BP2004/2755, Transcript of Proceedings [2004] AIRCTrans 1255 (2 April 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 6511

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

BP2004/2755
BP2004/2756
BP2004/2757

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Applications under section 170MW of the Act
by TXU Group of Companies and Others for
orders to terminate or suspend bargaining
periods in BP2003/7166, 7168, 7169, 7180,
7188, 7228, 7230, 7232, 7233, 7372, 7373,
7374, 7375

MELBOURNE

9.05 AM, TUESDAY, 23 MARCH 2004

Continued from 18.3.04

PN1096

THE COMMISSIONER: Yes.

PN1097

MS MACLEAN: Commissioner, I have assured your associate and my learned friend, Mr Borenstein, that I won't make any ex parte applications this morning to terminate the bargaining period or do anything else. Commissioner, there has been a bit of correspondence flowing to the Commission and to the parties. The upshot of the proceedings is this, that my learned friend Mr Borenstein and I have agreed, subject of course to the Commission's views, that today ought to be - the matter ought to be stood done. That is for a couple of reasons. Firstly - - -

PN1098

THE COMMISSIONER: For the whole of the day, Ms Maclean?

PN1099

MS MACLEAN: Yes, for the whole of the day, Commissioner, and I will explain why in a moment. Firstly, as you know, Commissioner, the batting order that we informed the Commission of last week was subject to TXU having a decision or an indication at least from the Commission as to the ruling on their preliminary point. We understand from correspondence received from the Commission that that regrettably hasn't been possible and so that caused us to have to call on the interchange bench if you like and bring Powercor forward and my learned friend Mr Borenstein and for our part as well, we are simply not in a position to get Powercor ready to present any evidence to the Commission today and my learned friend - I suggested that we stand it down until 2.15 and Mr Borenstein has indicated he wouldn't be in a position to deal with them even if that accommodation was allowed.

PN1100

So given that the position that we have reached in relation to section 170MW(3) will considerably shorten the proceedings and the Commission has then informed at least in relation to SPI Powernet, and that position will in all probability obtain for the other companies, that there will be no reliance or no orders sought to be made by the Commission under that section. It is important to the applicants that the Commission is able to receive the most substantial and compelling grounds for making orders under this particular provision and upon a review of the material that we had at our disposal it was clear that the material that we could rely on under sub-section 3 was not of that character, and we don't want to waste the parties' time or the Commission's time by advancing evidence which is not going to be of assistance to the Commission.

PN1101

Having said that, if the position changes and regrettably there is a basis for reliance on sub-section 3, then the Commission will be immediately informed of that. So the position is, Commissioner, that today we would ask - and we have the agreement of our learned friends - that the matter be stood down. If we could start in the morning. If the Commission is in a position to give an indication over the course of today of its position in relation to TXU, that would be of assistance. Otherwise we will get going with Powercor in the morning and do it that way. Given that, as I indicated, the Commission will now be occupied over a considerably shortened period of time, I have a request from Mr Borenstein and from us as well if we could start at 9.30 in the morning, Commissioner.

PN1102

THE COMMISSIONER: Yes, certainly, that is fine.

PN1103

MS MACLEAN: If that would not be too inconvenient. I anticipate that we will be able to get through the evidence of at least two companies, perhaps the whole of the evidence, in the days we have available. We will certainly finish the matter in the days that have been allocated by the Commission. So if the Commission pleases, those are the matters, if the matter could be adjourned until 9.30 in the morning.

PN1104

THE COMMISSIONER: Thank you, Ms Maclean. I understand that there was correspondence directed to me yesterday - - -

PN1105

MS MACLEAN: Yes, there was, Commissioner.

PN1106

THE COMMISSIONER: - - - on these matters. Now I am sorry, I have either not - I think I have seen the correspondence but I didn't read it properly. At the time I had an unfair termination arbitration on remedy yesterday morning and then I was - - -

PN1107

MS MACLEAN: Well that is enough to take anyone's focus.

PN1108

THE COMMISSIONER: - - - endeavouring to get my head around this other matter yesterday afternoon. So I apologise for not addressing this issue a little earlier.

PN1109

MS MACLEAN: Commissioner, no, the correspondence certainly asking for the matter to be stood down would have arrived in the Registry reasonably - well, certainly after the Registry had said good night for the evening. So, no, there is nothing - no inconvenience caused, Commissioner, and - - -

PN1110

THE COMMISSIONER: Yes, probably, Ms Maclean, it would be useful for parties to have fax numbers of - well I don't have an individual fax but I have a fax on my floor which - - -

PN1111

MS MACLEAN: That would be of great assistance, Commissioner.

PN1112

THE COMMISSIONER: - - - means it doesn't go through the Registry and I was here last night until a little after six.

PN1113

MS MACLEAN: Yes, well having worked here - well, a long time ago, Commissioner, but having worked here I know that the Registry certainly wouldn't have been buzzing at that time. So I think that perhaps if we could ask your associate for that fax number in case of other correspondence we might need to send, that would be of great assistance.

PN1114

THE COMMISSIONER: Good, thanks, Ms Maclean. In terms of the application to adjourn the matter until 9.30 tomorrow morning, certainly I agree with that and the matter will be adjourned until 9.30 tomorrow. That will give me a day now to work on the TXU decision.

PN1115

MS MACLEAN: Yes.

PN1116

THE COMMISSIONER: I am afraid I can't give you an undertaking and I know you are not expecting one but I will do my best to have a decision for the parties as soon as possible and it is possible, possible but I wouldn't put it on the basis of most likely, that it will be available tomorrow morning.

PN1117

MS MACLEAN: Commissioner, even if you were in a position not to deliver written reasons, but could give some extempore indication to the parties, that would be of assistance. But certainly we don't want to put any pressure on you, Commissioner, and don't seek to do so. We want to give you a proper opportunity of course to consider what is an important question and if you are in a position to do that, well that would be of assistance. If not, there is an alternative plan in place.

PN1118

THE COMMISSIONER: Good, Ms Maclean. We will do our best in that regard.

PN1119

MS MACLEAN: Thank you, Commissioner.

PN1120

THE COMMISSIONER: Is there anything else we need to deal with this morning?

PN1121

MS MACLEAN: No, Commissioner, I think that is it for today.

PN1122

THE COMMISSIONER: Good, this matter is adjourned.

PN1123

MS MACLEAN: Thank you.

ADJOURNED UNTIL WEDNESDAY, 24 MARCH 2004 [9.13am]