C2002/1486, Transcript of Proceedings [2003] AIRCTrans 855 (18 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT1833
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2002/1486

MUSICIANS' UNION OF AUSTRALIA

and

NETWORK TEN PTY LTD AND OTHERS

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions

MELBOURNE

11.52 AM, THURSDAY, 27 FEBRUARY 2003

Continued from 16.1.03

PN243

THE COMMISSIONER: Good morning, and first of all I sincerely apologise to the parties for the delay in commencement of the proceedings this morning. Unfortunately, I was detained by a bit of a crisis in an organisation that I am a member of the board of which needed to be resolved immediately. So thank you for your patience and I will ask if there are any changes in the appearances, please.

PN244

MR G. HATCHER: Well if it please the Commission, I seek leave to appear with my learned friend MR M. MURPHY for the respondent organisations?

PN245

THE COMMISSIONER: Yes, very well. Is there any objection to that?

PN246

MR NOONE: Yes, Commissioner, we don't see any need for the appearance of counsel on behalf of the other side.

PN247

THE COMMISSIONER: All right. Mr Hatcher.

PN248

MR HATCHER: If it please the Commission - - -

PN249

THE COMMISSIONER: Has leave already been granted?

PN250

MR HATCHER: It was granted in the appeal and wasn't opposed in the proceedings for Mr Graham.

PN251

THE COMMISSIONER: That is right, yes.

PN252

MR HATCHER: And leave once granted - - -

PN253

THE COMMISSIONER: Yes, it is not a personal grant of leave.

PN254

MR NOONE: No, no.

PN255

THE COMMISSIONER: It is a grant of leave, I think, Mr Noone - I just - I have not looked at the transcript, obviously, but I am assuming that I granted leave for the respondents to be represented by counsel when - - -

PN256

MR HATCHER: The leave was granted, Commissioner, to Mr Graham.

PN257

THE COMMISSIONER: Yes. All right. Yes, well, I don't think there is any - - -

PN258

MR HATCHER: No.

PN259

THE COMMISSIONER: It is my fault; I beg your pardon.

PN260

MR HATCHER: I think I sought leave, Commissioner, so I have started the whole controversy unwittingly.

PN261

THE COMMISSIONER: I am not sure; some of these things tend to become automatic. I wasn't quite sure whether - I just immediately turned to the other party without consideration of the fact that Mr Graham had appeared and that, therefore, leave had been granted either explicitly or by inference on that occasion. So let us just proceed. You have just announced the difference in the persons appearing.

PN262

MR HATCHER: Change in the appearance.

PN263

THE COMMISSIONER: All right.

PN264

MR HATCHER: Perhaps, Commissioner, part of the problem is that there is some confusion about what exactly is before the Commission and I raised it with Mr Noone and it is agreed that I should raise it at the very outset of these proceedings.

PN265

THE COMMISSIONER: All right.

PN266

MR HATCHER: If the Commission has seen the submissions we filed we intend that - all that was intended by the Full Bench to come back before the Commission was as a result of perhaps some misunderstanding as to the process that the Commission had been involved in in the dispute findings. All that came back was the question of whether Sully Music ought properly to have been found to be party to a dispute, Sully Music having been part of the proceedings below and, accordingly, part of the record that went before the Full Bench, but the subject of a separate dispute finding which wasn't before the Full Bench in the appeal proceedings.

PN267

THE COMMISSIONER: That is right. It seems - and there may be no disagreement about this - but it seems that the Full Bench may not have been fully informed about the status of Sully Music in relation to the broader scope of the proceedings brought by the MUA in relation to alleged industrial disputes.

PN268

MR HATCHER: Yes, I think that is - - -

PN269

THE COMMISSIONER: And they just simply weren't aware of the fact there had been a finding.

PN270

MR HATCHER: A separate dispute finding.

PN271

THE COMMISSIONER: Yes.

PN272

MR HATCHER: I think that is so, Commissioner.

PN273

THE COMMISSIONER: Do you accept that, Mr Noone?

PN274

MR NOONE: Yes.

PN275

THE COMMISSIONER: Yes, all right. So that insofar as your outline as filed, dated 21 February, is concerned, that is probably redundant, is it not, paragraph (a)?

PN276

MR HATCHER: Well, no, Commissioner. That, we say - - -

PN277

THE COMMISSIONER: That part about Sully Music.

PN278

MR HATCHER: Well, that, we say, is all that was intended to be referred back and the Commission has already dealt with that - - -

PN279

THE COMMISSIONER: All right.

PN280

MR HATCHER: - - - to the extent it needed to in January, when it simply confirmed the earlier dispute finding.

PN281

THE COMMISSIONER: I understand, yes. So you don't think that the remit was any broader than the - - -

PN282

MR HATCHER: That is our submission, Commissioner. It follows from the passages immediately before the final decision. Could I take the Commission to the Full Bench decision, which I should say for the purposes of the record is print PR925331, a decision of the Full Bench of 4 December 2002. Could I invite the Commission to turn to paragraph 31 of the decision. The Commissioner sees that the Full Bench there say:

PN283

On our examination of the evidence before Commissioner Lewin we also find it very difficult to see why he found that the appellants ...(reads)... arising from the sworn statements that the appellants do not employ and are not likely to employ.

PN284

So the Commission finds there on the evidence that the applicant hadn't discharged the evidentiary onus on them of establishing the existence of an industrial dispute. In paragraph 32:

PN285

Nor is it clear on the evidence that the influence that the appellants may from time to time have on terms and conditions of employment of employed musicians is sufficient to generate an industrial dispute, particularly if the appellants do not employ and are not likely to employ musicians.

PN286

And then in paragraph 33:

PN287

In our view the decision in this present matter is attended by sufficient doubt to warrant its reconsideration. There may also in our view be a substantial injustice to the appellants if leave to appeal is refused.

PN288

Now, in our respectful submission those two sentences are directed to the question of leave, the question of sufficient doubt attending on the decision being one of the principal bases which guides a Full Bench in the exercise of the discretion to grant leave to appeal. They then say:

PN289

We grant leave to appeal quash the finding of a dispute against the appellants.

PN290

So they have discharged their function on appeal by quashing the dispute finding. It is at an end; those proceedings are concluded. They then go on in paragraph 34 to say:

PN291

No dispute was apparently found with respect to Sully Music Australia Pty Ltd, notwithstanding the evidence before the Commission ...(reads)... On the evidence before us Sully Music should have been included in the finding of dispute.

PN292

And, of course, my learned friend, Mr Murphy, and myself didn't act for Sully Music either in the appeal or in any earlier proceedings. Sully Music weren't represented on the appeal and all the Commission was saying was we accept the appellant's submission that there is simply no evidence to support the dispute finding that the Commission made in respect of them, but we are a bit troubled by the fact that there was evidence to sustain a dispute finding and so far as they were aware no dispute finding had been made. And they then say:

PN293

The evidence before us insufficient to enable us to ourselves determine the matter.

PN294

In our respectful submission the matter that is referred to is whether a dispute should be found in respect to Sully Music, whether the inference that they draw that no dispute was found because Sully Music had put on evidence that it was not a television station, is what led the Commission at first instance not to make a finding of dispute against Sully Music, and that, we say, is the matter that is remitted to you, Commissioner, to hear and determine according to law.

PN295

So in our respectful submission the Commission has completed the duty imposed on it by the Full Bench remitter in publishing the clarification that was published in January in respect to Sully Music. Accordingly, we invite the Commission to terminate these proceedings, it having completed the duty imposed upon it by the remitter.

PN296

THE COMMISSIONER: Well, I obviously will have to decide that question, but I am not so sure that I will necessarily decide it as a threshold question..

PN297

MR HATCHER: That is clearly a matter for the Commission.

PN298

THE COMMISSIONER: And I may hear all that the parties wish to put, including what the issues of evidence might be in support of the assertion that there is a dispute, if the remit goes as far as the union would have it.

PN299

MR HATCHER: If it please, Commissioner, there is another matter that - an evidentiary matter that arises that is perhaps of some utility if I at least outline it before Mr Noone rises, and that is this. The evidence that was before the Commission in the principal proceedings was in part evidence by way of an affidavit of a Ms Halliday. That was evidence led by the applicant union. It was evidence that no persons are employed in Carols by Candlelight. That evidence, being the applicant's evidence, can't be called into question by the applicant. They can't impeach their own witness, in short.

PN300

The respondent called evidence that was unchallenged, that GTV9 in Carols by Candlelight do not employ musicians. That evidence having not been challenged, there being no cross-examination, can't be called into issue by evidence in reply. In those circumstances the statement that has been provided of Mr Walsh, if it were to say I am employed by Channel 9 for Carols by Candlelight - which I might say it doesn't say - but if it were to say that, would not be admissible.

PN301

THE COMMISSIONER: Why is that?

PN302

MR HATCHER: Because it would be inviting the Commission to resolve a controversy in the evidence - a controversy as to direct evidence called by the union in relation to GTV9's - - -

PN303

THE COMMISSIONER: Well, I understand that the evidence called by the union has - well, I mean the strict rules of evidence don't apply, but if you did apply them, that they are bound by that.

PN304

MR HATCHER: Yes.

PN305

THE COMMISSIONER: Insofar as that witness is concerned. But if they choose to introduce another witness, how can the fact that they are bound by the evidence of the first witness prevent them seeking to introduce another witness?

PN306

MR HATCHER: They can introduce another witness, but they can't introduce another witness to contradict their earlier witness. Having - - -

PN307

THE COMMISSIONER: Why not?

PN308

MR HATCHER: Because they have led evidence from Ms Halliday - - -

PN309

THE COMMISSIONER: Yes, but doesn't the rule only confine itself to the evidence of that witness?

PN310

MR HATCHER: But this evidence is sought to directly contradict the evidence of that witness.

PN311

THE COMMISSIONER: Well, it may be different - a factual experience. Witness A's experience and knowledge and understanding may different to witness B's.

PN312

MR HATCHER: That may be so and if that was the case they wanted to put, then when they put witness A in the witness box - and if witness A didn't adduce the evidence that they had expected, having proofed the witness, they would be entitled to have the Commission rule on whether they could cross-examine that witness and adduce the differences.

PN313

THE COMMISSIONER: Yes, in a strict sense I don't have any argument with that, but I just wonder in this jurisdiction, and in the nature of the proceeding, a notification of an alleged industrial dispute, whether or not one should approach it so strictly, particularly if what is put is, well, that may be witness A's evidence and that is fine, and we accept that from that point of view that creates a problem for us, but we do have knowledge now from our discussions with another witness which we think is relevant to the circumstances of the enquiry and we would like to call that witness, and we don't think that we should be precluded from calling that witness simply because that witness' evidence may be different to the first witness that we call.

PN314

We are in an arbitral jurisdiction and we are actually concerned with an enquiry into whether or not a dispute exists, are we not? Isn't that what the nature of the proceeding is?

PN315

MR HATCHER: We are in an arbitral tribunal which is bound to act judicially. One of the principles upon which the rules of evidence are found, of course, is equity and good conscience, which is the founding principle guiding this Commission in the exercise - the juridical exercise of its jurisdiction. The reason why the rules of evidence have evolved such that you can't impeach your own witness, is that so parties know what is the case they are asked to make. That is why questions such as evidentiary onus, while they are more typically of concern in courts, do still become a matter that the Commission must attend upon.

PN316

THE COMMISSIONER: Yes. I would suspect the reason why the provision in the Act that allows departures from the rules of evidence is that we are not concerned here with the enforcement of rights, but rather with delegated legislative functions which are concerned with the creation of them, and that an investigative approach in some cases is necessary. Indeed, the parliament seems to be very, very supportive of the idea that the Commission - or at least some members of the parliament, not least of them, the Minister, seems to be very supportive of the proposition that the Commission should act more in an inquisitorial way than in the traditional adversarial model.

PN317

So I am thinking that if you are right, that strictly speaking in a court of law the evidence which the union seeks to adduce might be excluded by the application of the rules of evidence. I am just wondering whether the nature of these proceedings are appropriate to apply that rule in these circumstances. It seems to me that the responsibility of the Commission prescribed in the Act is to enquire into all of the circumstances of the alleged dispute and to make such findings as are appropriate, and that one would, therefore, perhaps look at it in a slightly different way than a legal proceeding strictly governed by the rules of evidence, such as a criminal proceeding.

PN318

MR HATCHER: If the Commission were to be against us on that - and the Commission is aware we put it on two bases.

PN319

THE COMMISSIONER: Sure.

PN320

MR HATCHER: Not just that it contradicts Ms Halliday but also that it is put in in a circumstance where the witness that we called was not cross-examined as to his evidence that GTV9 does not employ musicians, does not intend to employ musicians. If the Commission were against us and allowed the evidence in it still wouldn't go anywhere near establishing that which is highlighted by the Full Bench, in that Mr Walsh would give evidence according to his statement that he was engaged from time to time by GTV9.

PN321

THE COMMISSIONER: The nature of the engagement would be the issue.

PN322

MR HATCHER: Well, Commissioner, it is more than that because the Commission in resolving the legal question of the nature of the engagement doesn't resolve the factual question of the existence of an industrial dispute.

PN323

THE COMMISSIONER: Well, the facts might determine the nature of the engagement.

PN324

MR HATCHER: No, with respect, Commissioner, the reason we put this submission is assume for the moment that GTV9 were wrong in their characterisation of their relationship with Mr Walsh, and perhaps Mr Walsh was wrong in his characterisation of that relationship. When GTV9 receive a letter of demand from the union, which is said to be the matter in issue, it is a letter of demand that they accede the conditions to their employees. Now, if as a matter of fact they don't believe they have employees, whether they be right or be wrong, they don't join issue with the union on that question. They have no reason to take a position - - -

PN325

THE COMMISSIONER: So their psychological disposition towards the language they use to describe the relationship is the determinant of whether or not there is an industrial dispute or not.

PN326

MR HATCHER: It has nothing to do with their psychological disposition, with respect, Commissioner. It is - - -

PN327

THE COMMISSIONER: Well, surely it does because if there is an economic relationship between two parties and one is inclined to perceive it - or to construe it and categorise it according to what they think constitutes a contract for services, rather than a contract of service, that is going to be a subjective function of whoever is responsible in the organisation to do so.

PN328

MR HATCHER: Certainly.

PN329

THE COMMISSIONER: And we are not talking about judicial officers doing this for the purpose of legal categorisation, we are talking about people working in the industry who are likely to have perceptions of what the difference between an employee and an independent contractor is, and they are unlikely to be informed by legal training, and in some cases unlikely to be informed by legal advice at the point where they do characterise the relationship that they are entering into with that person. Now, they may be informed by legal advice - - -

PN330

MR HATCHER: They may be, they may be.

PN331

THE COMMISSIONER: - - - we don't know that as a matter of fact.

PN332

MR HATCHER: We don't know.

PN333

THE COMMISSIONER: And that may be a relevant fact because on legal advice they may set out very intentionally - an intention for the psychological state - to create a relationship of a contract for services.

PN334

MR HATCHER: But if they believe and are content to give sworn evidence, which is unchallenged, that they have no employment relationship, they have no reason to take a position on a demand that they accede to employees those conditions.

PN335

THE COMMISSIONER: But isn't it the case that in just about every litigation over the distinction between contracts of service and contracts for the provision of services, that the party disclaiming the existence of a contract of service invariably perceives the relationship to be one for the provision of services? That is their state of mind. They invariably resist the characterisation of the relationship as a contract of service, that the law imposes upon them an outcome that they do not perceive to be the case.

PN336

MR HATCHER: That is so, and if the question of whether there be a contract for service arises in proceedings appropriate for the disposition of that question, then it will be determined.

PN337

THE COMMISSIONER: Isn't it necessary in this case?

PN338

MR HATCHER: No, Commissioner, because the fact is that at the time the demand is issued on the employer, the employer has no reason to believe that it requires - - -

PN339

THE COMMISSIONER: Has no perception that there are any employment relationships.

PN340

MR HATCHER: - - - that it requires anything of the employer. Now, if - - -

PN341

THE COMMISSIONER: This is a difficult question that you are posing because it creates a subjective test in the perception of the employer as to whether or not they think that they employ anybody, and there may be an employer in existence who thinks that they have a plurality of economic relationships, none of which constitute a contract of service with a large number of people - - -

PN342

MR HATCHER: Yes.

PN343

THE COMMISSIONER: - - - who is served with a letter of demand by a union, and it may be the case that a court would construe each and every one of those relationships has an employment relationship, a contract of service. Yet if the point that you are making were upheld, the belief of the employer would be the test of whether or not there was or was not an industrial dispute between the union and that employer.

PN344

MR HATCHER: Quite so.

PN345

THE COMMISSIONER: Yes. That would be the first time - - -

PN346

MR HATCHER: Just an industrial dispute.

PN347

THE COMMISSIONER: - - - that point has been upheld, though, you would accept.

PN348

MR HATCHER: I don't know that it has ever been - the Commission has ever been in the position - - -

PN349

THE COMMISSIONER: Yes, well, that may be the reason.

PN350

MR HATCHER: Yes.

PN351

THE COMMISSIONER: That may be the reason, that it may not have been argued, but it would be the first time that the point has been upheld.

PN352

MR HATCHER: And the reason why it has never been argued perhaps, Commissioner, is that this is a very unusual situation where an industrial dispute is sought to be obtained in respect of one person's employment with one employer and, of course, R v Staples is against that proposition in any event.

PN353

THE COMMISSIONER: Well, there may be other reasons why the notifier may fail. I am really just exploring with you the full extent of the proposition that you are making about the subjective test of the employer's belief as to the nature of the relationships that exist between it and other persons.

PN354

MR HATCHER: In the general circumstance the employer would have a plurality of relationships, the putative employer, and a dispute would be found because there are some people that they do employ in the industry, and then - - -

PN355

THE COMMISSIONER: Or they have a clearly stated plan to create those relationships.

PN356

MR HATCHER: Yes, and in the end whether a particular person was party to the - or was affected by the dispute finding or not, would be determined when an award was made and rights were created. But this isn't that case. This is a case where the only person said to be the subject of the demand is one who the employer, and it is unchallenged, says we don't employ this person; our relationship is not one of employer employee. We have no reason.

PN357

THE COMMISSIONER: I think what the union is going to try and put to me is that, for whatever reason, notwithstanding that if it is right. That is to say the subjective view of the employer, that the view of the Commission should be different.

PN358

MR HATCHER: But if the view of the Commission is different it doesn't change the factual circumstance, because the dispute - - -

PN359

THE COMMISSIONER: Well, that is a matter for submission. We are just on the point of - - -

PN360

MR HATCHER: Sure.

PN361

THE COMMISSIONER: - - - the way in which for the purposes of the consideration of whether or not there should be a finding of dispute, the relationship in point should be construed or categorised by the Commission for the purposes of its statutory function. So we are still broadly speaking on the topic of whether or not the evidence should be admitted only.

PN362

MR HATCHER: We are.

PN363

THE COMMISSIONER: Because what you are saying is that it shouldn't be admitted. At this point it shouldn't be admitted because it doesn't establish the applicant's case.

PN364

MR HATCHER: That is right, it can't go to - - -

PN365

THE COMMISSIONER: And the reason it can't do that is because of the subjective view of the employer about that relationship.

PN366

MR HATCHER: That is so.

PN367

THE COMMISSIONER: All right. But what I am suggesting to you, that I would prefer to decide that as part of the - a cognate determination.

PN368

MR HATCHER: The difficulty then with that approach, Commissioner, is that the evidence was all taken, the Commission handed down its decision, there was an appeal. On the appeal the union had the opportunity pursuant to the Act to seek leave to call further evidence.

PN369

THE COMMISSIONER: Yes, but I think that if the remit is as wide as the union would have it that would effectively dispose of that by inference I would have thought, but if there was to be any further evidence called it should be called here, if the remit is wide enough.

PN370

MR HATCHER: Well, I suppose then, Commissioner, that is another submission that we put as to why one would not anticipate the - - -

PN371

THE COMMISSIONER: Yes. Yes. Well, as I say, I would prefer to decide all of the issues cognately, whether the remit goes this far. If so, whether or not the evidence that is submitted is conclusive of any particular aspects of the proceeding that would lead to a finding or not. I anticipate I will have a raft of issues to decide, in due course, if I follow that approach, but that is what I think is the best approach to the bigger question of whether or not there is an industrial dispute and if so who the parties are, as alleged by the notifier.

PN372

MR HATCHER: The Commission - - -

PN373

THE COMMISSIONER: Yes. That is the procedure that I would prefer to adopt. And the reason that guides me is it is the - there are two aspects of the nature of the function that I am discharging now that would take me down that path. First, the statute does require an inquiry and secondly, it seems to me the nature of the inquiry and the outcome of it, which is the finding, is not of a nature which would impose any legal obligations upon your clients. The finding of a dispute imposes no legal duty upon your clients.

PN374

MR HATCHER: It exposes the clients.

PN375

THE COMMISSIONER: It exposes them to a procedural, a procedural - but becoming procedural respondent to, potentially, applications in this jurisdiction, but it does not create any legal duty that they have to discharge.

PN376

MR HATCHER: But they are entitled to have the finding made in accordance with law and to have - - -

PN377

THE COMMISSIONER: Certainly.

PN378

MR HATCHER: Yes.

PN379

THE COMMISSIONER: But it is the nature of that finding that guides my considerations as to the procedure.

PN380

MR HATCHER: The finding is to be conducted in a proceeding in relation to an alleged industrial dispute.

PN381

THE COMMISSIONER: That is right.

PN382

MR HATCHER: Where the Commission is bound to determine the parties and the matters and to record its findings. This is section 101. Which finding may be varied or revoked. The determination is final and binding, pursuant to subsection (3). There is a right of appeal, pursuant to section 45. On hearing the appeal, further evidence can be taken by leave. So much is clear from, I think it is, yes, subsection (6). But then, on hearing the appeal, pursuant to subsection (7), the Full Bench may confirm, quash or vary the decision or Act concerned. We know that they quashed the decision.

PN383

An alternative, we would submit, is to make an award, order or decision dealing with the subject matter. And a further alternative is to direct the member, whose decision or Act is under appeal, to take further action to deal with the subject matter of the decision or act in accordance with the directions of the Full Bench. The Full Bench, in our respectful submission, made no directions for the admission of further evidence, they simply sent the matter back to the Commission to be dealt with in accordance with law. There is no decision of the Full Bench saying that the matter is to be re-opened, as it were, to be re-agitated.

PN384

THE COMMISSIONER: I understand. I will proceed, however, on the basis that I have the discretion to admit the evidence if I choose to do so.

PN385

MR HATCHER: Subject to ruling on that question in your final decision.

PN386

THE COMMISSIONER: On which question?

PN387

MR HATCHER: The remitter, the question of the extent of the remitter.

PN388

THE COMMISSIONER: Yes. If I decide that the remit did not go so far as to determine the existence of a dispute between any other party than Sully Music and the notifier, then I would not have any regard to the evidence at all.

PN389

MR HATCHER: Yes.

PN390

THE COMMISSIONER: I think that is the way I want to proceed.

PN391

MR HATCHER: If it please the Commission.

PN392

THE COMMISSIONER: Good.

PN393

MR HATCHER: Commissioner, there was one other procedural matter that I needed to attend to. There was some confusion flowing from a summons issuing out of the Sydney registry.

PN394

THE COMMISSIONER: Look, that is resolved as far I am concerned.

PN395

MR HATCHER: That is resolved. Thank you, Commissioner. Good.

PN396

THE COMMISSIONER: Thank you. Mr Noone?

PN397

MR NOONE: Thank you, Commissioner. I am just wondering whether I could seek some direction, Commissioner, whether I should be responding to the notion of what the actual nature of the remit is, or whether we want to go forward to the - - -

PN398

THE COMMISSIONER: Yes, well you will have to address that question, I think, somehow, otherwise it might just, sort of, go by default, that if you don't oppose it.

PN399

MR NOONE: Well, we are prepared to - - -

PN400

THE COMMISSIONER: If you accept that the remit was limited to Sully Music, you know, it might be persuasive.

PN401

MR NOONE: Well we are prepared to give submissions on that issue at this point, Commissioner, if you think that is appropriate.

PN402

THE COMMISSIONER: No, I think I have made it clear that what I will do is I will hear what parties have to say about everything and I will decide whether or not the remit goes that far, in due course. So I am not sure that, at this moment, I want to hear you on the Sully Music point. But you will have to respond to what is being put on that point, I think, about the remit. But what I indicated, to Mr Hatcher, was that you want to admit some evidence.

PN403

I am not inclined to prevent you from doing so because of my perception of the nature of the proceeding and the function of the Commission, and that I won't apply a strict rule of evidence that says that any evidence that you might admit now, can't vary from the evidence of the previous witness. That doesn't mean that I have made any findings as to what this evidence actually means. It just means that I won't stop you from presenting it, in general terms. There may be other objections, I don't know, as to the nature of the evidence but - to allow you to actually attempt to introduce it I am not going to say no you can't, at this stage.

PN404

So I think what you ought to indicate to me is what your - what the broad objective that you are seeking to achieve is and the basis upon which you are going to try and do that and what the evidence would contribute to that and then proceed to the subject of the evidence.

PN405

MR NOONE: Thank you, Commissioner. One procedural matter, there is a change of appearance on this side - - -

PN406

THE COMMISSIONER: I beg your pardon?

PN407

MR NOONE: - - - a Mr - - -

PN408

THE COMMISSIONER: Mr Spain.

PN409

MR NOONE: Yes, Mr Spain, yes.

PN410

THE COMMISSIONER: Very good. That will be recorded.

PN411

MR NOONE: Commissioner, our argument is, our submission is that the witness we wish to call, Mr Walsh, is typical of a group of musicians in the television industry employed by the respondents. He was an employee at all material times that he worked for the respondents. Under the application - and if any of the accepted tests of the term and nature of the employer/employee relationship will need to the inevitable conclusion that the nature of this relationship was that of an employer/employee. This leads to the conclusion that the respondents do and are likely in the future to employ musicians and therefore, a finding of dispute can be made between the respondents and the Musicians' Union of Australia.

PN412

So we are not merely saying that this is an example - that this is a single person with whom a dispute can be found but we are saying that he is typical of a group of musicians, and evidence will also demonstrate that there were many more musicians who were engaged at the same time as he was and that the nature of the engagement was, in fact, that of an employee. So that is - excuse me - our argument is relatively straightforward and it only relies upon the one witness, at this stage, Commissioner. Do you - - -

PN413

THE COMMISSIONER: Well is Mr Walsh here?

PN414

MR NOONE: I beg your pardon, Commissioner?

PN415

THE COMMISSIONER: Is Mr Walsh present?

PN416

MR NOONE: Yes, Mr Walsh is here. Do you wish us to call Mr Walsh?

PN417

THE COMMISSIONER: That is what you want to do, isn't it?

PN418

MR NOONE: Yes. We would like to call Mr Walsh.

PN419

THE COMMISSIONER: Mr Walsh?

PN420

MR WALSH: Yes.

PN421

THE COMMISSIONER: Could you please stand in that witness box, there, for just one moment and take either the oath or the affirmation, as you choose, please.

<REGINALD FRANCIS WALSH, SWORN [12.28pm]

<EXAMINATION-IN-CHIEF BY MR NOONE

PN422

THE COMMISSIONER: Thank you, Mr Walsh. Please be seated. Yes, Mr Noone.

PN423

MR NOONE: Thank you, Commissioner. Mr Walsh, just could you give us your full name and address again, please?---Reginald Francis Walsh, 1 Ralston Street, South Yarra, 3141.

PN424

Thank you. And, Mr Walsh, your occupation?---Musician.

PN425

Thank you. Mr Walsh, do you hold any position in the Musicians' Union of Australia?---I do. I am the Federal President of the Musicians' Union and the State President.

PN426

And what is the nature of these positions, Mr Walsh?---I guess, the overseeing of good business.

PN427

Are they paid positions?---They are not.

PN428

Thank you. Have you ever worked in the television industry, Mr Walsh?---I have.

PN429

Could you name some of the programs that you have worked on?---Don Lane Show, Bert Newton Show, several shows on the ABC in the latter days of the '70s. I have worked with Channel 0 and the Ernie Sigley Show. They are numerous. Latterly, I worked on Hey Hey It's Saturday. I worked on Search for a Star, I worked at Channel 7 for many years on the Penthouse Club and the Good Friday Appeal. More latterly, I have worked on Carols by Candlelight with Channel 9.

PN430

Thank you. When did you - have you worked on Carols by Candlelight on more than one occasion?---Certainly. I think it probably goes back to about, certainly, the early '80s and I have worked continuously since then.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN431

So, just to clarify that, every year that Carols by Candlelight has been on since the mid '80s, you have worked on that as a musician?---Yes.

PN432

Okay. How were you paid when you were working on Carols by Candlelight?---Always by cheque - - -

PN433

A cheque made out to you, personally?---Yes, yes. Almost invariably - I can't think of an occasion when the cheque wasn't generated from TCN9.

PN434

Now if I could just ask you, Mr Walsh, focussing on the period from the mid-'80s when you first paid at Carols by Candlelight, up until 1999 - so that is the period I want to ask you about - was tax deducted from your pay?---

PN435

MR HATCHER: Well, I object. This can only be secondary evidence. The best evidence is the documents. And if there are documents they should be before the Commission.

PN436

THE COMMISSIONER: I will allow it.

PN437

MR NOONE: I am sorry?

PN438

THE COMMISSIONER: I will allow it.

PN439

MR NOONE: Thank you, Commissioner. So was tax - from the best of your recollection, was tax deducted from - - -?---Yes.

PN440

- - - your pay. Thank you. From the best of your recollection, was superannuation paid?---Yes, to - into the Just or it may have been Jest in the earlier days, Superannuation Fund, latterly into Channel 9's own superannuation fund.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN441

But that is after 1999 is it?---Yes.

PN442

Okay. Were you paid according to a particular award?---I believe the Television Entertainment Award.

PN443

All right. Okay. Now, how were you actually engaged each time that you were engaged for Carols by Candlelight?---A phone call to check my availability and then a letter of confirmation from Channel 9.

PN444

Okay?---Certainly under a Channel 9 letterhead.

PN445

Yes. When you were engaged, could you replace yourself with someone else to do that engagement?---I certainly couldn't do it without discussion with the people that booked me.

PN446

Would you require someone's permission to do that?---Certainly.

PN447

And who would that be?---At the very least, the musical director.

PN448

Did you ever do that?---No.

PN449

Are you aware of any other musicians who were working on this show, ever did that?---No, no.

PN450

During the actual playing - I am talking about performance and rehearsals for Carols by Candlelight in that period from the mid '80s to 1999, who was actually in charge of you, who was directing you during the performance and rehearsals?---I would be directly answerable to the musical director.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN451

Musical director. And who was the musical director answerable to, from your observation?---In the case of Carols by Candlelight it would be the producer and the directors.

PN452

And, to your understanding, who were the producers and the directors employed by?---I would be most surprised if they weren't Channel 9, because it was a Channel 9 production.

PN453

When you weren't actually engaged in a rehearsal or performance, that is actual playing, whose direction were you subject to?---That would be probably the producers who were running the rehearsal, the - they would set the schedule and they would tell us when we would have breaks and what time to report back to play.

PN454

Was a uniform provided?---Partially. Usually on the letter of confirmation of your engagement, would be the requirement of black pants, black shoes. Channel 9 would invariably, through their wardrobe department, provided 40-odd shirts, complete with studs.

PN455

Now if we can move forward, Mr Walsh, from, we have dealt with that period from the mid 1980s until 1999, I would like to move forward to the year 2000. Did you play Carols by Candlelight in that year?---I did.

PN456

Who engaged you in that year?---Annette Sulivan of Sully Music.

PN457

Okay. And whose - - -

PN458

THE COMMISSIONER: Sorry. I am not clear about that. Is Annette Sulivan a person employed by Sully Music?---Yes, yes.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN459

MR NOONE: And whose direction were you under during rehearsal and performance, on that occasion, the year 2000?---The same situation, directly answerable to the musical director who would be in constant consultation with the producer and director.

PN460

And at other times during your engagement, other than your actual playing, who were you subject to the direction of?---Once again, the musical director and producers who would call rehearsal times, call for breaks and the like.

PN461

Who paid you in the 2000 year?---Sully Music.

PN462

Okay, thank you. Now, apart from those issues that we discussed, where there is some difference between the employment in the mid '80s to 1999 and 2000, what other differences were there in the engagement?---Little or none. I think the main difference that I would recall, we were asked to provide ABN numbers.

PN463

Right?---But its a fairly standard format right through.

PN464

Now if we could just move forward to the year 2001, were you engaged again for Carols by Candlelight, that year?---Yes.

PN465

Who engaged you?---Channel 9.

PN466

Okay. Was a uniform provided, again?---Once again, yes.

PN467

Yes. And whose direction were you subject to during playing?---Once again, the musical director, etcetera.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN468

Yes. So - okay. And how were you paid on this occasion, 2001?---By cheque.

PN469

Yes. And was tax deducted?---No, it was not.

PN470

Did you have to provide an ABN on this occasion?---I did.

PN471

Apart from those issues was there anything that was different about the job?---No.

PN472

Okay. And 2002, how were the arrangements compared to 2001?---Once again, Channel 9 letterhead, confirmation of engagement, direction as to what to wear, parking, where we were to park our cars and the like.

PN473

All right. Now, Mr Walsh, I am going to ask you to identify some documents, here. I tender this document, first, if I may. Okay. Can you identify what that document is, Mr Walsh?---It is a 1998 group certificate.

PN474

Okay. And who was the employer on that group certificate?---General Television Corporation Proprietary Limited/Talent.

PN475

Right. I notice that there is a handwritten annotation at the bottom of that group certificate. Could you tell us what that is and whether you wrote it?---That would be mine, for setting it up for my accountant.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN476

Yes?---But that is my writing, certainly.

PN477

Okay. So that is your writing. And what does it actually say there, Mr Walsh?---It says "Carols" and exclamation mark.

PN478

All right. And what does that indicate?---That that was the money that I was paid for the Carols engagement.

PN479

Okay. And I draw your attention to the - where it says; "tax instalments deducted, in words". Can you tell us how much there was there?---"Zero thousands, two hundreds, eight tens, eight units, forty cents."

PN480

Okay. And can you read to me - if you look at the, one, two, three, fourth line from the bottom where it says: "General Television Corporation Proprietary Limited Talent"?---Yes.

PN481

Immediately above the word "General" what word do you see there, Mr Walsh?---Employer.

PN482

Thank you. Okay. And we would like to submit this document as evidence in this matter, Commissioner.

PN483

THE COMMISSIONER: Do you intend to go through the other documents that are attached to something you filed called, "Documents in Support"?

PN484

MR NOONE: If necessary, Commissioner. My understanding is that previously we were to provide copies of documents we wished to put into evidence.

PN485

THE COMMISSIONER: Yes, that is right. So you intend to progress through these documents, do you?

**** REGINALD FRANCIS WALSH XN MR NOONE

PN486

MR NOONE: Progress these other documents.

PN487

THE COMMISSIONER: Well, look, if you get through them, you know, without accident, I would rather - these all relate to Mr Walsh, I think, do they not? They all relate to Mr Walsh, do they not?

PN488

MR NOONE: Yes.

PN489

THE COMMISSIONER: Yes. Well it might be easier just to mark them all as one exhibit, if you make it through.

PN490

MR NOONE: Well, if the Commission - - -

PN491

THE COMMISSIONER: Yes, so you are going to proceed through?

PN492

MR NOONE: Yes, well I can present the whole - - -

PN493

THE COMMISSIONER: Keep going, keep going - - -

PN494

MR NOONE: Do you want me to keep going?

PN495

THE COMMISSIONER: Just keep going.

PN496

MR NOONE: Okay. I will present another document to you, Mr Walsh. Can you identify that document for us, Mr Walsh?---Yes it is a group certificate to me.

**** REGINALD FRANCIS WALSH XN MR NOONE

PN497

Could you explain the handwritten notation down at the bottom?---I have written "Hey Hey" there.

PN498

What would that indicate?---Well I would have thought that money would have come from Hey Hey.

PN499

And can you read me the word above "Channel 9 Drama/Talent"?---"Employer."

PN500

Thank you very much. Okay. Can I now submit this document?---Thank you.

PN501

Can you identify that, Mr Walsh?---Yes. It is a '99 group certificate, "Sully Music Australia Proprietary Limited". Signed "Annette Philcott". Yes, I can identify that, certainly.

PN502

Can you identify whether there was any tax paid on this payment?---Yes, $423.

PN503

What work was this for, Mr Walsh?---That would most likely have been work that I have done for Sulivan, Sully Music. I worked with his Big Band, many times.

PN504

Okay. And what would be the approximate size of your payment for Carols by Candlelight at this time?

PN505

MR HATCHER: Well, I object. I should address in the absence of the witness.

PN506

THE COMMISSIONER: Very well. Could you leave us for a moment, please, Mr Walsh. Just wait outside.

<THE WITNESS WITHDREW [12.35pm]

PN507

THE COMMISSIONER: You can be seated, Mr Noone.

PN508

MR HATCHER: I appreciate that there is some latitude granted in these Tribunals but one shouldn't lead the witness in that way. The witness was asked what it was for, he said, I don't know I did a lot of work for Sully - - -

PN509

THE COMMISSIONER: Yes, I see. Yes, all right. Yes, no, I understand. Do you follow, Mr Noone?

PN510

MR NOONE: I am sorry, Commissioner?

PN511

THE COMMISSIONER: Yes. The lead by association in the question, it infers that this is in payment for Carols by Candlelight. So you are leading the witness towards the giving of the evidence that, yes, well this was paid by Sully Music to me for Carols by Candlelight. Does the witness recall for what work that was payment.

PN512

MR HATCHER: Well, the difficulty is, the witness has already answered that question. He said, "I did quite a bit of work for Sully Music".

PN513

THE COMMISSIONER: Yes, well I mean, it could be - well, did you work on different programs. But, whatever, I mean, the question should be open and direct.

PN514

MR HATCHER: Commissioner, in the circumstances, I must oppose any furhter questions because - on what that group certificate related to, because the witness has already answered the question and any further question, particularly given what has fallen from - - -

PN515

THE COMMISSIONER: I don't know - was he asked what that group certificate was payment for? I don't recall that.

PN516

MR HATCHER: Well, it will - - -

PN517

THE COMMISSIONER: It is not my recollection of the sequence of the questioning. I think it went straight to - he said he did a lot of work for Sully Music or something along those lines.

PN518

MR HATCHER: Yes.

PN519

THE COMMISSIONER: And then the question immediately became "What do you normally get paid for Carols by Candlelight?"

PN520

MR HATCHER: That is - - -

PN521

THE COMMISSIONER: There were no intermediate questions.

PN522

MR HATCHER: He was shown the group certificate.

PN523

THE COMMISSIONER: Yes.

PN524

MR HATCHER: He was asked - my recollection was that the question did relate to the document in front of him.

PN525

THE COMMISSIONER: Yes, but his answer - - -

PN526

MR HATCHER: But, in any event - - -

PN527

THE COMMISSIONER: His answer was, "Well, I do a lot of work for Sully Music."

PN528

MR HATCHER: Yes.

PN529

THE COMMISSIONER: So - - -

PN530

MR HATCHER: Whatever question then flows after the - you did the work for - "What did you get paid for Carols by Candlelight?" must be tainted by that suggestion.

PN531

THE COMMISSIONER: Not fatally. Depending on the way in which it is put. If it is - if it is sufficiently direct I will allow it, but I will look at the form of the question when it arises. But I won't rule out the subject entirely of what this payment was for.

PN532

MR HATCHER: If it please.

PN533

THE COMMISSIONER: Mr Noone, ask Mr Walsh to come back, would you please?

PN534

MR SPAIN: It appears, Commissioner, he may be momentarily indisposed.

PN535

THE COMMISSIONER: Yes, very well.

PN536

MR HATCHER: Perhaps, Commissioner, while he is in that position I should formally note that I oppose any of the evidence in relation to Sully Music being admitted as evidence against my client.

PN537

THE COMMISSIONER: All right. That is understood. We will talk about that some other time, then. I just wanted to clarify that a little bit, but come back to that. Yes, go ahead, Mr Noone.

<REGINALD FRANCIS WALSH, ON FORMER OATH [12.50pm]

PN538

MR NOONE: Thank you, Commissioner. Mr Walsh, returning to the document in front of us, which is headed "1999 group certificate" you said you had done various work for Sully Music in that year?---Yes.

PN539

Can you give us - be as specific as you can, examples of what work you did do that would be covered by this group certificate?---It could well be that that - for that year, that includes - - -

PN540

THE COMMISSIONER: Just a moment, Mr Walsh. Mr Noone, you just - you were going really well there, just that last little bit. I was trying to provide you with a reasonable opportunity to examine the witness in light of the objection, but I would prefer it if you didn't take any liberties with the rulings. Up until that last part I thought you were on the right track.

PN541

What work did you do for Sully Music in the relevant time to which this certificate applies?---My memory is that it would - that would cover some jobs that I would have done playing with Peter Sullivan Big Band, which is part of the Sully organisation, and it more than likely covers Carols money as well. I can't see that I would have done that many jobs to justify that 3220 - - -

PN542

So you are uncertain as to precisely what work this payment was for. Well, what work did you do? Can you recall all the work that you did?---Not that - not back that far. No. I am sorry about that.

PN543

Is that fair enough, Mr Noone, or have I trod on your toes?

PN544

MR NOONE: No, Commissioner, I am sorry. I want to turn to this document. Can you identify that document, Mr Walsh?---It is a further Sully Music group certificate.

PN545

Can you indicate whether it indicates whether tax was taken out?---Tax has not been taken out. There is a bulk figure there. A gross figure.

PN546

Can you give us some examples of the work that was done for this organisation in the period covered by the group certificate?---That is the second year that I was booked by Sully Music for Carols. There is obviously another job - one or two jobs in with that. Because the figure for Carols has always been around about, a wee bit over 1000. Up to about 1200, I think, from memory.

PN547

Thank you, Mr Walsh. I would like you to examine this further document. Could you identify that document please, Mr Walsh?---That is a group certificate from the Nine Network Australia, dated 16.2.02.

PN548

Can you - there is a handwritten notation in the lower right hand corner. Is that in your writing, Mr Walsh?---That is my writing.

PN549

Can you explain what that means?---It would indicate that that - considering I did not other work for Channel 9 in that year, that would be a Carols by Candlelight payment. Payment for that work.

PN550

Now, if I can direct your attention to the upper right hand side, upper right hand corner of the document, it says "EMP NO WAL 61". What do you take that to mean?---I guess it is Walsh 61, my employee number. That appears earlier on Channel 9 documents as well.

PN551

All right. Thank you, Mr Walsh?---I thought I saw one there.

PN552

Just two more?---Yes. The 1998 document down the bottom right hand corner, there is a "MU WAL 67".

PN553

Right. All right. Can you identify the document that I have just handed to you, Mr Walsh?---That is a statement of my standing with the Nine Network Superannuation Fund.

PN554

THE COMMISSIONER: I am sorry. Now - I beg your pardon. Do I have - did you file this?

PN555

MR NOONE: Commissioner, I think I filed this particular document on the first part, it is on the back of the Outline of Argument and so forth, rather than the second bundle of documents.

PN556

THE COMMISSIONER: Right. Okay. Well, you might need to give me a copy of that now, for the sake of just making sure the Exhibit has got everything in it. Thank you.

PN557

MR NOONE: I am sorry, Mr Walsh. Can you identify that again for me?---Nine Network Superannuation Fund. Member's personal statement as at 1 August 2002.

PN558

All right. And can you identify if anything has been paid into this superannuation fund on your behalf?---Money has been paid in, and some taken out, I note. I have a net value in that fund of $76.56.

PN559

And can you indicate the period that is covered by that statement?---Date joined employer, 21.12.2001. Date joined fund, 21.12.2001. Date benefits apply, 21.12.2001.

PN560

And can you inform us what work you did for Channel 9 in that period covered by that document?---The only work I did for Channel 9 in that - in the period was Carols by Candlelight, for that year.

PN561

Thank you, Mr Walsh. One more. Can you identify this document, Mr Walsh?---Yes, it is a letter from Channel 9, or GT - General Television Corporation, dated December 2002, and it reads in part, this - - -

PN562

THE COMMISSIONER: Is that 11 December?---11 December 2002.

PN563

Yes?---And it reads, in part:

PN564

Dear Reg, this letter is to confirm your engagement to play trumpet/flugelhorn in the Carols by Candlelight Orchestra for 2002. Set out below are call times for rehearsals and show -

PN565

etcetera. Signed Kate Halliday.

PN566

MR NOONE: All right. Now, Mr Walsh, in all those years at Channel 9 you were working with other people. Is it - - -

PN567

THE COMMISSIONER: Just a moment, Mr Noone.

PN568

MR NOONE: Yes, Commissioner.

PN569

THE COMMISSIONER: First of all, I was a little bit worried about where the question was going to go and whether or not it would draw an objection, simply in the way that you were formulating it. But before we do go wherever you are going, have you moved off the contents of the letter of 11 December 2002? It has been acknowledged by the witness. Do you want to - any other description, because at the moment I would be inclined to mark all of the documents that you have introduced so far, or are there any more that I - - -

PN570

MR NOONE: No, that is the last one, Commissioner.

PN571

THE COMMISSIONER: That is what I understood.

PN572

MR NOONE: Yes.

PN573

THE COMMISSIONER: From the file. There would be all of these and with the addition of the letter - I am sorry, not the letter, but rather the - - -

PN574

MR NOONE: The superannuation.

PN575

THE COMMISSIONER: - - - member's personal statement. I think I will mark them - I would like to change the code, and these will become TN Exhibits at this stage, and this one will become TN1.

EXHIBIT #TN1 BUNDLE DOCUMENTS

PN576

MR NOONE: And that is the whole bundle, Commissioner?

PN577

THE COMMISSIONER: It is the whole bundle. It is all the documents you have examined the witness on so far, will become Exhibit TN1, and for the sake of the convenience of the parties insofar as material has been filed, you filed something called Documents in Support, which was received by the Commission on 10 February. The only addition to that folio is the member's personal statement as at 1 August. So the Exhibit is made up of the cover page, and seven pages. TN1.

PN578

MR NOONE: Thank you. Commissioner, with - I beg your pardon. Mr Walsh, in the period of time that you have been doing these Carols by Candlelight, is it your understanding that the employment arrangements that were made with you - - -

PN579

THE COMMISSIONER: No, no. That is rather inevitably now a leading question.

PN580

MR NOONE: Yes, Commissioner.

PN581

THE COMMISSIONER: And Mr Hatcher is going to police you very carefully on the subject of leading questions, and we could all save ourselves a lot of time.

PN582

MR NOONE: Yes. I think I might leave the examination-in-chief here, Commissioner.

PN583

THE COMMISSIONER: Well, no. I don't want you to get the impression that I want to close off any of your examination which you ask about the subjects that you want to educe evidence about, as freely as you wish subject to objection. I am really just drawing your attention to the fact that the way you formulated that question, it was inevitably going to be leading, and inevitably going to be objected to. You obviously had something in mind that you wanted to enquire into. It is only just a matter of framing the question in an open and direct for the witness.

PN584

MR NOONE: Okay. Mr Walsh, could you compare your employment arrangements in Carols by Candlelight with those of other musicians?---

PN585

MR HATCHER: Well, I object.

PN586

THE COMMISSIONER: Yes. Well, I think that that is objectionable for different reasons. I think what you have to do is sort of first of all go to the witness' knowledge of the subject that you - in a direct way, the subject you want to open up, if you want to pursue it. I beg your pardon. I think if you - if we are moving away from the Exhibits - - -

PN587

MR NOONE: Yes.

PN588

THE COMMISSIONER: - - - to a new subject, I think first of all, you know, it is useful to establish what the witness knows about the subject that you want to ask questions about.

PN589

MR NOONE: Yes. We have discussed your - the nature of the employment - the nature of your employment arrangement for Carols by Candlelight over the years, Mr Walsh. Are you aware of other musicians engaged in Carols by Candlelight's employment arrangements?---

PN590

MR HATCHER: Well, how could he possibly be?

PN591

THE COMMISSIONER: Well, we don't know and I think that is why the question is probably admissible. He may have knowledge. He may have been in a meeting where everybody got out all of their employment records. How do we know?---I would be most surprised if - - -

PN592

MR HATCHER: Well, I object.

PN593

THE COMMISSIONER: To what?

PN594

MR HATCHER: Any answer that commences with "I would be most surprised" must be speculative.

PN595

THE COMMISSIONER: Well, I think we probably need - I will let it go a little bit further and I will strike it out if you are right.

PN596

What do you know?---I am certainly not aware that I am a unique situation.

PN597

Well - - -?---I think the situation - - -

PN598

With all due respect, I don't think that actually answers the question. The question is what knowledge do you have, if any, of other people's employment arrangements?---I am not privy to that.

PN599

Right.

PN600

MR NOONE: Have you seen anyone else's letter of engagement?---No.

PN601

Did you see anyone else - - -?---I know they got them.

PN602

Okay. But just the question we are asking. Have you seen anyone else's group certificate?---No, I haven't.

PN603

All right. That is all I have at this stage, Commissioner.

PN604

THE COMMISSIONER: Thank you. Mr Hatcher?

<CROSS-EXAMINATION BY MR HATCHER [1.00pm]

PN605

MR HATCHER: Mr Walsh, how long have you been president of the union?---Four - four to five years.

PN606

Was there any reason why you weren't available to give evidence in May 2002?---May 2002?

PN607

Yes?---I don't recall being called to give evidence.

PN608

I see. So you know of no reason why you wouldn't have been available when this matter was first before the Commission to give evidence?---No.

PN609

Thank you. Now, sir, you render tax invoices to - or you rendered tax invoices to GTV9 in January 2002 in respect to the 2001 Carols by Candlelight, and January 2003 in respect to the 2002 Carols by Candlelight, did you not?---On request, yes.

PN610

You did. And you have rendered tax invoices in other circumstances where you have been engaged as a musician?---Where I am called to, yes. Yes, sir.

PN611

And on those tax invoices you record your Australian Business Number?---Yes.

PN612

And when you come to complete your tax returns you indicate that those - that that income has been received in your capacity as an independent contractor?---Yes.

PN613

And you claim deductions from the Commissioner for the conduct of your business?---Small, yes. Yes.

**** REGINALD FRANCIS WALSH XXN MR HATCHER

PN614

We all regret the size of our deductions, I can assure you, Mr Walsh. Nonetheless, you present yourself to the Commissioner as an independent contractor in respect to your engagement by GTV9.

PN615

THE COMMISSIONER: You mean the Tax Commissioner?

PN616

MR HATCHER: The Tax Commissioner.

PN617

THE COMMISSIONER: Is that right?---I guess I do.

PN618

MR HATCHER: Yes. Now, you gave some evidence earlier about a - being subject to the directions of Channel 9 in relation to parking. Is the direction that you refer to the direction to be found in the letter addressed to you dated 11 December 2002?---Yes.

PN619

Yes. And when you say that Channel 9 provides a uniform, you simply refer to a shirt with studs?---A shirt and studs. Yes.

PN620

And that is the shirt and studs worn by all performers - - -?---Yes.

PN621

- - - in the Carols by Candlelight performance?---Yes.

PN622

Thank you, sir.

PN623

THE COMMISSIONER: Just, when you actually perform in - is it Carols by Candlelight and Hey Hey It's Saturday, I think are the two - - -?---Yes.

PN624

- - - programs that you have tendered some evidence about in relation to payments you have received. What do you actually do? What do you do? What sort of - - -?---I am a trumpet player.

**** REGINALD FRANCIS WALSH XXN MR HATCHER

PN625

Right. And how do you go about playing the music?---I arrive on call. I am presented with music to be rehearsed.

PN626

Who presents that to you?---Musical Director for the particular show, or his - one of his minions whose appointed to collate. There is a vast amount of music, especially for Carols. It is a - it is a major job, and it is properly set out in order to save on rehearsal time.

PN627

It is professionally developed sheet music?---Yes, yes.

PN628

And, you know, it is printed on, you know, the things that - - -?---Nowadays it is printed on computer.

PN629

Right?---Much more readable.

PN630

And it looks like what I saw when I was trying to learn the recorder at school, does it?---You probably worked from a printed part. We have in the past had to work with handwritten parts, and there are very few highly skilled copyists.

PN631

Right. And so do you have a stand? Do you have a, you know, a music stand of some sort?---Music stand. A music stand with a light, my music laid out in its own folder, and we work through that.

PN632

Are there any other trumpet players?---For the Carols orchestra we use three trumpets, three trombones, four saxophones, percussionists, and a much larger number of strings.

PN633

And so presumably there is a conductor of some sort, is there?---Yes.

PN634

Is that the Musical Director or someone else?---Yes. Yes, sir.

**** REGINALD FRANCIS WALSH XXN MR HATCHER

PN635

And do you rehearse the music?---Yes. Typical situation, Carols, for a show which is probably about two hours, two hours air time, we would rehearse five to six hours one night, into the night, and we would do a dress rehearsal in at the Bowl finally where it is set up, and that call is usually five to six hours long. Then we are called in, in time to settle ourselves and play the show, live to air.

PN636

I take it that - I mean, the conductor keeps the beat. Is that the way it works?---Yes. He is in radio contact with the Director who is calling the camera shots, and the Musical Director needs to know when to - - -

PN637

Or the Video Director?--- - - - start music.

PN638

With the Program Director?---Yes.

PN639

Yes?---Who is calling the camera shots.

PN640

Yes. All right?---That is something I don't know a lot about.

PN641

And you just play the music, is that - - -?---I just play the music.

PN642

Right. And it is as simple as that?---Not - - -

PN643

No, no. Please, don't get me wrong?---The stress is similar - - -

PN644

I mean, for our - - -

PN645

MR HATCHER: Try the trumpet sometime.

**** REGINALD FRANCIS WALSH XXN MR HATCHER

PN646

THE COMMISSIONER: I will give a - yes. I will obviously learn how to play the trumpet. Yes?---The stress is similar to my situation at the moment.

PN647

Yes. No, I meant for the purposes of this enquiry, that is your - what you are asked to do?---That is - - -

PN648

Yes?---That is what I am asked to do.

PN649

There is nothing else?---No.

PN650

All right. Thank you. Mr Hatcher, anything out of that?

PN651

MR HATCHER: Just to clarify one question, Commissioner. They Hey Hey Show finished some years ago, did it not?---Yes, and I was - I missed the last four years with it, I think.

PN652

I see?---They had an image change.

PN653

So it is quite some time since you have done anything other than Carols by Candlelight in connection with Channel 9?---If something happens I will, you know, I get the call, I can do it. I have to maintain my skills, but if the call goes, I would do it.

PN654

And when you say if the call goes, it could be a call to play the trumpet in any performance in any environment?---Yes.

PN655

What other environments - I am sorry. I am probably travelling further now, Commissioner, but I was - - -

**** REGINALD FRANCIS WALSH XXN MR HATCHER

PN656

THE COMMISSIONER: That is all right. No, I haven't closed you off because - I was going to ask those questions, so - - -

PN657

MR HATCHER: If it please, sir.

PN658

THE COMMISSIONER: - - - I took the view that your cross-examination was at an end, and that is why I asked them then, and so - - -

PN659

MR HATCHER: If it please, what other environments do you play the trumpet in?---I have spent a lot of my life playing for international acts that visit Australia. I have worked with Shirley Bassey, Harry Secombe, Glenn Campbell. I have played in the Rudolf Nureyev Ballet Orchestra, slightly out of my depth. I have toured Australia and Asia with Ray Charles. My list - the list of people who I have worked with is substantial, and sometimes I find embarrassing, but it is - I have done a lot of that work.

PN660

And how many trumpets do you have?---I have one trumpet, an ordinary B flat trumpet, and a flugelhorn.

PN661

I see?---I carry them in a double bag.

PN662

And when you say that there are three trumpet players, are they - are the three trumpet flugelhorn players?---They are usually required to double. We call that doubling, playing a second instrument. From memory, in that last Carols, they were asked, we were all asked to play flugel for some of the different pieces.

PN663

And do all three play the same instrument at the same time?---They very rarely - having that sort of facility there, three voices, you would harmonise them.

**** REGINALD FRANCIS WALSH XXN MR HATCHER

PN664

Yes?---It would be bizarre to have them all playing in one voice. A waste of resources.

PN665

And who works out who is doing which?---There is a hierarchy. I am called upon to play principal trumpet. There is a second and third trumpet in the Carols situation, for instance. The parts are written with the player in mind, so it is quite specialised. It is not a matter of all playing one part.

PN666

Yes?---The parts are written - like, written out by the arrangers, which is another skill that I don't have. I play - I sit down and play my parts.

PN667

And when you say they are written with the player in mind, it is specifically for Mr Walsh as opposed to Mr Smith. Or is it for - - -?---It shows up as trumpet 1.

PN668

As trumpet 1? And anyone who was capable of taking the principal trumpet should be capable of playing that script?---Yes.

PN669

Thank you, sir.

PN670

THE COMMISSIONER: Mr Noone, re-examination?

<RE-EXAMINATION BY MR NOONE [1.10pm]

PN671

MR NOONE: Yes, just a couple of issues, Commissioner, if I may.

PN672

You said that at a certain point you started providing tax invoices for your Carols by Candlelight engagements. Why was that?---The request for that number?

**** REGINALD FRANCIS WALSH RXN MR NOONE

PN673

Mm?---In fact the request for that number prompted me to actually apply for an ABN. The implied threat was that if I didn't have that - - -

PN674

MR HATCHER: Well, I object. How can we possibly deal with implied threats and by whom?

PN675

THE COMMISSIONER: Well, that may require some explication?---May I?

PN676

Well, was there anything communicated to you by anybody about this subject that is relevant?---Failure to provide an ABN number means that I would be liable for 48, 49 per cent tax out of my gross figure and on my level of salary I don't have that leeway. So it was threatening. I found it threatening.

PN677

MR NOONE: Mr Walsh, you said that in the Carols by Candlelight you have a stand in front of you and it has got a light on it. Who provided those?---Channel 9.

PN678

That is all, Commissioner.

PN679

THE COMMISSIONER: Sorry?

PN680

MR HATCHER: It is just that last question is begging of a - - -

PN681

THE COMMISSIONER: Well, I don't know that it went anybody's particular way. It just hangs in the air, really, as a perception about tax liability.

PN682

Thanks for your evidence, Mr Walsh - - -?---Thank you very much.

PN683

You are released from your oath and free to come and go as you please?---Thank you.

<THE WITNESS WITHDREW [1.12pm]

PN684

THE COMMISSIONER: Mr Noone.

PN685

MR NOONE: Thank you, Commissioner. From the evidence that we have led from Mr Walsh and the documents in support, what we see is a pattern. With Carols by Candlelight - - -

PN686

THE COMMISSIONER: No, just tell me what you are going to do first - - -

PN687

MR NOONE: Sorry, I thought I was - - -

PN688

THE COMMISSIONER: - - - without just start doing something. I would like to know what it is.

PN689

MR NOONE: - - - having to sum up, Commissioner. We have finished with Mr Walsh and that is the only witness we wish to call and they are the only documents.

PN690

THE COMMISSIONER: Yes, all right. So you are just telling me that is all the evidence you wish to admit.

PN691

MR NOONE: That is all, yes, at this stage, Commissioner, thank you.

PN692

THE COMMISSIONER: Now, I guess what we are left with is what we should make of this evidence and all the other issues that are alive in this matter and you propose to make submissions about that, is that right?

PN693

MR NOONE: Yes.

PN694

THE COMMISSIONER: And use it in order to, as I understand it, to suggest that I should make a finding of dispute.

PN695

MR NOONE: Yes.

PN696

THE COMMISSIONER: And you would tell me what the nature of the dispute is and who the parties were? That is what you are going to do, is it?

PN697

MR NOONE: Yes, Commissioner.

PN698

THE COMMISSIONER: All right. And Mr Hatcher will want to oppose that. I think I should ask Mr Hatcher whether there is any desire on his side of the case to introduce any evidence?

PN699

MR HATCHER: Commissioner, the state of that evidence is such that we would put a no case to answer submission.

PN700

THE COMMISSIONER: All right. So you don't want to call any witnesses?

PN701

MR HATCHER: No.

PN702

THE COMMISSIONER: All right. Well, I think you should put the submissions in writing, Mr Noone, and I would suggest that the parties confer with a view to producing an agreed timetable for you to exchange written submissions and I will reserve my decision subject to those submissions.

PN703

MR HATCHER: Commissioner, we are content of course to deal with the matter now unless that causes Mr Noone any embarrassment. We thought the matter had been fixed to deal with it to finality but in any event that is clearly a matter for the Commission. I might, if it please the Commission, hand up a document that we will rely on so that at least Mr Noone is on notice of it.

PN704

THE COMMISSIONER: All right.

PN705

MR HATCHER: It is an extract of the Superannuation Guarantee Administration Act 1992 and the Commission - - -

EXHIBIT #GH1 EXTRACT FROM SUPERANNUATION GUARANTEE ADMINISTRATION ACT 1992

PN706

MR HATCHER: The Commission will see that we have extracted section 12 which is one of those delightful sections they have in legislation these days that create legal fictions and extend the definition of commonly understood terms beyond their commonly understood meaning. Subsection (1) makes it clear that in this Act "employee" and "employer" have their ordinary meaning. However, subsections (2) to (11) expand their meaning and make particular provision to avoid doubt as to the status of certain persons and the Commission will see subsection (8) deals expressly with musicians. And surprisingly enough subsection (9) deals with the Commission, I think.

PN707

THE COMMISSIONER: Well, it is good that we have got that guarantee. Very well. Now, I would prefer to have the benefit of the submissions in writing, largely for this reason, that I think they will be in a form that will be more convenient for the purpose of deciding the raft of issues that have to be disposed of - - -

PN708

MR HATCHER: It is a matter for the Commission, but the Commission will understand that we will be submitting that whatever be Mr Walsh's relationship it can't give rise to an industrial dispute, R v Staples.

PN709

THE COMMISSIONER: But as I say, Mr Hatcher, I am going to take advantage of your client's diligent investment of resources in this matter by having the advantage of your assistance in setting out the issues for determination of the submissions that you would make in an orderly fashion as to how the Commission should go about deciding the matter and I think that will be of benefit to me and I thank your colleagues for that for the purpose of making the decision. And it is one of the reasons why I prefer to have it in writing, I have to give my attention to many other matters between now and the moment when I am able to turn my attention to the issues and I think having the submissions in writing and on the record is going to be very helpful.

PN710

MR HATCHER: It is clearly a matter in the Commission's hands. I don't wish to be heard - I just make the point that we were available today and tomorrow for - - -

PN711

THE COMMISSIONER: No, I appreciate that and it is fine but in the circumstances I don't think it is going to prejudice anybody because I can't see myself turning my mind to this decision in the immediate future. It will take a few weeks at least before I can start to draft the decision because there are other matters that have to be disposed of in the queue. Thank you, Mr Noone. So if the parties could confer and just let me know what your timetable is, that would be of considerable assistance. Obviously, I think you are going to go first, Mr Noone, and then Mr Hatcher would respond. And I would give you a right of reply. So if you construct the timetable along those lines that would be of considerable assistance to me.

PN712

MR HATCHER: Well, if the Commission could allow us, say, two or three minutes we might be able to inform the Commission of the result of that.

PN713

THE COMMISSIONER: Yes, I think that would be good. I will ask my acting associate to check with the parties in a moment. All right? Thank you.

ADJOURNED INDEFINITELY [1.18pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

REGINALD FRANCIS WALSH, SWORN PN422
EXAMINATION-IN-CHIEF BY MR NOONE PN422
WITNESS WITHDREW PN507
REGINALD FRANCIS WALSH, ON FORMER OATH PN538
EXHIBIT #TN1 BUNDLE DOCUMENTS PN576
CROSS-EXAMINATION BY MR HATCHER PN605
RE-EXAMINATION BY MR NOONE PN671
WITNESS WITHDREW PN684
EXHIBIT #GH1 EXTRACT FROM SUPERANNUATION GUARANTEE ADMINISTRATION ACT 1992 PN706