AG2004/5421, Transcript of Proceedings [2004] AIRCTrans 2738 (16 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 12270

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

AG2004/5421
AG2004/5422
AG2004/5423
AG2004/5424

APPLICATIONS TO TERMINATE AGREEMENTS

Applications under section 170MH of the Act
by McPherson's Enterprises Pty Limited to
terminate the McPherson's Enterprises Pty
Limited (trading as William Brooks & Co)
Enterprise Agreement 2001, 1999, 1997
and 1995

SYDNEY

12.01 PM, WEDNESDAY, 7 JULY 2004

PN1

THE COMMISSIONER: Can I have appearances, please.

PN2

MR A. SALMON: If the Commission pleases, I seek leave to appear in these proceedings. I have with me MR M. DAGG who is the General Manager of my client, MR M. FURLONG who is the Operations Manager and MR S. BOOKER from my firm. Also in this court room is a MR C. FISHER who is the deponent of the affidavit of urgency. If the Commission pleases.

PN3

MR I. MORRISON: If the Commission pleases, I appear on behalf of the Australian Manufacturing Workers Union with MR M. WEST the organiser for the site and also with me today are the delegates from the site.

PN4

THE COMMISSIONER: Is there any opposition to leave being granted to Mr Salmon, Mr Morrison?

PN5

MR MORRISON: Yes, there is, Commissioner. I can take you to reasons if you allow or should be Mr Salmon be given an opportunity first?

PN6

THE COMMISSIONER: Perhaps you can tell me what your opposition is and then Mr Salmon can respond.

PN7

MR MORRISON: Certainly, Commissioner. The AMWU opposes the representation by a solicitor by the applicant today. As the Commissioner is aware, section 42 allows for representation only if A, there is the consent of all parties, and in this case we do not consent, B, if there are special circumstances that make it desirable for such representation, or C, that the party can only be adequately represented by Mr Salmon, and this clearly is not the case.

PN8

We say that the representation for McPherson's are adequate for today's purposes and that leaves us with reason B, the special circumstances. As the Commission would be aware this is a section 170MH application and it requires certain hurdles to be met by firstly the Commission as set out in 170MH(2) and then if either party wished to argue that the termination was contrary to the public interest then that would party has work to do. As I doubt that we'll receive any such argument being put by the applicant, it will be the union's task and the employees if they're required who may be making such arguments against the termination of the agreement.

PN9

We would see it then it would be for the Commission to decide whether those arguments are successful as whether the terminations are contrary to the public interest. We say there is simply no further work for the applicant to do in this application and so we say the special circumstances do not exist for Mr Salmon's representation.

PN10

THE COMMISSIONER: Mr Morrison, are you saying that if and when the matter proceeds to hearing, you're saying the applicant - - -

PN11

MR MORRISON: We'll be making arguments that the such determination would be contrary to the public interest.

PN12

THE COMMISSIONER: I apprehend that. I'm not arguing that you wouldn't be putting that, but are you putting that Mr Salmon's clients would not be arguing in favour? In other words, they've just got to rely on this.

PN13

MR MORRISON: I'm sure they'll be arguing in favour. Whether the special circumstances exist that require the participation of Mr Salmon is what we're saying. We believe that the company itself would be adequately able to make such arguments that may be required.

PN14

THE COMMISSIONER: Thank you, Mr Morrison. Yes, Mr Salmon?

PN15

MR SALMON: Thank you, Commissioner. I make application under subsection 42(3)(b) and (c) of the Workplace Relations Act that I do be granted leave to appear. My grounds and reasons for that application are as follows. In relation to subsection (b) the subject matter of the proceedings, if the Commission pleases, there are special circumstances that I be granted leave to appear. My firm has been involved in protracted negotiations with the union regarding the negotiation of a new certified agreement.

PN16

Commissioner, you're aware that there is a certified agreement that applies to my client's business. The nominal expiry date of that agreement has passed on 30 June. The parties have been attempting to negotiate a new agreement since 18 February 2004 and those negotiations have been protracted. My firm has been involved, and been involved first hand in relation to those negotiations and it is those negotiations that are the central core element giving rise to the section 170MH application.

PN17

There have been, as this Commission is well aware, Federal Court proceedings in relation to the parties at the bar table today which have been the subject of Gyles J before the Federal Court. Those proceedings are still on foot. There have been two applications before this Commission in C2004/3722 which is a section 170LW application in which we appeared and no objection was taken and in C2004/3775, a section 166A, and we were allowed to appear in those proceedings.

PN18

Commissioner, we have had a long involvement in relation to this matter and it would assist the Commission in conducting proceedings under section 170MH for parties to those proceedings to have a clear understanding of the history of the litigation dispute.

PN19

Secondly, Commissioner, the Commission will note that one of the requirements in a section 170MH application is the public interest and there have been a number of decisions of this Commission in relation to section 170MH dealing with the public interest, however it's fair to say that there has been no settled authority in relation to competing decisions that have arisen by this Commission under section 170MH.

PN20

I'm not aware of a Full Bench 170MH matter that gives clear guidance as to matters arising under 170MH and how the public interest is to be conducted, but in any event, if the Commission doesn't accept my submission in relation to that, the very nature of public interest arguments gives rise to complex arguments and I disagree with my friend that we will have no work to do. With respect, we'll have a lot of work to do. We will no doubt be defending an assertion that will be put by my friend that it is not in the public interest to terminate the agreement. We will, by way of evidence and submissions, be arguing that it is not in the public interest to terminate that agreement.

PN21

THE COMMISSIONER: I think you'll be arguing the other way, Mr Salmon, but it's all right. We won't hold you to that.

PN22

MR SALMON: Yes, that's right. We'll be arguing that the agreement should be terminated because it's not in the public interest not to terminate the agreement. Those considerations, those submissions, those matters, involve complicated argument. Commissioner, I note, having looked at previous authorities in relation to section 170MHs, counsel and legal representation appear frequently before this Commission in relation to those arguments. Joy Mining is one example and Geelong Wool is another clear example of that.

PN23

In relation to subsection (c) which goes to the party can only adequately be represented by legal representation, my submissions are that they are complicated proceedings that involve public interest arguments. The employees are being represented by a union in obviously defending the application. The union is a highly resourced organisation that is effectively able to present its case clearly to the Commission. My client on the other hand does not have the resources required to adequately and fairly present its full and proper case to this Commission under this application. As I've submitted in my earlier submissions, there are various authorities on 170MH that demonstrate that legal representation has been allowed.

PN24

Commissioner, I press my application that I be g ranted leave to appear in these proceedings. If the Commission pleases.

PN25

THE COMMISSIONER: Thank you. Mr Morrison, did you want to respond?

PN26

MR MORRISON: My only response is that as far as participation in the discussions, Mr Salmon has not there participating on behalf of a third party; he was there on behalf of the employer. The employer though was there and the employer's representatives was there and I believe that those people who did participate in the negotiations that Mr Salmon mentioned are actually with us today, or if not with us today can be available for later proceedings. We would say the Act says adequately represented. Their participation in the negotiations and the circumstances that led up to this application - they played a very active part so we say they can adequately participate in the proceedings.

PN27

It is not designed to give the best representation money can buy. The only requirement is they can be adequately represented, so we press our opposition to the appearance of a solicitor in this matter.

PN28

MR SALMON: Commissioner, can I just make one observation for the record. I in fact was not present at negotiations, I said my firm was. Mr Fisher was present at the negotiations.

PN29

MR MORRISON: No offence meant on that, Commissioner, I was - - -

PN30

THE COMMISSIONER: I gather that that was the case but I think in view of the circumstances, particularly in relation to these applications, I think that it is appropriate that leave be granted in this case. I've noted your opposition, Mr Morrison, and the arguments you've put but I'm prepared to grant leave to you, Mr Salmon, to appear. They're your applications, there are several of them. The matters have been listed for mention and programming today because there are several issues that need to be addressed, which is why it wasn't listed for hearing today.

PN31

One of the issues that I want to raise, and it may be that Mr Morrison can shed more light on this, I, as you're aware, have an obligation to seek the views of the employer. I think that presumably their views will be put on in due course. I obviously also have to seek the views of other persons covered by the various agreements.

PN32

The union obviously is going to be representing at least some of those employees and that's already been alluded to by both parties, but one of the issues I want to raise is whether or not there are employees who in fact may either not be union members or for various reasons in fact not want the union to represent them. Obviously I think the way the legislation is worded they have to at least be given an opportunity for their views to be made known.

PN33

The question of course is if there are any and if so how I obtain their views. Do I conduct some sort of survey, do I write to them and tell them the matter is on and they can come along and give evidence if they want. Have people given any thought to this?

PN34

MR MORRISON: We have, Commissioner. The Act actually has that you must take such steps as it considers appropriate and I'm aware that there are some employees who do wish to be heard, is the best way I can think of saying it, separate to the union's representation on this matter. I don't know what you would consider appropriate in obtaining those views but we have historically thought the most appropriate way is some kind of ballot or some kind of postal - bearing in mind that some workers work shift work, some are unavailable on leave, they're not participating on the picket line, and I don't know if the Commissioner's aware there actually is a picket line.

PN35

We can't physically contact them ourselves so it might be appropriate I think for some postal ballot or some postal documentation to be sent to those workers. We think that would be the most appropriate way and historically there has been several matters, I'm sure the Commission is aware, and if not I can make you aware of where that ballot process has been used by the Commission to seek those views.

PN36

THE COMMISSIONER: Mr Salmon, have you got any ideas?

PN37

MR SALMON: Commissioner, my client doesn't have a definite knowledge as to who is a union member or not but it does suspect that most of the employees covered by the agreement or agreements in question are members of the union, and accordingly the union would be well equipped to represent the views of the employees. The employees are currently on strike which commenced at 12.01 am on Saturday, 3 July and that goes for two weeks. Perhaps a more appropriate and efficient way of handling the matter is that my client could undertake to inform each employee of the hearing date of the proceedings and - - -

PN38

THE COMMISSIONER: I'm certainly going to require you to serve on all the employees, Mr Salmon, the application.

PN39

MR SALMON: Yes, and if any employee does not want the union to represent them and they wish to make their comments, ventilate any issues they may have, then that forms part of the hearing. Having a ballot would only, in my respectful submission, seek to delay what is in effect an application that is urgent. Attached to the application was an affidavit of urgency.

PN40

Commissioner, we have been trying to negotiate since 18 February and I was before you on 13 May in the section 166A and 170LW proceedings, and I informed the Commission on the record that we are having problems. Those problems aren't getting any better. We are not getting anywhere in relation to these negotiations. We would like the matter to be listed as soon as is practicable by the Commission and in my respectful submission the most appropriate way - I am instructed that the union represents most of the employees.

PN41

If the employees are aware of the proceeding or the hearing date and any employee that wishes to make any submission in relation to those proceedings, they be given notice that they are able to do so and that be dealt with in the hearing. The conducting of a secret ballot, as I've said in my submission, would only seek to delay what is in effect an application of urgency that we have this matter dealt with as soon as possible.

PN42

THE COMMISSIONER: I appreciate your comments, Mr Salmon, but the Act certainly does require the Commission to take steps as I consider appropriate to obtain the views of persons. It's similar wording to the 111AAA - - -

PN43

MR SALMON: I suppose Mr Morrison is in the position to say whether he adequately represents the employees.

PN44

THE COMMISSIONER: Yes, I know, but what I was getting to, my concern is if I definitively knew that every single employee was a member of the AMWU then they can probably adequately represent them and then it would be up to Mr Morrison to call whoever of those members you wished to call or wished to give evidence. I'm not saying that you wouldn't call people. My concern is that there may be individuals who are not members of the union and I'm obliged to at least obtain their views.

PN45

They may all run for the hills anyway and not want to have anything to do with it. I suspect that's probably likely to be the case, but they may very well want to come along. They may give a view supportive of the employer. I don't know what their view is but there's an obligation to obtain their views. What we then do with their views is a separate issue.

PN46

MR MORRISON: Commissioner, can I just add on that and maybe the point wasn't made, there are some members and some non members who actually while not at work are not participating if you like with the union process and have simply gone home but have expressed to Mr West who informs me that they want to have their say, were the exact words that they've used, in support of what has been said. That's why we can't physically go and lay our hands on them at any time. They have, if you like, removed themselves from the process, except to say that they want to have their say, whatever that means.

PN47

THE COMMISSIONER: Can I ask you, Mr Morrison, are there any employees who are not members of the union?

PN48

MR MORRISON: No.

PN49

THE COMMISSIONER: So they're all members of the union?

PN50

MR MORRISON: As far as Mr West is aware, yes.

PN51

THE COMMISSIONER: Okay. So if they want to have their say it seems to me that they can indicate to you or Mr West and in fact they can be called to give evidence during the proceedings. I would've thought that would be the normal way. Presumably people from the company will give evidence about why they want the agreement terminated etcetera.

PN52

MR SALMON: They represent their members, so if all the employees are members they represent their members, they present their case.

PN53

THE COMMISSIONER: Mr Salmon, I've got to obtain the views of persons bound. It might be problematic whether the word "persons" in fact also refers to the union but I don't know that we need to go into debate at this point. Mr West presumably can come along and give evidence as to the union's view, delegates or whatever can give views, but what I'm saying is you can call them if they want to be called, Mr Morrison.

PN54

MR MORRISON: The question is though, and this is where it - it's not a hundred per cent support. While there is a hundred per cent solidarity there is not a hundred per cent support to the position and to the proposal.

PN55

THE COMMISSIONER: What, against terminating the agreement?

PN56

MR MORRISON: Against shall we say the entirety of the proposal and terminating of the agreement.

PN57

THE COMMISSIONER: The company has made application to terminate the agreement. I'm presuming that it will put on evidence in due course as to why that should happen. You will presumably be putting on evidence as to why it shouldn't happen.

PN58

MR MORRISON: Yes.

PN59

THE COMMISSIONER: In other words, why it would be against the public interest to terminate. Now, I have to obtain the views of persons bound by the agreement. Now, it doesn't mean that I have to go and talk to each and everyone. I have to obtain views. Now, if they're all union members, you could find out who wants to give evidence.

PN60

MR MORRISON: Yes, we could go through a process -

PN61

THE COMMISSIONER: I don't want every employee coming along to tell me the same thing but presumably you could call -

PN62

MR MORRISON: Well, with respect, Commissioner, if everyone wants to - - -

PN63

THE COMMISSIONER: If everyone wants to come along, yes, we will go through that process but I don't know that that will add -

PN64

MR MORRISON: But it is still and I think the Commission should recognise, if you have a hearing and they wish to be heard they have a right to be heard. We would not try and promote that ourselves.

PN65

THE COMMISSIONER: That's probably useful. Well, Mr Salmon, it's really a case, I suppose, how to deal with this the most effectively.

PN66

MR SALMON: Commissioner, my client informed its employees on 17 June of this year that it foreshadowed that it may make this application so there's no doubt the employees have been on notice about this application since that time and obviously the union is here.

PN67

THE COMMISSIONER: Yes, but it's still a case of how I obtain their views, Mr Salmon.

PN68

MR SALMON: Yes. My submission is that it would be impracticable, it wouldn't serve the interests of that subsection if you were required in part of your dealing with section 170MH to obtain each and every view of every employee. In previous MH cases, unions who are parties to the agreements, the Commission has held are in a position to represent the interests of their members and it has been the union that has been presenting its case to the Commission.

PN69

If we had a scenario where each and every employee had to be heard on the matter, that would be a ludicrous situation. Perhaps what Mr Morrison may do is give us an indication as to any employee that doesn't support the view of the union and they may appear in their own right if that's not the case.

PN70

THE COMMISSIONER: No, Mr Salmon, it's not up to the union to - just as it's not up to the company to produce an employee who is going to say they don't want the agreement terminated. I don't think it's up to Mr Morrison to find people who will go against him. I've got to obtain the views of persons bound. Now, it seems to me that that can be either done by giving the opportunity to whichever of those persons wishes to come and publicly provide me with their view and obviously if they wish to do that it will have to be that they're subject to cross-examination.

PN71

I'm sure that Mr Morrison will explain that to them. The alternative is that we do some sort of letter to them saying, these matters are listed for hearing on this particular date, do you agree that each - and it would have to be done in such a way because of the fact that there's multiple applications. I mean, I don't know that people would have different views about the different applications but to allow for that possibility it would have to be, if you agree with these applications, tick this box and if you disagree tick that box. I mean, I don't know, but I think at the end of the day they're going to have to be given the opportunity to put their views. Whether it's the public way or whether it's the other way, it doesn't bother me but I have to give them the opportunity one way or the other.

PN72

MR SALMON: Commissioner, my client would be more than happy to have a covering letter to employees in relation to these applications and indicate in that correspondence what these applications are about and the ability of that person to raise any concerns or issues in relation to that matter or those applications. The specifics of how that operates in terms of evidence, I don't know because I've never come across this particular situation arising.

PN73

THE COMMISSIONER: I've only come across it with 111AAAs, the wording is somewhat similar. I'm not suggesting that there's necessarily a connection. Mr Salmon, if it is going to be that some such thing is going out to employees, it's going out under my name. It's not going out from the company. Mr Salmon -

PN74

MR SALMON: Yes?

PN75

THE COMMISSIONER: If anything goes out to employees, it goes out under my name and on Commission letterhead. It's not going out from the company or the union, it's me as a member of this Commission obtaining their views. I don't want any of them and that cuts both ways, I don't want any employees feeling that they're under pressure from either to come up with a view one way or the other. If I'm going to obtain views, it's not going to be much help and I'm not suggesting it would be pressure from the company but it could be either way.

PN76

If it's coming out under my letterhead, the idea would probably be that you, Mr Morrison, and myself come up with an agreed formula, an agreed wording of a letter or if you two can't come up with it I'll decide what it is but in other words, we write to the employees. You'll have to give us their names and addresses. We send out the letters and that. I don't mind which way, whether we do that or we just write a letter to them saying the hearing is on this particular date, if you want to express a view come along.

PN77

MR SALMON: Well, one would have thought again, Commissioner, I made the submission before that the union represents its employees and some employees may not agree with what the union but by the same token, that employee may not wish to present any argument or any evidence or anything of a like to the Commission in relation to these applications.

PN78

Commissioner, my client would be happy to draft a letter and we can have a discussion with Mr Morrison about that. We would seek to do that now. I'm not too sure what matters the Commission has got on this afternoon but -

PN79

THE COMMISSIONER: At 2 o'clock I've got some safety net matters.

PN80

MR SALMON: Yes, we could draft an appropriate letter and deal with it that way Commissioner.

PN81

THE COMMISSIONER: So in other words adjourn the proceedings for half an hour or so and then -

PN82

MR SALMON: Yes. That of course leaves all the residue of the hearing date and so on and so forth. Commissioner, my instructions are that this matter would probably take one to two days. We have two witnesses who we would wish to call.

PN83

THE COMMISSIONER: Could I just ask, Mr Salmon, did you intend to put on some affidavit evidence beforehand or lead evidence from the witnesses in the -

PN84

MR SALMON: We're happy to lead evidence through witnesses if that means that we can get an earlier hearing date, Commissioner.

PN85

THE COMMISSIONER: So two witnesses and you said one to two days, did you?

PN86

MR SALMON: One to two days.

PN87

THE COMMISSIONER: Two days probably to be on the safe side.

PN88

MR SALMON: Yes.

PN89

THE COMMISSIONER: Mr Morrison, in relation firstly to the issue of just adjourning the matter so that Mr Salmon can come up with some letter that then obviously is discussed with you, as I say, if there's not agreement on what's to go in that document, then I'll decide what does go into it but are you available - well, I'd like you to be available for that purpose please.

PN90

MR MORRISON: Today?

PN91

THE COMMISSIONER: Yes.

PN92

MR MORRISON: I should be able to. I can make a few phone calls, Commissioner.

PN93

THE COMMISSIONER: Thank you. So that we can settle what will go to the employees and then what - leaving aside obviously any employees who then say they want to come back.

PN94

MR MORRISON: Yes, and I couldn't even speculate on that.

PN95

THE COMMISSIONER: We can't figure out how many they are but are you aware of how many people you would be -

PN96

MR MORRISON: At this stage, I've only had preliminary discussions with Mr West on it but I have in the back of my head about five witnesses from our side. There is, we believe, a case for - certainly some documentations to be filed prior to any hearing because there are certain matters raised in the application that we can't, we feel put our case unless they're expanded by actually supporting documentation. Issues of the viability of the company, that's been raised as a driving issue and yet we only have the company's words for that and we would be requiring some documentation to support that claim and there are other matters which I think we'd need to be addressing principally in affidavits and with appropriate reply. If Mr Salmon doesn't want to put his material on in affidavit form it's going to be a bit - - -

PN97

MR MORRISON: Well, it is going to be impossible for us to prepare and it could make the two day hearing extremely difficult where they are alleging some financial difficulties caused by the current agreements and the past agreements and yet we just basically don't believe them.

PN98

THE COMMISSIONER: Well, Mr Morrison you mightn't believe them but presumably you will be able to cross-examine whoever the persons are about the viability. They will be available for cross-examination so you will be able to cross-examine them about that.

PN99

MR SALMON: Does the Commission have a time in mind, or a date in mind, in relation to hearing these applications.

PN100

THE COMMISSIONER: Well, it is a case of working out when the letters can go out to the employees, which presumably could be either the next day - how many employees are we looking at?

PN101

MR SALMON: There are 53 casual employees and 61 permanent employees.

PN102

THE COMMISSIONER: Yes I thought about the hundred, so a bit over a hundred then from memory.

PN103

MR MORRISON: 114.

PN104

THE COMMISSIONER: 114 is it, right. So presumably with word processing facilities these days that's not as big an issue for that. So presumably they could go out over the next day or say. I mean I want people to have - they would need at least a week to be able to give consideration as to whether they want to have a view so obviously then it is really a case of how long it takes, and then getting just two days, presumably you want two days together.

PN105

MR SALMON: Yes Commissioner if that's possible.

PN106

THE COMMISSIONER: So I think in reality you are into August because I know I had to move a matter earlier this week and the only two days together were 22 and 23 July which has now gone.

PN107

MR MORRISON: Commissioner I have an unfair dismissal hearing in Canberra for three days at the end of July.

PN108

THE COMMISSIONER: The week starting 16 August is the first week I've got two days together. I've got sort of one day in one week, and one day in another week but basically the week starting the 16th but not the 16th.

PN109

MR MORRISON: Commissioner I'm available those days I should be finished the State wages case matters that I'm appearing in by those dates.

PN110

THE COMMISSIONER: So 17 August onward.

PN111

MR MORRISON: The 17th onward I am definitely available for any two days at this stage until we get into September, I'm not available in September.

PN112

MR SALMON: Commissioner, do you have two single days that aren't together in the month of July that we might be - - -

PN113

THE COMMISSIONER: Well, I do but I think it would be best to have them together Mr Salmon. I thought that's what we just spoke about. Because I think the matter is going to be fragmented enough as it is without having it split up. I know that your client is pushing for this to happen early but with all due respect I can't wave a wand.

PN114

MR SALMON: No but we can have the hearing dealt with on two separate days and it may well be that the evidence is heard all done and dusted so to speak on one day and then the next available day can be for submissions.

PN115

THE COMMISSIONER: I would thought that it is unlikely Mr Salmon. I mean the first day is 30 July which is a single day on a Friday, then I've got nothing the following week. The next day I've got Friday 13 August which is in fact the immediate week before the week I'm offering you two days together. So I don't know that anything is going to be achieved by splitting it.

PN116

MR SALMON: I'm instructed that August 17, the two days - - -

PN117

THE COMMISSIONER: So either 17, 18, or 18, 19, or 19, 20. I don't mind. 17, 18?

PN118

MR SALMON: 17, 18 thank you.

PN119

THE COMMISSIONER: So make it that the hearing would be 17 and 18 August. Now, given that I could probably, and it probably would be more appropriate to give the employees say two weeks to consider because it is probably not going to make any difference and that way they've got a little more time to get their thoughts together, so the letter whether it goes out tomorrow or Friday, it would be giving them two weeks from that time, whatever date.

PN120

MR MORRISON: Date of receipt can I suggest Commissioner?

PN121

THE COMMISSIONER: Two weeks from date of receipt? I'd be hesitant to do that because then we would get into debates as to whether people got it on the Wednesday because I was fishing on the Tuesday or something like that.

PN122

MR MORRISON: Perhaps close of business on the Friday that ends the week.

PN123

THE COMMISSIONER: Yes so it would probably be the close of business on the 23rd, wouldn't it? I won't put close of business in the letter because that would be very confusing. If I say 5 pm on 23rd is probably the best thing. I think everyone can understand what that means and that would be for them to indicate whether or not they want to come along or they want to tell me their views and can I say as we are going to go down that path, if people are going to give me those views, I suppose it is a case of how we deal with that material. In other words do either of you get access to it is what I'm getting to, that's one of the concerns.

PN124

MR MORRISON: Well, that's the point I was coming to Commissioner. I have a concern because, without indicating any fracture in the union's solidarity, they may wish to express an opinion contrary to the union's position and say - - -

PN125

THE COMMISSIONER: Yes but they have got their right to express their view Mr Morrison.

PN126

MR MORRISON: Whether they come through us, or through either party or whether they should indicate their position that they wish to be heard directly to your associate or to yourself. I think directly to you would be the most appropriate way forward. I mean I don't know, if you have a different opinion we are happy to handle that side of it because they are all members but - - -

PN127

THE COMMISSIONER: I don't know, have you got a view Mr Salmon?

PN128

MR SALMON: I don't necessarily have a view on it. What I would like to do is draft a letter and those issues may arise when we are going through the drafting about how is the best process to deal with this.

PN129

THE COMMISSIONER: That might be the best Mr Morrison.

PN130

MR SALMON: What I would like to do is obviously draft the letter and those issues may be ventilated as we are going through the letter, to work out the best process of doing that.

PN131

THE COMMISSIONER: Yes, but maybe have it in the back of your mind, both of you, when you are looking at that because they might be issues that - you know I don't want to put people in an invidious position. The other thing which is really an issue for submissions rather than anything else, I apprehend could be an issue, I notice that one of these agreements would have been made under previous legislation judging by the date of it.

PN132

MR SALMON: Yes the 1995 agreement.

PN133

THE COMMISSIONER: Whether or not there is an issue I can't recall off the top of my head, I think the Geelong wool combing ones might have been dealt with there, but just bear in mind whether or not there is an is an issue about whether MH applies to earlier agreements. I can't recall.

PN134

MR SALMON: Commission certainly when making these applications we did note that very issue. If there's anything that does arise maybe that's something that can be dealt with in the substantive proceedings.

PN135

THE COMMISSIONER: Yes, it was just an issue that came up in my mind. I'm not suggesting that there would need to be evidence about it, it's a matter of submissions that either MH does or doesn't apply to those earlier agreements. It's just the others I think are all post Workplace Relations Act so presumably there's jurisdiction to do it, whether I do it or not is another thing. Do you want to adjourn for say half an hour and then you could let my associate know if that's sufficient time? As I say I do have matters at two but they are safety net matters so I apprehend they would probably be relatively quick although one never knows. Thank you, matter is adjourned briefly.

NO FURTHER PROCEEDINGS RECORDED [12.40pm]