, the question which arises is whether or not those persons ought to be permitted to be represented by counsel in the proceedings by leave, so can we just go to that question now?

PN15

MR RUDD: Yes, Commissioner, if permission was given, there is no objection on that basis.

PN16

THE COMMISSIONER: Very well. Do you have instructions to seek leave to appear on behalf of Multinet?

PN17

MR ROGERS: Commissioner, I have instructions from Mr Noonan from Alinta Network Services and that company has since 24 July of this year been appointed to act as agent for Multinet, including the two Multinet companies which are identified, so I do have those instructions via Mr Noonan to appear on behalf of the two Multinet entities.

PN18

THE COMMISSIONER: The question of the status of those instructions may, I don't know, depend upon the nature of the agency.

PN19

MR ROGERS: It might assist if I elaborate in terms of some of the changes that have occurred within the various entities. United Energy Limited up until 24 July or thereabouts was a publicly listed company. It had a variety of different investing shareholders, one of which was a US company called Aquilla.

PN20

THE COMMISSIONER: Sorry?

PN21

MR ROGERS: Aquilla, A-q-u-i-l-l-a. Aquilla made a decision late last year, early this year, to exit its various investments in Australia which then resulted in quite a complex scheme of arrangement being entered into affecting United Energy and the various businesses which it was involved with. The upshot of all that was that Alinta Limited acquired or increased its stakeholding in United Energy Limited and a result of the restructuring is that Alinta Network Services - - -

PN22

THE COMMISSIONER: Mr Noonan, I can't hear your counsel while you are making mobile phone calls. Would you please be kind enough to turn your mobile phone off?

PN23

MR NOONAN: Sorry, Commissioner, it was somebody indicating that you may not have received some documents, but I think I have sorted it out. My apologies for that.

PN24

THE COMMISSIONER: Very well. Thank you. Yes, sorry, now, Alinta increased its stakeholding in UE.

PN25

MR ROGERS: That is correct, and then at the same time, Alinta Network Services Pty Limited, a wholly owned subsidiary of Alinta Limited, was appointed to act as agent for various entities, including the two Multinet Gas entities which are named as respondents to this application and that took effect as from 24 July this year.

PN26

THE COMMISSIONER: Do you have the appointment?

PN27

MR ROGERS: The actual agreement itself?

PN28

THE COMMISSIONER: The appointment, yes, the nature of the agency.

PN29

MR ROGERS: There is a whole variety of different agreements that have been entered into, implementing the scheme, one of which is a services agreement that exists which exists as well and copies can be provided to the Commission, but ever since 24 July, Alinta Network Services has been managing various United Energy businesses as well as Multinet. Multinet itself is the largest distributor of natural gas in Victoria and it owns the assets associated with that distribution network.

PN30

Since approximately 2000 or thereabouts, that network has in fact been managed by United Energy Limited, whilst the employees remain employees within the Multinet entities pursuant to a certified agreement. What has changed is that United Energy has ceased to be the manager of that network and now it is Alinta Network Services Pty Limited and it is in that capacity that we have been asked to appear both in relation to Alinta Network Services as well as the two Multinet entities.

PN31

THE COMMISSIONER: Well, am I right, do you think, in assuming that the extent to which you have instructions from Multinet is by virtue of the agency agreement?

PN32

MR ROGERS: The services agreement, that is right.

PN33

THE COMMISSIONER: Is it possible to obtain a copy of that agreement?

PN34

MR ROGERS: Yes.

PN35

THE COMMISSIONER: Not right now, necessarily. All right, so that could be tendered in the proceedings?

PN36

MR ROGERS: Yes.

PN37

THE COMMISSIONER: And you say that a proper construction of the terms of that agreement ensures that Alinta has appropriate legal competence to issue instructions for the conduct of these proceedings on behalf of Multinet?

PN38

MR ROGERS: That is correct.

PN39

THE COMMISSIONER: All right. Thank you. Mr Rudd, what do you have to say about that?

PN40

MR RUDD: Yes, Commissioner, whilst I do appreciate that the dealings that have transpired are complex, we still do press our position that our understanding is that presently there is still a company known as Multinet, if I can call it Multinet and where we have employees of Multinet. The main issue has been that we have had lack of consultation with that company, Multinet, and we still press our objection that that company, if it was seeking to be represented in these proceedings, should have done that as that company instructed my friend as that company, as their client.

PN41

THE COMMISSIONER: Yes, you have told me what your preference is and the one which you prefer the proceedings to go forward, but you haven't responded to the proposition that Alinta has a legal competence to instruct counsel on behalf of Multinet and for the purposes of these proceedings in particular.

PN42

MR RUDD: Commissioner, it was put to you before that there was a servicing arrangement in place. We haven't seen any servicing arrangement that would give that authority. As I have said, we would still press our objection for the appearance of my friend to appear on behalf of Multinet.

PN43

THE COMMISSIONER: Well, I think we probably need to start getting fairly forensically precise about what is going on, so I think the way I will treat the objection is an objection to the application for a grant of leave on behalf of Multinet being heard until the Commission can be further satisfied that the agency agreement allows Alinta to act on behalf of Multinet in relation to the proceedings. Is that a fair summary of the nature of the objection?

PN44

MR RUDD: I think given the circumstances, yes, Commissioner.

PN45

THE COMMISSIONER: All right. Could I just ask you something, Mr Rudd? Would you be saying anything about this application - I beg your pardon, not Mr Rudd, Mr Rogers. Would you be saying anything about these proceedings and the application either as to jurisdiction or merit which would differ on behalf of Alinta and Multinet, or would you be saying only the same things?

PN46

MR ROGERS: Essentially the same things. Commissioner, I do - - -

PN47

THE COMMISSIONER: Sorry, if you would just bear with me for a moment. Then it would seem to me that Multinet's interests would not be prejudiced for the purposes of my hearing the application if I reserved my decision as to whether or not Multinet should be granted leave to be represented by counsel. Do you accept that?

PN48

MR ROGERS: Yes, I do.

PN49

THE COMMISSIONER: I will reserve that issue and I understand that there is no objection to leave being granted to Alinta to be represented by counsel in the proceedings and I grant leave accordingly.

PN50

MR ROGERS: Thank you, Commissioner. Commissioner, there is one matter I wish to deal with and that is that the matter be adjourned. I understand Mr Noonan has sent a facsimile through to you on Monday evening. The matter is complicated and it is further made difficult by the fact that Mr Noonan is sitting in Perth and it certainly hasn't given us ample time in terms of preparation for the hearing. As elaborated by Mr Noonan in his facsimile, the simple fact is that there hasn't been any decision made to terminate anyone's employment at this point in time and certainly no decision is imminent in relation to any of those employees.

PN51

THE COMMISSIONER: And your understanding is that that is the situation insofar as Multinet is concerned and Alinta?

PN52

MR ROGERS: That is correct. Commissioner, in relation to what is proposed and this has been raised in discussions that Mr Noonan has had with representatives of the AWU and also subsequently with APESMA that Alinta Network Services Pty Limited is intending to make offers of employment to the relevant employees within Multinet. That is something that is going to occur over forthcoming months.

PN53

It is not something which is appearing at this point in time and that there is certainly no decision at this point in time to terminate anyone's employment within the Multinet businesses and nor has it terminated anyone's employment within the Multinet businesses, so in relation to our request for an adjournment, we certainly raise that as being a further factor to say it is appropriate that the matter should be adjourned and we can certainly seek instructions in relation to any undertaking not to terminate anyone prior to the matter coming back on before the Commission.

PN54

THE COMMISSIONER: Thank you. Mr Rudd, what do you say to this application for an adjournment?

PN55

MR RUDD: Commissioner, we would oppose that application for an adjournment. It is our understanding, by way of a brief background, that Alinta Network Services now has control of the other contracts to maintain and operate the pipelines of gas within Victoria. The contract was previously held by Multinet. On 8 August the AWU received a facsimile communication from Mr Tony Noonan. If I could tender a copy of that document at this point in time.

EXHIBIT #AWU1 FACSIMILE COMMUNICATION FROM MR NOONAN DATED 08/08/2003

PN56

MR RUDD: Commissioner, we say that that letter is clear in its intent about what has already occurred and what is going to occur within the operations of Multinet, that being - it can already be seen at paragraph 3 of the document where it states that - I will quote from it:

PN57

It is anticipated that the number of redundant positions could be as high as 50 over time, but at the time of writing, only a dozen or so have been clearly identified.

PN58

Commissioner, that was on 8 August.

PN59

THE COMMISSIONER: Did I mark that AWU1?

PN60

MR RUDD: Yes, Commissioner. Subsequent to that facsimile of 8 August, Mr Heath of the union met with Mr Noonan from - - -

PN61

THE COMMISSIONER: 11 August, isn't it?

PN62

MR RUDD: 8 August.

PN63

THE COMMISSIONER: I beg your pardon, yes.

PN64

MR RUDD: Commissioner, Mr Heath of the union met with Mr Noonan on it is my understanding 27 August concerning the matters pertinent to this application. At that particular time, Mr Heath was informed that it would be the situation that, yes, Alinta would be seeking to offer positions in a new company, to take those employees away from Multinet and the position was from the union's point of view and the question was put to Mr Noonan what would happen to those employees who chose not to?

PN65

He couldn't answer that at that particular time. I think it is clear based on the letter that you have in front of you and the discussions, whilst this is a submission, it would be a question of evidence we would concede that there has been a definite decision made to terminate the employment of employees with Multinet. Given those circumstances, Commissioner, we believe that this is a matter that should not be adjourned at this point in time.

PN66

THE COMMISSIONER: Well, what would we do in that case, if it wasn't adjourned?

PN67

MR RUDD: If it wasn't adjourned?

PN68

THE COMMISSIONER: Yes, what do you propose to do?

PN69

MR RUDD: Commissioner, we were of the view that we would press our application today in terms of the evidence - - -

PN70

THE COMMISSIONER: For an order?

PN71

MR RUDD: For an order, yes, that is correct.

PN72

THE COMMISSIONER: Against whom?

PN73

MR RUDD: I am sorry, Commissioner?

PN74

THE COMMISSIONER: Against whom?

PN75

MR RUDD: In the application, Multinet.

PN76

THE COMMISSIONER: Multinet on the basis of the objection that you have made are not being heard at the present time.

PN77

MR RUDD: I understand that, Commissioner. This is the problem that we have is that the employer is Multinet and yet we are told that - - -

PN78

THE COMMISSIONER: But I think you need to focus your comments on the procedural aspects of the matter, not your preference that you have some sort of engagement with Multinet. I understand what you have told me about that already. There is no need to repeat it. The issue, the procedural issue is somewhat significant. You have objected to Multinet being granted leave to be represented by counsel. There is no-one else here from Multinet, except Mr Rogers, who is applying for leave. Multinet aren't here at the moment.

PN79

MR RUDD: I appreciate that, Commissioner. What we would say is that we have in previous discussions that Mr Heath has had with the representative of Alinta who, from one sense is representing Multinet, we have sought to directly speak to someone from Multinet. The application was served on Multinet. They were aware that this application was on today and the difficulty or the problem that we have had is that we are seeking specifics from Multinet and the people who are alleging to act on behalf of Multinet are not giving us the information that we require. Henceforth, we have made the application for employment termination orders against Multinet.

PN80

THE COMMISSIONER: I understand that. Why do you think I raised this issue?

PN81

MR RUDD: I understand the procedural aspects that - - -

PN82

THE COMMISSIONER: Could you just explain to me what your perception is of why I raised this issue?

PN83

MR RUDD: That the respondent in these matters hasn't had an opportunity to make its case.

PN84

THE COMMISSIONER: There are some not insignificant principles about natural justice that apply to the issuance of an order by the Commission, are there not, and if the purpose of your application this morning is to seek an order and you are objecting to someone who I have no reason to doubt has been instructed by virtue of some agency agreement, appearing and speaking on behalf of Multinet, until such time as we investigate the terms of the agency agreement, don't I have to settle that first before I can contemplate the making of an order? Otherwise, wouldn't I be denying, potentially at least denying Multinet natural justice in terms of an opportunity to be heard in this matter?

PN85

MR RUDD: Yes, we would concede that, Commissioner, in hindsight.

PN86

THE COMMISSIONER: That is a relevant consideration in terms of the application for the adjournment, is it not?

PN87

MR RUDD: In those circumstances, Commissioner, I would agree with that, but if I can put it this way. Our position was that we did try and serve this on Multinet and try and get someone from Multinet - - -

PN88

THE COMMISSIONER: Yes, but, you see, Mr Rudd, what I think we are having difficulty with is that I understand your preference as to the way in which Multinet should be represented and should engage with the union, but my problems are different to yours and I am the party who you are asking to make an order and so I have to concern myself with my problems primarily in relation to the appropriateness of contemplating such an order in the absence of the party against whom the order is directed.

PN89

MR RUDD: If I could have one moment, Commissioner. Given those circumstances, Commissioner, there was an undertaking, I think, that my friend would supply that servicing agreement. In those circumstances, we would not object to leave being granted then for Multinet.

PN90

THE COMMISSIONER: You are changing your mind now about the objection?

PN91

MR RUDD: Yes, Commissioner.

PN92

THE COMMISSIONER: So you are withdrawing the objection?

PN93

MR RUDD: Yes, we are now, Commissioner.

PN94

THE COMMISSIONER: Well, leave is granted, Mr Rogers.

PN95

MR ROGERS: Thank you, Commissioner. Commissioner, there are just a couple of issues I just want to raise in response. One is in reference to the document that was tendered, AWU1. That facsimile is in relation to a fax sent by Alinta Network Services Pty Limited to the Commonwealth Employment Services and to four unions, only two of which are here today and it relates not only to the Multinet business, but also the broader business within United Energy and where in the third paragraph it refers to:

PN96

Number of redundant positions could be as high as 50.

PN97

That is a reference in relation to the entirety of United Energy's businesses that it both was responsible for as well as for the Multinet business of United Energy as well and the dozen or so that have been clearly identified, I can advise I have been instructed that all of them were United Energy employees and were at senior levels of management within the organisation and I reiterate that there is certainly no intention at this point to proceed to terminate anyone's employment within the Multinet businesses at this point in time and there is none imminent.

PN98

THE COMMISSIONER: Yes, well, I suppose what is being put to me is that there is prima facie evidence of an intention to do so, if not an intention, then a decision has been made that in due course that will occur and you are denying that. It seems to me that probably this is an issue of fact, possibly a mixed issue of fact and law, but primarily an issue of fact and that is what is the state of affairs in Multinet insofar as decision-making is concerned on this subject and it is perhaps complicated by the fact that Alinta may well have within its power the delegated legal authority to terminate the employment of the employees who exhibit AWU1 contemplates might be involved in making ANS the employment vehicle for most of the previous employees of Multinet.

PN99

Now, the applicant probably carries the onus in that respect, although that it not a conclusion, it is just an observation. I don't know what the nature of any particular onus might be in an application of this kind, so I don't want anybody to assume that it is not arguable, but let us proceed on the basis that the applicant ought to be given a reasonable opportunity to establish beyond the prima facie indication and intention and to establish a decision for the purposes of the operation of the section. That involves some form of discovery on their part, does it not, some opportunity of discovery on their part? Alternatively, you produce the evidence to establish the assertion that no decision has been made and expose it to interrogation.

PN100

MR ROGERS: What I would suggest is that maybe I can try and obtain instructions from my client.

PN101

THE COMMISSIONER: All right. Well, I am just really musing on the way in which the proceedings might go forward from this, rather than me tossing a coin on the basis of the assertions from the bar table.

PN102

MR ROGERS: There was the issue which I proffered before in terms of I would have to get instructions as to whether it is possible to obtain an undertaking which was also something which Mr Rudd had also raised.

PN103

THE COMMISSIONER: Yes, well, it will certainly give me greater comfort if an undertaking to the Commission could be given.

PN104

MR ROGERS: Yes. If I could maybe ask for a short adjournment to try and speak to Mr Noonan.

PN105

THE COMMISSIONER: All right. The undertaking I have in mind is that no action to terminate the employment of any of the employees who are members of the unions or eligible to be members of the unions which are identified in A1 would be taken prior to an opportunity being afforded to those organisations or more particularly to the AWU to have this application relisted.

PN106

MR ROGERS: What I would propose is that - like, the application which has been lodged by the AWU relates to the Multinet businesses.

PN107

THE COMMISSIONER: Yes.

PN108

MR ROGERS: And I would propose that the undertaking would be that in relation to any employees within those businesses, that there would certainly be no intention to terminate any of that employment.

PN109

THE COMMISSIONER: Yes, well, not so much an intention, no action, no action to effect the termination of any of those employees prior to the AWU having an opportunity to have this application considered.

PN110

MR ROGERS: Yes.

PN111

THE COMMISSIONER: And it may not necessarily take that form in the language of the undertaking. In fact, it may be preferable to Multinet if the language related to its own circumstances and that, for example, first it would not take any action to effect the termination of an employee without a decision being taken to do so, (2) if a decision is taken to do so, no action will be taken to effect the termination prior to discussions with the relevant unions and, (3) no action would be taken to effect the decision without an opportunity for the unions to have the matter re-listed for consideration by the Commission.

PN112

Now, whether that is the form or whether it be some other form I don't think is material, provided the undertaking met the essence of those requirements in substance, then I would feel much more comfortable about adjourning the proceedings and my reasons for this are that the nature of these orders or the utility of them is very much conditioned by their timeliness and that the section has no real statutory purpose except to intervene in the temporal process that leads to the termination of employees on grounds of redundancy. Mr Rudd, are you happy to have a brief adjournment while that matter is considered?

PN113

MR RUDD: Yes, Commissioner.

PN114

THE COMMISSIONER: Very well, let us take 15 minutes.

SHORT ADJOURNMENT [11.27am]

RESUMED [12.05pm]

PN115

THE COMMISSIONER: Yes, Mr Rogers.

PN116

MR ROGERS: Thank you, Commissioner, for giving me an opportunity to obtain instructions from our client and we have also had the opportunity to have some discussions with the union representatives here this morning. What I can say is that we can offer a general undertaking in the following terms, that Alinta Network Services Pty Limited undertakes that as agent for Multinet Gas (DB No. 1) Pty Limited and Multinet Gas (DB No. 2) Pty Limited will not make any decision to terminate the employment of the employees whose employment is regulated by the Energy Gas Industry Award 1999 and the Multinet/United Energy (Gas) Enterprise Agreement 2001 without first notifying and consulting with the Australian Workers' Union and the Association for Professional Engineers, Scientists and Managers on measures to be taken to avert or minimise the terminations and measures to mitigate the adverse effect of any termination on the employees concerned and that is a general undertaking my client is prepared to provide. Now, in discussions with the union, that in itself is insufficient and - - -

PN117

THE COMMISSIONER: But you give that undertaking to the Commission.

PN118

MR ROGERS: We give that undertaking as a general undertaking. It is not until the next hearing.

PN119

THE COMMISSIONER: Yes, well, I take it you are giving it to the Commission.

PN120

MR ROGERS: Yes, that is right.

PN121

THE COMMISSIONER: And I note that.

PN122

MR ROGERS: And I understand that the unions may want to pursue the matter.

PN123

THE COMMISSIONER: Thank you. Mr Rudd.

PN124

MR RUDD: Thank you, Commissioner. Whilst we believe that is a good move in these proceedings, the difficulty that we have is the situation is such that we are of the view that Alinta will be offering job offers to employees of Multinet. There is a question of transmission of business. It has been indicated to us that the agreement and the award that currently exists may not apply to those positions that they are offering to the existing employees. In other words, there won't be a transmission of business of the current agreement and award. That is what has been put to us.

PN125

Given that situation, employees could be faced with the possibility that they are asked to apply for a position and if they choose not to accept such a job offer, they may be faced with a situation but that they would have no alternative but to resign from their current position, given that earlier submissions were to the effect that the contract that Multinet previously had is now owned by Alinta, or Alinta Network Services Pty Limited. In that situation, what we would respectfully seek from the Commission is a recommendation that they not go ahead with offering the alternative positions to those employees of Multinet.

PN126

THE COMMISSIONER: What is the procedural and jurisdictional vehicle for that recommendation?

PN127

MR RUDD: Commissioner, my reading of section 170FD powers and procedures of the Commission for dealing with applications in essence allows the Commission to treat the application, if the application - - -

PN128

THE COMMISSIONER: FD?

PN129

MR RUDD: Yes, Commissioner, section 170FD, subdivision D.

PN130

THE COMMISSIONER: I see, so what you say is that the powers provided by section 111 of the Act can be exercised.

PN131

MR RUDD: Yes, Commissioner, that is correct. In those circumstances, that would be our submission and given that we still are pressing our application, we would respectfully seek that that recommendation be given in addition to the directions for the substantive matters of the application before you are to be determined.

PN132

THE COMMISSIONER: Look, if I am going to issue anything, I would rather have it produced and submitted to me in writing. I don't think it is appropriate to consider the making of recommendations or directions without some clear expression of what is being sought.

PN133

MR RUDD: We could make that undertaking to provide that today, Commissioner.

PN134

THE COMMISSIONER: I suppose where we are up to, however, is that an adjournment is sought on the basis of the undertaking that has been given. You have actually interposed another initiative now. I mean, the discussion that was taking place prior to the adjournment was on an application made on behalf of Alinta and Multinet that the proceedings be adjourned and the Commission made the observation that if there was to be an adjournment, the Commission would feel more comfortable if there was some undertaking in relation to the application offered to the Commission by the applicant for the adjournment.

PN135

Now, you have interposed another initiative and I assume it is inferred that the proceedings shouldn't be adjourned so that the proposal for some recommendation or directions can be considered. Is that right?

PN136

MR RUDD: Commissioner, if I can clarify some aspects that have transpired this morning. There was a short adjournment before when we were hoping to reach an agreement on undertakings by the respondent in this matter and on that basis, there could have been an adjournment of these proceedings. However, we weren't comfortable with what undertakings that we were given for the reasons about the job offers which I outlined before, so what I am respectfully saying, Commissioner, is that in those circumstances we firstly do appreciate that they may not have had the opportunity to bring evidence today and we respect that, but given the situation, or the submissions that we have made, yes, we would be seeking recommendations in accordance with section 111 and for us to have a direction set today for a hearing of the application which is currently before you. By that, I mean that there would be timetabling of the matter such that either side would be able to file any appropriate evidence.

PN137

THE COMMISSIONER: Well, I am not terribly clear. I think you are still probably dealing with two matters at the same time. One is the application for an order under section 170FB which is an order as to consultation, is it not?

PN138

MR RUDD: Yes, that is correct, Commissioner.

PN139

THE COMMISSIONER: And in addition to that, you are seeking other relief.

PN140

MR RUDD: What I am saying, Commissioner, is that what section 170FD, powers and procedures of the Commission for dealing with applications concerns - concerns applications which are currently before you now, which is the application - - -

PN141

THE COMMISSIONER: Yes, I am clear on that. I accept that subject to any argument that it appears that there is a vehicle for the purpose of making a recommendation or issuing directions, the application can be treated and dealt with in accordance with the powers conferred on the Commission under section 111 with certain exceptions noted in the section you rely on. That is not the issue. What I am saying to you is you have got two issues before me. One is whether or not I should make an order concerning consultation.

PN142

You have got another issue which is about other remedies and relief in relation to the application, but I am not totally convinced yet that the subject matter of what you are addressing as opposed to the consultation requirements that you seek, which are dealt with to some degree by the undertaking are the same thing. You see, I am not quite clear on this complex scenario that you have alluded to. Let us just put the consultation to one side. You just need to explain to me a little bit more about this situation.

PN143

MR RUDD: Commissioner, the application for the employment termination orders, the way we see it - - -

PN144

THE COMMISSIONER: Yes, well, I am saying let us put those to one side.

PN145

MR RUDD: Commissioner, if I can clarify one aspect. Does the undertaking of the respondent in this matter preclude ANS from making those offers to the Multinet employees?

PN146

MR ROGERS: The undertaking, as I said, is talking about not making any decision to terminate the employment of the employees whose employment is regulated by the award and the agreement without first notifying and consulting with the AWU and APESMA, so that is what it extends to. There is nothing in the undertaking itself which addresses offers being made by Alinta Network Services Pty Limited.

PN147

THE COMMISSIONER: I wouldn't have thought the undertaking extends to the prevention of offers of employment by a particular entity. Is that right?

PN148

MR ROGERS: Sorry, it doesn't.

PN149

THE COMMISSIONER: It doesn't?

PN150

MR ROGERS: We would certainly say it doesn't.

PN151

THE COMMISSIONER: Yes, that is what I thought. My construction of it is that it only relates to the termination of the employment of employees, not people making offers of employment to them. What is the nature of the recommendation, without being specific about its terms, that you are seeking, Mr Rudd?

PN152

MR RUDD: Commissioner, the nature of the recommendation is that ANS Pty Limited not offer positions to employees of Multinet. Essentially that is what we are saying.

PN153

THE COMMISSIONER: A straightforward recommendation they simply not do this?

PN154

MR RUDD: Exactly, Commissioner.

PN155

THE COMMISSIONER: Ever, at any time or - - -

PN156

MR RUDD: What we would say in terms of the time, that in addition to not to terminate the employees and - - -

PN157

THE COMMISSIONER: So within some sort of time frame, that no steps of that kind be taken?

PN158

MR RUDD: Yes, at least until the matters which are currently before you in the application for the orders are determined by the Commission.

PN159

THE COMMISSIONER: Now, is that any offer of employment?

PN160

MR RUDD: It would be, if I can be more specific, it would be in terms of - well, generally speaking, yes, it would be any offer of employment, I think.

PN161

THE COMMISSIONER: So even on more advantageous terms with full recognition of service?

PN162

MR RUDD: Yes, we would press that point, Commissioner.

PN163

THE COMMISSIONER: What would be the merit of that?

PN164

MR RUDD: The basis behind it is that it concerns the transmission of business and there are a number of issues that have - from our point of view are relevant.

PN165

THE COMMISSIONER: But, you see, I don't know about them and they are understandably complex, so don't you need to give this a little bit more thought?

PN166

MR RUDD: Well, Commissioner, it was our intention today to press on with our application. The reason that we - - -

PN167

THE COMMISSIONER: But we keep confusing two things. One is the consultation application, isn't that right?

PN168

MR RUDD: Yes, Commissioner.

PN169

THE COMMISSIONER: That is a consultation application.

PN170

MR RUDD: Yes, Commissioner.

PN171

THE COMMISSIONER: So can we just stay on one subject at a time and that is the recommendation that relates to any potential offer of employment that might be made by Alinta to persons employed by Multinet?

PN172

MR RUDD: But what I am trying to suggest, Commissioner, is that they are both related. The recommendation is related - - -

PN173

THE COMMISSIONER: They may be related and there is plenty of time to explain the relationship in due course and you are not going to be prevented from doing that, but I don't want to just go past some fairly substantial issues as to the appropriateness of the sort of recommendation that you have in mind, as if those issues don't exist.

PN174

MR RUDD: No. If I can frame it this way, Commissioner, and this is my respectful submission, that the recommendation that we are seeking can be made under the application for orders that we currently have.

PN175

THE COMMISSIONER: Well, I have just said to you that I am proceeding on the assumption that prima facie there is jurisdiction and power to make the recommendation. I am now addressing the subject of the merit of doing so.

PN176

MR RUDD: Okay. Commissioner, with respect, what we say is that there are a number of conditions that are provided for in the agreement, in particular one is the superannuation fund. It is our understanding that there would be an intention to shift employees who take up job offers with the new company from that particular superannuation fund to the next. There was a mass meeting of members of the union where they have categorically rejected any such move or any such plans. Our understanding is that it wouldn't be an advantageous move or offer to those employees in the circumstances. That is why we have - - -

PN177

THE COMMISSIONER: Is that the only issue?

PN178

MR RUDD: Well, that is one issue that has - to my attention, that has arisen.

PN179

THE COMMISSIONER: Are there any others?

PN180

MR RUDD: If I can have one moment, Commissioner.

PN181

THE COMMISSIONER: Yes.

PN182

MR RUDD: Yes, Commissioner, I am informed that the difficulty we have is that we haven't actually had any detailed information from the company, although we have heard that they would be in the form of an Australian workplace agreement and as the Commissioner would know, they are confidential and that is a difficulty that we would have, so they are the grounds for what we are seeking in terms of the recommendation.

PN183

THE COMMISSIONER: Well, it lacks a certain amount of precision, I must observe, the whole situation. I can understand that perhaps that is not entirely within your control, but I don't even know the terms of the recommendation, the specific terms that you are proposing. You would need to produce those in writing and I think you would need to produce some submissions in support of the merit of them and it may be that if they are contested, there is the necessity to hear some evidence about the merits.

PN184

MR RUDD: We could provide a written recommendation today, Commissioner.

PN185

THE COMMISSIONER: And an outline of argument.

PN186

MR RUDD: And an outline of argument, yes, Commissioner, if that was acceptable.

PN187

THE COMMISSIONER: Well, it is a bit hard for me to ask Mr Rogers to respond, anyway, because he is not quite sure what is up for grabs. Isn't that right?

PN188

MR RUDD: No, Commissioner, the issue at its base level is that we don't want the company to make job offers to employees of Multinet in the interim period until this matter is determined. He knows that.

PN189

THE COMMISSIONER: Well, he may know that, but he doesn't know precisely what action you are going to ask the Commission to take.

PN190

MR RUDD: Well, I think I did explain in the adjournment that that is the only addition to the undertaking that they said they would already provide. It is not any more complex than that, just simply seeking that Alinta Network Services Pty Limited - - -

PN191

THE COMMISSIONER: Not make any job offers to anybody who is employed by Multinet.

PN192

MR RUDD: Until this matter of the orders application is determined.

PN193

THE COMMISSIONER: Well, it may sound elegantly simplistic, but I doubt that it is as simple as that, with all due respect, Mr Rudd. There are a number of things to be weighed about that situation. What if the job offers were more advantageous and there was full recognition of service with Multinet? Would the recommendation impede those?

PN194

MR RUDD: We would say that it would, Commissioner.

PN195

THE COMMISSIONER: Well, surely you see that there is a bit more to this than just your wish and preferences or convenience for the way in which you prefer to go about representing the interests of the employees.

PN196

MR RUDD: Commissioner, I appreciate that, but if those job offers are in the form of an AWA, we may not be involved in examining those documents or have the opportunity to be involved.

PN197

THE COMMISSIONER: That is right, yes, I understand that.

PN198

MR RUDD: I appreciate the Commissioner's position that it may be the case that they might offer a position which is more advantageous than what currently exists, but given the form of those job offers, well, we may not know and in those circumstances, yes, we would press for the recommendation in the terms that we have fervently given today.

PN199

THE COMMISSIONER: Yes, well, there is not much before me upon which to base the contemplation of that recommendation, is there?

PN200

MR RUDD: Well, there has been submissions from the bar table and we could - - -

PN201

THE COMMISSIONER: Yes, but let us assume that they are all right. All you have told me is that there is some potential disadvantage arising out of a change from superannuation fund A to some unidentified superannuation fund. Now, this lacks substance, doesn't it?

PN202

MR RUDD: It does, Commissioner, I would concede that, but in those circumstances, we have the relevant officials and member at the work site who could give evidence to attest to what has actually gone on.

PN203

THE COMMISSIONER: Well, that might be helpful.

PN204

MR RUDD: And that might be more suitable for the Commissioner in which - - -

PN205

THE COMMISSIONER: Well, it would certainly add some substance to the issue.

PN206

MR RUDD: I appreciate that, in which to make such a recommendation. As I say, the recommendation that we would seek - - -

PN207

THE COMMISSIONER: First of all, Mr Rogers has to get some instructions about how to respond to this initiative, because there was no notification of that, was there, when this application was lodged? I think this has emerged since 12.20, hasn't it?

PN208

MR RUDD: But if the Commissioner can appreciate that this is only in response to the respondent saying that they are not in a position to advance the matter today. We can only do the best that we can given their position today, that they have basically said, look, we are not in a position to move ahead today, even though they knew the matter was listed for hearing.

PN209

THE COMMISSIONER: But they have given an undertaking about consultation. That is what was listed for hearing, wasn't it? The content of the application, there is no reference to, is there? Maybe I haven't read something.

PN210

MR RUDD: Yes, if I can take the Commissioner through the orders that are sought, consultation is certainly one part of the orders that we are seeking, but an important part that we certainly believe is, if I can direct the Commissioner's attention to draft order 2 where it states that:

PN211

Multinet, its directors, employees or agents must provide the AWU with all relevant information regarding the proposed organisational restructure of Multinet and the proposed terminations.

PN212

That goes to what we were suggesting to you before about the terms and conditions of employment and the transmission of business issues.

PN213

THE COMMISSIONER: Well, I don't have any difficulty with this submission. It just seems to me that it is not the same as what we have just been discussing, which is me making a recommendation rather than a direction for discovery. That is the nature of the order. It is an order for discovery, isn't it?

PN214

MR RUDD: That is one part of the order, yes, Commissioner.

PN215

THE COMMISSIONER: Yes, all right. Well, the point that I am making is the merits of making an order for discovery of information may well exist in the circumstances, but that doesn't necessarily mean that they are the same merits of making a recommendation that no offers of employment be made.

PN216

MR RUDD: What I am saying, Commissioner, is that the orders that are sought, that discovery is one part of the orders that we are seeking.

PN217

THE COMMISSIONER: All right, let us assume I was inclined to issue an order or directions for discovery in accordance with your application. What does that mean?

PN218

MR RUDD: Commissioner, my understanding is that that is framed in the terms of article 13 and that is also part of the situation that was mentioned before, that it is wrapped up in the whole of the orders that we are seeking, that the respondent hasn't had an opportunity to put evidence as to why the - - -

PN219

THE COMMISSIONER: I think we are digressing again. Would you just bear with me for a moment while I ask Mr Rogers, what do you know about any potential offers of employment being given?

PN220

MR ROGERS: Well, certainly at this point in time, I understand no offers have been made. There are a number of issues still to be resolved.

PN221

THE COMMISSIONER: Do you know what the intentions are in relation to making of offers of employment? It appears that there are going to be offers.

PN222

MR ROGERS: Yes, offers are going to be made by Alinta Network Services.

PN223

THE COMMISSIONER: Right. Well, do you have any knowledge of what the potential time in which that is likely to occur is?

PN224

MR ROGERS: I understand that part of the time frame was contemplating maybe presentations to employees within the next fortnight. I might just ask Mr Noonan. Is that correct, Mr Noonan?

PN225

MR NOONAN: Yes, I would anticipate presentations and there is certainly considerable pressure from the workforce to see offers put in front of them, so we are under pressure from employees to get some certainty about their future, so, yes, I would think in the next two weeks.

PN226

THE COMMISSIONER: Have you made any decisions about what the content of the offers will be?

PN227

MR NOONAN: Commissioner, very close to that. The issue of the superannuation arrangement has been the final point and I would expect that to be finalised late this week, early next week and put before the employees through a series of workshops from the middle of next week onwards. It will take some time to work through the entire several hundred employees.

PN228

THE COMMISSIONER: All right. Thanks. That is what I wanted to know. Yes, I would like to revisit the unresolved application for the adjournment, because, as I say, I think we have sort of digressed a bit away from that application and to keep the proceedings in some sort of order, it is appropriate for me to I think address that. It just seems to me that if this matter can be relisted in the near future and before the middle of next week, that there won't have been any offers made to the employees by that time. Now, if anybody here is going to tell me something different, please do so now.

PN229

I note that that is generally not objected. Under those circumstances, Mr Rudd, it seems to me that I can provide you with the opportunity to draft a proposed recommendation. I can adjourn consideration of whether or not I ought to make the consultation order, particularly in light of the undertaking, without prejudice to the AWU. The only issue that arises is the question of discovery of all the things that you have mentioned so far. Is that right?

PN230

MR RUDD: Yes, Commissioner.

PN231

THE COMMISSIONER: Mr Rogers, is there any objection to the order for discovery that is sought in paragraph 2 of the application that is before me?

PN232

MR ROGERS: Commissioner, what I would propose and I might have to just seek instructions from my client, is actually to provide an undertaking in accordance with paragraph 2, so that they will be provided with - - -

PN233

THE COMMISSIONER: So that it will be Multinet, its directors, employees or agents will provide the AWU with all relevant information regarding the proposed organisational restructure of Multinet and the proposed terminations, including - well, I think I would rather just leave it there, without including anything.

PN234

MR ROGERS: Yes, I think that is appropriate, Commissioner.

PN235

THE COMMISSIONER: Because I don't want - there is a certain questionable relevance of (a), (b) and (c) on the facts as I understand them.

PN236

MR ROGERS: Yes, I agree with that.

PN237

THE COMMISSIONER: Because it is asserted that there are no terminations that have been decided upon and there is an undertaking that none will be decided upon.

PN238

MR ROGERS: Until we actually - - -

PN239

THE COMMISSIONER: So that (a), (b) and (c) of paragraph 2 of the orders sought are irrelevant it seems to me at this moment.

PN240

MR ROGERS: Yes. If I can just confirm those instructions, Commissioner.

PN241

THE COMMISSIONER: Mr Noonan, do you have any objection to an undertaking or some means by which Multinet, its directors, employees or agents will provide the AWU with all relevant information regarding the proposed organisational restructure of Multinet and any proposed terminations of employment? I would also I think have you understand that that means the terms and conditions of any offers of employment that are to be made to employees by Alinta.

PN242

MR NOONAN: In general terms I have no trouble with that. It has not been our practice to share with all and sundry the content of Australian workplace agreements.

PN243

THE COMMISSIONER: Well, I am not actually suggesting that you share the contents of an Australian workplace agreement. Now, just to explain that a little further, an Australian workplace agreement does not exist until an agreement between an employer and an employee have been approved by the Office of Employment Advocate. What information you would be required to provide under the undertaking or any order that I might make is the terms and conditions of employment which you would offer to employees on behalf of Alinta, not necessarily the contents of AWAs.

PN244

MR NOONAN: And I would be most happy to make that information available to all of the parties.

PN245

THE COMMISSIONER: Yes, very well.

PN246

MR ROGERS: I should clarify that the undertaking will be from Alinta Network Services Pty Limited as agent for the two Multinet entities.

PN247

THE COMMISSIONER: As agent for. Well, the undertaking is on behalf of Multinet. It is given by Alinta as agent, but Multinet will be legally answerable for compliance with the undertaking by virtue of the act of its agent, Alinta. Mr Rudd.

PN248

MR RUDD: Commissioner, we would concur with that.

PN249

THE COMMISSIONER: I don't see a need to make an order in light of the undertaking, unless you have some concerns about whether or not compliance with the undertaking is being effected. In the event that you do have any such concerns, I will restore the application to the list at short notice. Under these circumstances, it seems to me, subject to anything further you might say, Mr Rudd, that the application can be adjourned to a time and date to be fixed, but I should indicate that time and date will be early next week.

PN250

MR HEATH: Commissioner, can I just clarify something for my own mind?

PN251

THE COMMISSIONER: Yes, Mr Heath.

PN252

MR HEATH: We already have members who have been made - the structures for employment from ANS, the positions that they require are being filled. The AWAs may not have been finalised, but people are being made to exercise a choice about taking up this employment before we have any idea of the nature of the restructure and the impact.

PN253

THE COMMISSIONER: Well, no, let me just intervene. I think what you are really addressing is the question of the time within which people are required to accept offers. Is that right?

PN254

MR HEATH: Well, it would seem to me that if someone is allowed to proceed to - if ANS is allowed to proceed to staff its enterprise and therefore de-staff Multinet, well, then how in the hell have we achieved anything? We don't know what Multinet is doing. We don't know - - -

PN255

THE COMMISSIONER: I am not quite sure what you want me to do. You will have to explain.

PN256

MR HEATH: Well, I am just saying does that include then continuing to be able to offer jobs, if there may not be an AWA that has been finalised?

PN257

THE COMMISSIONER: Well, what I am discussing at the present time and things are getting awfully confused down there is an issue of discovery. It a provision of information. That is what Mr Rudd asked me to address. That is what I am addressing at the moment. That is all. Now, does that answer your question?

PN258

MR HEATH: Well, I understand from the company, they say that we know that there are people in positions in the ANS company structure. They have taken the notional jobs or have been made to take them.

PN259

THE COMMISSIONER: Mr Heath, it is not on the point. We are just dealing with the question of the extent of discovery that should be made available in accordance with the undertaking or any order. We may come to other issues in due course, but that is what we are addressing at this moment.

PN260

MR HEATH: I am just trying to understand in my own mind, so that when I go back and report what has happened - - -

PN261

THE COMMISSIONER: Well, you see, I can't solve your problems except by exercising some power or jurisdiction under the Act which is appropriate on both providing an opportunity to any person in respect of whom the relief is sought to be heard, secondly establishing that there is merit in doing whatever is proposed. Now, at the present time, all that has been put to me and you may be raising a new matter, I am not quite sure what it is, really, to be honest, is first of all the question of the consultation order, secondly the question of offers of employment being made. I am told that offers are not going to be made until mid way through next week at the earliest.

PN262

MR HEATH: But if they have been made, sorry to interrupt.

PN263

THE COMMISSIONER: That hasn't been raised with me, Mr Heath.

[12.43pm]

PN264

MR HEATH: That is the point I was putting. It is not true to say - - -

PN265

THE COMMISSIONER: Surely the organisation has to put this case in a reasonably orderly fashion and I am not quite sure what relief you are seeking. I have no idea what this subject is about.

PN266

MR HEATH: It is about us being able to be consulted, consider mitigation of terminations without at the same time - - -

PN267

THE COMMISSIONER: Well, there is an undertaking been given in that respect.

PN268

MR HEATH: Well, at the moment I seek to clarify whether that also meant that they are not able to actually put their restructured organisational chart out there and seek people fill those positions before that type of consultation takes place with me and with Multinet. Now, that is the bit that I was just trying to get a grip on. If someone says it does, well, that is fine.

PN269

THE COMMISSIONER: What I am trying to explain to you is that I can only exercise some power or jurisdiction under the Act. I cannot make policy for the company, so if you want some sort of relief, then it should be specified and the merit of it should be explained. What is it that you are seeking?

PN270

MR HEATH: Well, as I say, that the company mitigate its terminations and explains its restructure. Clearly, everything they have said to me, they act on both sides of the fence. They say we will - - -

PN271

THE COMMISSIONER: How?

PN272

MR HEATH: How? Because when I meet with them, they say - - -

PN273

THE COMMISSIONER: No, no, how should your desire for something to be done by the company be effected through the exercise of some sort of jurisdiction or power on the part of the Commission?

PN274

MR RUDD: Commissioner, if I can answer that. I appreciate we have gone off track a little bit.

PN275

THE COMMISSIONER: We are continually digressing. We get just about to the conclusion of a particular point and then there is a new digression and I am starting to wonder exactly when that might end, but nevertheless can we just cap off on the question of discovery?

PN276

MR RUDD: Look, there seems to be some confusion and I need to clarify that for everyone's benefit.

PN277

THE COMMISSIONER: Well, can we make sure that there is no confusion about discovery?

PN278

MR RUDD: The discovery, yes, was part of the orders that the union was seeking and in addition, there is consultation - - -

PN279

THE COMMISSIONER: So the undertaking about discovery that has been given by Mr Rogers, confirmed by Mr Noonan, is sufficient for the purposes of discovery, is that right?

PN280

MR RUDD: Yes, that is correct.

PN281

THE COMMISSIONER: All right. Now, is there another issue that has yet to be dealt with?

PN282

MR RUDD: In the orders sought, the issue is in respect to consultation, as you, Commissioner, quite rightly identified and in particular draft order 3, that Multinet's directors, employees or agents must provide an opportunity for consultation with the AWU on measures to be taken to avert, minimise the terminations - - -

PN283

THE COMMISSIONER: So you are asking whether the undertaking on consultation earlier given extends to that?

PN284

MR RUDD: Yes.

PN285

THE COMMISSIONER: Mr Rogers.

PN286

MR ROGERS: Sorry, whether - - -

PN287

THE COMMISSIONER: You might need to revisit the undertaking.

PN288

MR ROGERS: The undertaking we provided is in terms of what is contained in paragraph 3.

PN289

THE COMMISSIONER: The undertaking is in those terms?

PN290

MR ROGERS: It is. It says without first notifying and consulting with the AWU and/or APESMA on measures to be taken to avert or minimise the terminations and measures to mitigate the adverse effect of any termination on the employees concerned.

PN291

THE COMMISSIONER: All right. Well, look, I contemplate that the meaningful compliance with that particular provision of the undertaking will require an opportunity to meet and confer with the AWU prior to the offers being made.

PN292

MR RUDD: Sorry, Commissioner, if I can just say that it appears as if we are arguing over nothing then. What you are saying is what we are seeking in the orders before the Commissioner.

PN293

THE COMMISSIONER: Well, the purpose of these proceedings has been to try and satisfy the interests of both parties, so we should I suppose be in universal acclaim of the fact that we seem to have achieved that.

PN294

MR RUDD: I think, Commissioner, in those circumstances it wouldn't be beyond the realms of possibility to have it such that there would be consent order made today, rather than an undertaking. The reason that I respectfully request that is that it is an enforcement issue.

PN295

THE COMMISSIONER: I understand that, but the undertakings which I am prepared to accept, I should say, have to be considered in the context that I intend to relist this matter early next week. Now, what is on the record is that there is not going to be any terminations before that time and, secondly, you will be provided with the relevant information and an opportunity to meet and confer with the employer before any offers of employment are made.

PN296

Now, under those circumstances, I do not see the necessity to make an order. If, however, you become aware of a situation where you doubt that the undertakings are being complied with, I will restore the matter to the list urgently for the purpose of considering whether or not any orders or directions ought to be made.

PN297

MR RUDD: We would be happy with that course of action, then, Commissioner.

PN298

THE COMMISSIONER: It is one of the objects and policies of the Commission's activities that it should try and as far as possible promote agreement between the parties, rather than to impose orders and decisions upon them, so we do try, in the process of hearing these applications, try and arrive as far as possible at voluntary arrangements and if that is possible and confidence in a voluntary process can be established, then it is more desirable than imposing orders upon the parties, so if you have got concerns about compliance with the undertakings, you can raise them with my office and I will relist the matter.

PN299

MR RUDD: Thank you, Commissioner.

PN300

MR ROGERS: Commissioner, one thing I just wanted to clarify with you, in terms of the undertaking we have provided, it addressed measures to be taken to avert or minimise the terminations and measures to mitigate the adverse effect. Now, that was an undertaking we were prepared to provide generally. It wasn't limited until any relisting of this matter.

PN301

THE COMMISSIONER: I appreciate that.

PN302

MR ROGERS: However, the issue about whether it extended to consultation about any offers being made we thought fell outside the scope of that undertaking.

PN303

THE COMMISSIONER: Yes, well, it does in terms of that specific undertaking that you gave, because it related to terminations.

PN304

MR ROGERS: Yes.

PN305

THE COMMISSIONER: However, what I was saying to Mr Rudd is that I am inclined to the view that the company should meet and confer with the AWU prior to the offers being made, that is all, meet and confer and it will need to provide the information in item 2 which is the subject of the second undertaking that was given prior to the offers being made and I direct accordingly.

PN306

MR ROGERS: Subject to myself maybe getting some instructions from Mr Noonan, I thought that would have then addressed the substance of this application without any need for - - -

PN307

THE COMMISSIONER: Well, that is why I have adjourned it without making an order or insisting upon the arrangements being reduced to a consent order. If an order is required, the application can be refreshed and the matter restored to the list if there is non-compliance with the undertakings, but my perspective on the situation as to what will happen going forward is that the company will provide the relevant information, that there will be no terminations of employment, that it will meet and confer with the AWU, that it will do all of those things in paragraph 3 of the order in relation to any potential terminations and it will also provide information to the AWU about the terms and conditions of employment that Alinta would offer to anybody who wished to commence work with that company and that it should do so prior to the offers being issued, but I am not prepared to say that the offers should not be issued.

PN308

MR ROGERS: It is that issue about consultation with the unions prior to any offers being made that I will probably just need to get some specific instructions upon.

PN309

THE COMMISSIONER: Yes. Mr Noonan, Mr Rogers just wants you to confirm that you are happy to proceed on that basis as a formal feature of his instructions. Is that convenient to you?

PN310

MR ROGERS: Whether I need to speak separately with Mr Noonan.

PN311

THE COMMISSIONER: I see. I beg your pardon. Mr Rogers would like to speak to you. I will give him an opportunity to give you a telephone call.

PN312

MR NOONAN: Perhaps if we each step outside, that would be convenient.

PN313

THE COMMISSIONER: Yes, all right. I understand. We will just do that for about five or 10 minutes or as long as you require. My Associate will be on hand. Thank you.

SHORT ADJOURNMENT [12.55pm]

RESUMED [1.10pm]

PN314

THE COMMISSIONER: Yes, Mr Rogers.

PN315

MR ROGERS: Thank you, Commissioner. Commissioner, I can advise you that Alinta Network Services, Mr Noonan will in fact consult with the unions on Monday regarding the structure and detail of the offers to be made to employees of Multinet before Alinta Network Services makes any further offers of employment to Multinet employees and just one thing I want to clarify for the record. Apparently there has been one employee of Multinet that has - at a senior level that has accepted an offer of employment with Alinta Network Services.

PN316

THE COMMISSIONER: Well, look, thank you for that. Mr Rudd, does that mean that you have no objection to the adjournment that I contemplated, that I will list this matter some time next week?

PN317

MR RUDD: No, Commissioner.

PN318

THE COMMISSIONER: So you have no objection. Very well, I will let the parties know, but it will be after Monday.

PN319

MR ROGERS: The only issue, Commissioner, is whether there is any need to actually have an actual date or relisting the matter.

PN320

THE COMMISSIONER: Well, there probably is from this point of view, that if I don't list it, there won't be a date, so that I would rather actually list it for mention at least and if there needs to be a hearing of more substance, a more elaborate proceedings than a mention, then I will leave it to the AWU or to the respondents to advise me beforehand and I will make arrangements.

PN321

MR ROGERS: I suggest that if there is to be a more substantive hearing, that directions be issued, if you receive that notification.

PN322

THE COMMISSIONER: I will consider that at the time, but I will note that.

PN323

MR ROGERS: Thank you.

PN324

THE COMMISSIONER: Very well, this application is adjourned to a time and date to be fixed, in particular having consideration for the several undertakings that have been given on behalf of Alinta and Multinet and in particular on the basis that the adjournment is not objected to by the applicant in light of the arrangements that have been made between the applicant and the respondents to obtain appropriate information, to ensure that the services of no employee of Multinet is terminated and to meet and confer in relation to offers of employment that Alinta is contemplating making to employees of Multinet between now and the early part of next week.

PN325

Accordingly, I will list the matter for mention next week, after Monday of next week. In the event that anything more than a mention is required, I direct that a party seeking a more elaborate proceeding advise the Commission prior to the conduct of the mention and in particular that that party should indicate the manner in which the proceeding should go forward, if necessary. Thank you.

ADJOURNED ACCORDINGLY [1.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 FACSIMILE COMMUNICATION FROM MR NOONAN DATED 08/08/2003 PN56