D2003/37, Transcript of Proceedings [2004] AIRCTrans 3353 (27 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8249
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

D2003/37

APPLICATION FOR ALTERATION
OF ELIGIBILITY RULES

Application under section 158(1) RAO
Schedule by Australian Municipal
Administrative, Clerical and Services
Union to alter eligibility rules

MELBOURNE

9.05 AM, TUESDAY, 17 AUGUST 2004

Continued from 4.8.04

THESE PROCEEDINGS WERE CONDUCTED BY VIDEOCONFERENCE AND RECORDED IN MELBOURNE

PN465

THE SENIOR DEPUTY PRESIDENT: Any change in appearances?

PN466

MR HEDDLE: Not in Sydney, your Honour.

PN467

THE SENIOR DEPUTY PRESIDENT: All right. Yes. What is the situation, Mr Nucifora?

PN468

MR NUCIFORA: Thank you, your Honour. Your Honour will recall the last time was before you the 4 August, and I am just referring to transcript there, a couple of questions that remained outstanding. One of them that - the ASU was - as the applicant, was - had committed to getting back to you before Friday last week in relation to a proposed - or a potential application for joinder of this application with another application in D2003/3 of - a CEPU application to change their rules in relation to call centres.

PN469

We can confirm that, as I have by e-mail to your office and to all of the parties of this matter, that we will not be pursuing an application for joinder, or having the two applications heard together in any way, shape or form. We will proceed separately, and I think - my understanding is that that was the preference of all the other parties in both matters, in any case. So I don't think there is any problem with that. We just seek to confirm that.

PN470

Your Honour, arising from that, there was a position outstanding from last time in relation to proposed directions, and the procedure that the parties ought follow in this matter. If I may - sorry, before I go to that, I just might explain that there have been further discussions with the CPSU. We are getting closer to agreement in principle, although I have no written documentation at this point, but we would seek to, in time, consolidate that in a form of an agreement between the two - between the CPSU and in our union, in relation to their objection to this application.

PN471

I mentioned at the last hearing that there was correspondence from the Shop Assistants Union, the SDA. They have written us a letter that would form the basis of an agreement, and once we confirm our position in response to that, and we have no problem in principle with what they are putting, that we believe that that objection would be settled. And I think that is probably indicated by the non-presence of those organisations today, although I haven't discussed whether they were going to be here today or not. And I don't believe their non-appearance today in any way prejudices their position.

PN472

And at some stage we would be seeking to, of course, hand up settlements between the SDA and ourselves, and the CPSU, and the ASU. And I would think that that would be quite early in proceedings. That would be certainly before the proposed directions that we have put here, or simultaneously. Your Honour, if I may hand up an amended proposed directions as we would prefer - - -

PN473

THE SENIOR DEPUTY PRESIDENT: Sorry, what is left outstanding? You have got the Optus objection?

PN474

MR NUCIFORA: The Optus objections and the CEPU objections.

PN475

THE SENIOR DEPUTY PRESIDENT: CEPU objections.

PN476

MR NUCIFORA: I am not - - -

PN477

THE SENIOR DEPUTY PRESIDENT: Where is the CEPU today, do you know?

PN478

MR NUCIFORA: Your Honour, I haven't - apart from sending on the various e-mails to the parties, I haven't had any communication with the CEPU. In terms of the other matters that we were going to proceed with today, my understanding was from the last hearing, that they were supporting the submissions put generally by Minter Ellison on behalf Optus, as the remaining objectors. But I am otherwise not aware of any further communication from CEPU. So it really leaves the CEPU and Optus as the remaining objectors, where there hasn't been any sign of a settlement.

PN479

THE SENIOR DEPUTY PRESIDENT: Yes.

PN480

MR NUCIFORA: Your Honour, if I may now hand up a copy of proposed directions. I just wanted to check that Mr Heddle has a copy of that? I believe it is - - -

PN481

MR HEDDLE: Is that the document that was annexed to the e-mail that you sent a little before 8.00 am this morning?

PN482

MR NUCIFORA: Yes, and I will just - yes, it is.

PN483

MR HEDDLE: I have a copy of that.

PN484

MR NUCIFORA: Your Honour, I will just double check to make sure that they are the same documents before we tender them as an exhibit. In exhibit ASU9 we had similar provisions with a now slight amendments to 1 and 2 in relation to the wording used there. And then 3 and 4 in terms of the date. But what we are seeking is now the objectors to file and serve summaries of contentions, witness statements and documents to be relied on by 30 October 2004. That is in 1. And item 2:

PN485

Applicant to file and serve summary of contentions, witness statements and documents to be relied upon by 10 November 2004.

PN486

In item 3:

PN487

Objectors to file and serve any statements and documents in reply by the new date, now 17 December 2004.

PN488

And then in item 4:

PN489

The matter then listed for further direction on or after 17 December 2004 on a date which is suitable to the Commission and the parties.

PN490

Now that is consistent with the position that we put - not at the last - or we did put it at the last hearing, but we certainly raised it at the hearing before. We were seeking to have at least formal submissions from all parties lodged before the end of year. That 17 December is getting close to Christmas, so we would certainly like to have directions on that date, but we know that there are certainly pressures on all parties, and if there is a need to change that date, then we are flexible on that.

PN491

But I think in terms of those four items, my understanding, with having spoken to Mr Heddle yesterday on previously - in the matter before, that that is probably now common ground between at least ourselves and the other parties have not objected to those - the set of directions. That is in particular the CPSU and the SDA and my understanding of the CEPU, as I indicated earlier, were supporting the submissions of Optus in relation to the proposed directions, except for one question.

PN492

That is the first question that - first item that came up in Optus - exhibit OPTUS1, that was an attached set of directions - proposed directions put by Minter Ellison on behalf - Mr Heddle - sorry - on behalf of Optus. And the only difference there is in one where at the end of the last proceedings you would recall, your Honour, that there was some debate about whether the ASU was the applicant, and needed to make some preliminary submissions in response to the contentions raised by Optus. Your Honour, what I was seeking to do - if I may, subject to what Mr Heddle has to say, tender that set of proposed directions as an exhibit.

EXHIBIT #ASU10 AMENDED PROPOSED DIRECTIONS

PN493

MR HEDDLE: No objection to that, your Honour.

PN494

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Heddle.

PN495

MR NUCIFORA: Your Honour, we would suggest that they ought now be the proposed directions of subject to the debate, that we need to have, and your directions in relation to item 1 of Optus, exhibit OPTUS1. And in relation to that, if I may - - -

PN496

THE SENIOR DEPUTY PRESIDENT: Well, there is Mr Heddle - you, Mr Heddle maintain your position in relation to item 1 of your proposed directions, OPTUS1?

PN497

MR HEDDLE: Your Honour, we would press for that direction, yes.

PN498

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Yes, Mr Nucifora.

PN499

MR NUCIFORA: Yes, just briefly, your Honour. We mentioned at the last hearing on 4 August that we would be opposed to item 1 and we don't believe that we are obliged to provide the sort of response to - or submissions that Optus were seeking. We believe that since we have had section - certainly 204 matters, and now schedule 1(b) matters, that the procedure has been quite clear. And what I was seeking to do was to table as an authority, a decision of Senior Deputy President Williams at re ANF. I have e-mailed reference to this authority to Mr Heddle. I am not sure if he has actually got a copy there with him.

PN500

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that, Mr Heddle?

PN501

MR HEDDLE: We do, your Honour. I haven't had a chance to look at it as yet.

PN502

MR NUCIFORA: I will take Mr Heddle to - and your Honour to parts of the decision that we are referring to - or that we are relying on in this matter. Your Honour, the authority relates to an application by the Australian Nursing Federation in C No 30029 of 1998, a decision of Senior Deputy President Williams on 8 July 1999, and the print number is R7043. It refers to there in paragraph 1, if I may quote, at the last sentence, his goes:

PN503

To the first step involving these directions required each outstanding objector to file and serve specified material on or before 5.00 pm on Tuesday, 6 July 1999.

PN504

And in paragraph 2, the HSUA, who were the objector in this matter, were suggesting in the last paragraph that the rule change was vague and ambiguous and uncertain, and that it ought be struck out so that pursuant to section 111(1)(g). At the end of the hearing his Honour goes on to say in paragraph 4, if I may quote:

PN505

The HSUA has applied for the ANFs application in this matter to be dismissed on the grounds that the further proceedings are not necessary or desirable in the public interest.

PN506

He then goes on to say in 5, that he rejects the application of the HSUA and he then goes on to his reasons. In paragraph 10 he refers to, in the last sentence:

PN507

Similarly, because as an objector, the HSUA was being required to puts its case first, it was being placed in a procedurally unfair position because it was unable to identify the class or group of persons who would be covered by the proposed alteration.

PN508

Now he was going to what the HSUA arguments were. But then he goes on to say in paragraph 13, in the last sentence on page 3 of 6:

PN509

In general an applicant for consent to an eligibility rules alteration is entitled to frame its proposed alteration in the manner in which it sees fit. Of course when the time comes for determining whether or not to grant the consent, the proposed alteration is to be construed objectively.

PN510

Now he goes on in paragraph 15:

PN511

The HSUAs contention of procedural fairness appears to me to be essentially based upon the requirement in registration eligibility matters that ...(reads)... from the task faced by the applicant.

PN512

And then at 16, if I may quote, paragraph 16:

PN513

Nor is the new position to that ...(reads)... of its understanding of those details.

PN514

And he goes on to say:

PN515

In accordance with the directions issued on 26 April 1996, it will then be provided with the applicant's case, and will have the opportunity to file and serve ...(reads)... is too vague and ambiguous.

PN516

And paragraph 17, he goes on to say:

PN517

For the above reasons I was of the view the HSUA application was premature.

PN518

Your Honour, that decision was then appealed by the HSUA, and went to a Full Bench in print R9776. If I may table a copy of that decision, and if my friend Mr Heddle has a copy of that.

PN519

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that, Mr Heddle?

PN520

MR HEDDLE: I do, your Honour.

PN521

THE SENIOR DEPUTY PRESIDENT: Yes.

PN522

MR NUCIFORA: Your Honour, in short the Full Bench there found in favour on all points of his Honour Senior Deputy President Williams, and in particular I refer you to paragraph 5 on page 2, the third dot point, in particular. And if I may quote:

PN523

In dismissing the application, the Senior Deputy President emphasised the following matters.

PN524

And on the last dot point:

PN525

The procedure of requiring objectors to put their case first is well established ...(reads)... and is not unfair.

PN526

And they go on to say in paragraph 8, that put another - if I may quote, sorry, the third sentence from - sorry - the fourth sentence from the bottom of paragraph 8, if I may quote:

PN527

Put another way, the Deputy President's approach is supported by Full Bench authority.

PN528

So they found in favour of Senior Deputy President Williams on all counts, and we say, your Honour, that is front and square in relation to the obligations of the applicant and the objector, and we say, your Honour, we have responded to earlier in proceedings in relation to the Optus seeking for the ASU as the applicant, to respond to their contentions. And we continue to reject all of those contentions. And we believe that the procedure we are following here is a procedure that is followed not only before matters that have been before Senior Deputy President Williams, but other members of the Commission, including yourself, your Honour. And we would say that there is no - as a result of these authorities, it is not procedurally unfair to pursue the directions as we have outlined in exhibit ASU10. If your Honour pleases.

PN529

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Nucifora. Mr Shaw, you now appear, do you, for the CEPU?

PN530

MR SHAW: Yes, your Honour, I apologise for my late arrival.

PN531

THE SENIOR DEPUTY PRESIDENT: Yes. Do you wish to say anything at this stage? Mr Nucifora has provided us with a new proposed set of directions marked ASU10.

PN532

MR SHAW: Yes, I did receive those by e-mail this morning.

PN533

THE SENIOR DEPUTY PRESIDENT: And are you familiar with the authorities that he has just referred to in relation to the procedural aspect? Did he provide you with those or tell you of those?

PN534

MR SHAW: I was handed one by your Associate. But beyond that, no, I am not.

PN535

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps I will hear from Mr Heddle and you will have an opportunity - - -

PN536

MR SHAW: Yes, thank you.

PN537

THE SENIOR DEPUTY PRESIDENT: - - - to examine those.

PN538

MR HEDDLE: Thank you, your Honour. Perhaps I might first deal with the exhibit ASU10. I can confirm that the directions numbered 1 through to 4 in exhibit ASU10 mirror the directions sought numbered 2 to 5 in exhibit OPTUS1.

PN539

THE SENIOR DEPUTY PRESIDENT: Yes.

PN540

MR HEDDLE: And despite the fact that there has been a little delay while the ASU has considered whether it wished to make the joinder application that was mentioned on the last occasion, we are content to proceed on the basis outlined in exhibit ASU10, subject of course to the debate about the additional directions sought in exhibit OPTUS1. In relation to proposed direction 1 in exhibit ASU10, I simply refer to the comments and observations that we made in paragraphs 1A and 2 of the letter from Minter Ellison dated 9 July 2004 to Mr Nucifora, which formed part of exhibit OPTUS1, which set out our position in relation to summaries of contentions at this stage.

PN541

There may be a separate issue as to whether it is appropriate for there to be an outline of submissions as to fact and law, to be filed by the parties prior to the hearing in the matter, but in our view, it is appropriate for consideration of that issue to await the filing and the serving of the evidence. And if it is then considered appropriate to deal with a preliminary outline of submissions as to fact and law, that is something which can be dealt with at the directions hearing later in the year in the context of the fixing of a date or dates for the hearing and determination of this matter.

PN542

I simply again refer to paragraphs 1A and 2 in our letter, which set out our position insofar as a summary or outline of contentions is concerned. And I recall that on the last occasion, Mr Nucifora himself acknowledged that the objection that has been filed and served by Optus in this matter is significantly more comprehensive than might ordinarily be the case. And in our view, sets out in sufficient detail, the nature of the objections raised by Optus to the application made by the ASU in this matter.

PN543

It might be appropriate to add one further direction if your Honour considers it appropriate, and that would simply be dealing with any liberty to apply, should it become necessary to do so between now and December. That is more a facilitative issue rather than something of substance, but they are the only comments that I have to make about ASU10, and the directions set out in ASU10.

PN544

Insofar as the additional direction sought by Optus is concerned, that was direction or proposed direction numbered 1 in exhibit OPTUS1. And it was the subject of some submissions on the last occasion, your Honour, but given the nature of the matters that were being debated on that occasion, we did not have to conclude the submissions that we wanted to make about that matter. Your Honour might recall that on that occasion I took your Honour to both the notice of objection, which had been filed and served by Optus and the reply, which had been received from the ASU, a letter dated 11 February 2004, in response to that notice of objection, in which the ASU simply put all grounds of objection in dispute on the basis that they were rejected in their entirety.

PN545

And I had started to take your Honour to some of the particulars set out in optus's notice of objection to, on one basis, start to explain why we felt that it was necessary to have the ASU better explain its position in the matter, and the basis for its rejection of the various grounds of objection. I rely on what was said on the last occasion, but there were some additional particulars that I did wish to take your Honour to on that occasion, simply to further explain the basis for the notice of objection for seeking the direction that we seek. And if your Honour has Optus's notice of objection handy.

PN546

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN547

MR HEDDLE: If I can, for example, simply take your Honour to objection 4 and the particulars that then follow. On page 4 of the notice of objection you will see that in particular 11, various representations made to the Optus group by the CEPU about a number of matters I referred to, particular 11 - - -

PN548

THE SENIOR DEPUTY PRESIDENT: 11, was it, Mr Heddle?

PN549

MR HEDDLE: Page 4, your Honour, particular 11.

PN550

THE SENIOR DEPUTY PRESIDENT: Yes.

PN551

MR HEDDLE: Particular 12 refers to various industrial disputes that have been notified to the Commission by the CEPU. Particular O refers to a number of factual assertions in relation to the ASU. For example in subparagraph (i), it is asserted that the ASU has never - - -

PN552

THE SENIOR DEPUTY PRESIDENT: I am sorry, Mr Heddle, you have actually lost me there; we were on page 4(xi), page 4, Roman 11.

PN553

MR HEDDLE: And then (xii)

PN554

THE SENIOR DEPUTY PRESIDENT: (xii), yes.

PN555

MR HEDDLE: It is to do with representation - - -

PN556

THE SENIOR DEPUTY PRESIDENT: On page 5 you are referring to, I see, yes.

PN557

MR HEDDLE: That is correct, your Honour.

PN558

THE SENIOR DEPUTY PRESIDENT: Yes, I am sorry, yes.

PN559

MR HEDDLE: Page 5 and then (i) talks about the position adopted in relation to awards binding the Optus Group by the ASU; (ii), in particular (o), speaks of the position adopted by the ASU in relation to various Optus enterprise agreements; (iii) talks about the position adopted by the ASU in relation to the most recent Optus enterprise agreement.

[9.30am]

PN560

Well, there may be some issue as far as the ASU is concerned in terms of how the objection in four has been framed and the conclusions that we seek to draw. But the point is at the moment we are left to assume that the ASU by its entire rejection of the notice of objection is putting in issue that the fact that the CEPU has, for example, made representations to the Optus Group about the matters referred to in paragraph 11, of particular (k), and that the CEPU has notified various industrial disputes as referred to in paragraph 12 - (xii) of particular (k). Now, obviously if those matters are in issue we will need to go about preparing our evidence on a certain basis.

PN561

If we understand that those facts are not in issue, the conclusions that might be drawn from them may be, well, then it might mean that the evidence can be prepared on a different, and one would hope, more efficient basis. The various assertion - the same observation can be made about the various factual assertions made about the ASUs participation in or involvement in respect of the various industrial instruments that are referred to in particular (o) and there are various other factual matters which, in our view, should be fairly uncontroversial which are dealt with in other particulars in relation to other grounds of objection referred to in the notice of objection.

PN562

I don't think that it would be appropriate to characterise those matters as perhaps was the case on the last occasion as merely matters of public record which may or may not require some degree of proof. So that was to amplify a point, what I had said on the last occasion in relation to the particulars set out in the notice of objection. And where we are left, based on the ASUs reply to the notice of objection which I have previously referred to - it is true that under the Act the ASU is not required to file a reply or answer to the notices of objection which have been filed in these proceedings and we considered that on the last occasion and it is a correct reading of regulation 124 of the Registration and Accountability Organisations Regulation.

PN563

However, what we are seeking to do is obtain a direction on a procedural basis and we say that you have power to do so under section 110(2)A of the Act and also pursuant to section 111(1)(d) and (t) of the Act to facilitate the efficient conduct of the proceedings in an effort to both confine and define the issues that are in dispute between the parties before the preparation of the evidence. On the last occasion there seemed to be some debate about whether the direction that we were proposing was one going to onus.

PN564

I think that it is fairly clear from a reading of the two decisions referred to by Mr Nucifora earlier, the decision of Senior Deputy President Williams, print R7043 and the subsequent decision of the Full Bench, print R9776. But what we are currently debating before, your Honour, is a procedural issue, it is not an onus issue and that is clear, in our submission, from paragraph 15 of the decision of Senior Deputy President Williams which was referred to by Mr Nucifora where his Honour said:

PN565

It should be noted that the approach is a procedural one and bears no relation to imposing upon one party or another an onus to make out its case. It is ultimately to be the task of any applicant to satisfy the designated Presidential Member that its application should be granted. The traditional requirement that the objector put its case first does not denigrate from the task faced by the applicant.

PN566

And that passage is referred to by the Full Bench in paragraph 5 of its decision. So, in our submission, a debate about onus of proof in the matter is not to the point. And in terms of the procedural side of things, your Honour, as we said on the last occasion we have - without making any concession as to onus, agreed to file and serve our evidence first consistent with the comments made in the decisions of the Commission which have been referred to.

PN567

We are not asking the ASU to file and serve its evidence before the evidence in support of the objections is filed. We are in a position where we have filed what we regard as a comprehensive notice of objection already, so, again, we are not asking the ASU to go first, so to speak. But having filed that comprehensive notice of objection what we are asking the Commission to do is to issue a direction to the ASU to assist in confining the matters in dispute between the parties which will then facilitate a more efficient and cost effective preparation of the evidence required for the matter.

PN568

And one would also think in the circumstances a more efficient and cost effective conducting of hearing when the time comes for that. There is also in that context, your Honour, a cost issue. There is a real risk if the ASU is not asked to better define what matters are in dispute, and perhaps why they are in dispute at this stage, Optus - and I suspect the same will also apply for the CEPU of being put in a position where it will need to proceed on a certain basis in preparing its evidence because of the ASUs current position. And will then be put to the cost - - -

PN569

THE SENIOR DEPUTY PRESIDENT: Why is that so, given that there will be an exchange of contentions which ought to, I suspect, address the issues that you are seeking to agitate now. I mean, look, the approach taken by - pardon me - the approach taken by Optus in its objection, I think, is a commendable approach, but realistically it sets out almost there, the contentions of fact and to some extent law that Optus will undoubtedly be relying on in its contentions.

PN570

And I suspect that a lot of that will be repeated or appear in the contentions and then when the ASU comes to file its contentions it will also respond to those thing then, I suspect, and it is just going to be a bit repetitive.

PN571

MR HEDDLE: Well, one would expect so, your Honour. We are not talking about the moment about the ASU filing comprehensive evidence or detailed outlines of submissions as to fact and law, what we are asking for is a more comprehensive outline of why it is they reject the objections that have been filed in their entirety. At this stage, pursuant to the directions proposed, the summary of contentions setting out the ASUs position follows the filing and serving of any further contentions on behalf of Optus and the CEPU, but more importantly, the filing and serving of our evidence.

PN572

So we are in a position at the moment, where other than an assertion that the objections are rejected in their entirety, we have no guidance as to on what basis those objections are rejected and therefore precisely where the evidence might need to be directed and perhaps concentrated. So we are in a position where, at the moment, we would need to proceed on the basis - we effectively need to prove all of the objections and all of the particulars giving rise to those objections because the position of the ASU is the objections are rejected in their entirety.

PN573

So our preparation of evidence - and therefore the material which will be filed with the Commission, and which will need to then be responded to by the ASU, will need to be cast in the broadest possible terms because we must proceed on the basis that everything put forward is not accepted or rejected by the ASU. Now, we can do that but it has the potential to significantly increase the cost, not only for ourselves, but also for the ASU because the evidence, as I have said, will be prepared on the broadest possible basis.

PN574

But it also has the consequence that there is the potential for some inefficient use of the Commission's time inn it having to hear and determine the matter because the evidence has had to be cast on that broad basis. So what we are seeking is not a reversal of the onus, what we are seeking is a procedural direction which, in our submission, your Honour, has the power to make and which also, in our submission, is not inconsistent with the decisions of the Commission referred to by Mr Nucifora the purpose of which is to assist the parties and the Commission in trying to better define the issues in dispute at this stage so that, where possible, we can be more selective about the evidence which is prepared, filed and serve.

PN575

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thank you, Mr Heddle. Mr Hall, did you want to say anything?

PN576

MR SHAW: Mr Shaw - - -

PN577

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Shaw.

PN578

MR SHAW: That is all right.

PN579

THE SENIOR DEPUTY PRESIDENT: I called you Mr Hall before.

PN580

MR SHAW: Latecomers can't demand much, I imagine. As I indicated on the previous occasion, we broadly support the position put by Mr Heddle. Like Mr Heddle our client has, through us, submitted very detailed objections. I believe, in the spirit of putting in the sort of detail that we have put in in our objections, Mr Heddle has put in in his objection and would assist the process if the ASU had similarly in its response been more fulsome in indicating what the issues were in dispute.

PN581

I take the point that you made at the previous hearing, that is, that essentially, as a matter of pleading, we are arguing about the content of the particulars but ultimately what Mr Heddle is now saying - and we accept that as well - that there are many facts which are - which, I believe, are capable of being dealt with by way of - you know, in effect, an admission on the part of the ASU. That would certainly simplify the process that we would go through in terms of preparing the volume of material.

PN582

And as you would be aware from these sorts of cases you often end up with very large volumes of written material in these cases, and I think if the parties can co-operate to avoid that weight of material, that is a desirable way to approach the litigation. We certainly approached that with our objections, by putting in detailed material there, in order to elicit from the ASU something in greater specificity than we have been so far given. Those are my submissions.

PN583

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Shaw.

PN584

MR NUCIFORA: Yes, your Honour, if I may just reply to submissions put by Mr Heddle and Mr Shaw. Your Honour, we refer to those two authorities again and have to say that that ought confirm the procedure that is normally followed by the Commission in relation to 204 - now schedule 1B applications.

PN585

THE SENIOR DEPUTY PRESIDENT: Yes, but the objectors say, well, they don't take any issue with the principles enunciated there. They are saying here though that we have put forward a number of factual issues and you simply rejected them. You now put them on notice that they have to prove those matters.

PN586

MR NUCIFORA: Yes, your Honour. There would be - it is not our interpretation of particulars as we have known it. In their contentions they have raised particulars and of course there would be some of them that go without saying, these agreements actually exist. The CEPU have the right to employ people at a particular time. As I understand it, this - at a later stage, these issues will come up again, it is a question of interpretation of those facts. There are some facts that are quite straight forward, there are other facts that are asserted that support their contentions that we would continue to object to.

PN587

THE SENIOR DEPUTY PRESIDENT: What about particulars like there being a number of disputes and ASU have never been involved in.

PN588

MR NUCIFORA: Yes, and we would say, your Honour, that the proposed directions that we have put, that would be dealt with quite efficiently in that process there. We either have, or we haven't and if the objectors in Optus and the CEPU have put in more comprehensive now in their objections, then all we say is that that actually ought not be as much - that ought be - it actually works the other way. The proposed directions that we put would mean that they would not need to put any more time and resources into at least their contentions than they have already.

PN589

Of course they have the right to supplement what they have got there but they have indicated, and particularly Optus, that they have put in very comprehensive contentions already. In relation to the evidentiary material that they will be gathering for - marshalling for their contentions, I would suggest that they would be the same however we responded now. If there are - as a matter of fact particulars that go to as specific as indicating that agreements exist, then they would go without saying. I wouldn't think that there would be too much time at all wasted before the Commission or by any of the parties, as we sought through the directions, on agreeing to certain facts. I don't believe - I believe the directions that we have proposed - - -

PN590

THE SENIOR DEPUTY PRESIDENT: If you concede now, they go without saying. Why did you put in a bald denial of any of it?

PN591

MR NUCIFORA: Well, there was concern that, when we compare this with other applications that are before the Commission - and we have quite often been an objector in the position of the other parties - that there could be some prejudice in our organisation as an applicant responding prematurely. Senior Deputy President Williams has indicated - and we draw the analogy here, although it was more drastic there, they were seeking a 111(g) application to set it aside - but he indicated that it was premature.

PN592

And we would say at this stage that it is premature to respond specifically to the particulars when no other matter before the Commission has resulted in that sort of procedure. We would actually indicate that having to do that would be procedurally unfair to the ASU, when we compare with all other applications that we are aware of that have not been, of course, settled, or gone on to arbitration. Many of - well, there have been a number - we have been an objector in - I think this is our second application so we would have a concern the other way, that it is procedurally unfair.

PN593

As his Honour has mentioned, Senior Deputy President Williams in that matter, and as I understand it, on other occasions that it is for the objector to provide to a full - to run their case on their understanding of what the application intends to achieve.

PN594

THE SENIOR DEPUTY PRESIDENT: What Optus is proposing is that the course that they urge would be more cost effective in refining issues and perhaps reducing the amount of paperwork necessary to argue these sorts of cases.

PN595

MR NUCIFORA: Yes, your Honour, we would say that in terms of evidentiary material it needs to provide it. As an objector ourselves, in other applications, that has never been a consideration and we have had to use all resources that we have. We have - we are talking about a large multi-national organisation, Optus, we are not talking about a small employer. It is otherwise - - -

PN596

THE SENIOR DEPUTY PRESIDENT: There is nothing in the rules, is there, for you to have to file a reply?

PN597

MR NUCIFORA: That is our understanding, your Honour, not at this stage. We have otherwise - we would always seek to run the matter before the Commission as efficiently as possible. We wouldn't seek to - and I think that the argument that it could be run more efficiently because there could be more areas common that we could agree to and that are not in dispute and will become clear once the objectors have lodged their submissions and evidentiary material.

PN598

We would say that, certainly from the employer's point of view, there is a question - the key question goes to whether the - a consent to the variation to the ASU rules would cause disruption on the job and I think that key question remains outstanding, whatever we say - whatever the ASU says now in relation to the particulars raised in their objections. Your Honour, we would think when we compare this - and it is all relative - compared with other applications before the Commission where our union and other objectors have been in a position where they have had to provide all of the evidentiary material they believed needed to be provided with their contentions and their objections, such as the HSUA and the authorities I referred to today, then we would think, from our point of view, the Act certainly doesn't expressly, or we don't believe impliedly, place an obligation on our organisation to do that.

PN599

And that it would be, we would suggest, procedurally unfair that we now be required to do something other than what has occurred in the greater majority of other applications before the Commission. And your Honour we stand by that earlier letter from our union of 11 February that we reject all of the contentions that are there - and that is to the point - we reject all of the contentions that are there. I just say in passing though that there is quite obviously some of the particulars that are raised with those contentions that are more than likely to be agreed. I mean, as I mentioned before, there are certain things that exist and they are - facts that exist that no-one would dispute.

PN600

But to respond to those now puts our organisation at an unfair advantage. We would seek to respond overall to the contentions and the evidentiary material put by both of the remaining objectors and we believe that to be required by the Act and required by the procedure normally followed by the Commission. If your Honour pleases.

PN601

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Shaw, do you agree there are no regulations or rules that require the applicant to file a reply?

PN602

MR SHAW: I was only referring to - I was only looking at regulation 124 - - -

PN603

THE SENIOR DEPUTY PRESIDENT: Yes.

PN604

MR SHAW: - - - which seems to make it - it is a may there and I can't really see that that can be interpreted as a must because there is a must also used in that same regulation.

PN605

THE SENIOR DEPUTY PRESIDENT: Yes, well, thanks very much. All right, look, I am not minded to make the direction proposed in paragraph 1 of Optus1 and I will publish reasons for that prior to 13 October but I will make the directions now in terms of ASU10 but the parties will have my reasons prior to 13 October. Any other matters?

PN606

MR HEDDLE: Merely, your Honour, whether you wish at this stage to fix a date for the further directions hearing later in the year or whenever that might be.

PN607

THE SENIOR DEPUTY PRESIDENT: 17 December, what day is that?

PN608

MR NUCIFORA: It is a Friday, your Honour.

PN609

THE SENIOR DEPUTY PRESIDENT: Well, is 17 December a suitable date for you, Mr Heddle?

PN610

MR HEDDLE: It is, your Honour.

PN611

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora, Mr Shaw?

PN612

MR SHAW: Well, yes, it is, but on the other hand sometimes when there is - I am not saying there is going to be slippage, but on the other hand, it - often having a bit more time between a directions hearing and the compliance with the previous order sometimes allows the parties just to, sort of, you know, reflect on where they are up to. So, perhaps, given the time of the year - I am not saying this strongly, but - - -

PN613

THE SENIOR DEPUTY PRESIDENT: Do you want to come in on 24 December?

PN614

MR SHAW: Well, yes, I was just looking for an invitation in that nature.

PN615

MR NUCIFORA: Actually, your Honour, we were before the Commission in this matter on 24 December last year when it was before Vice President Ross.

PN616

THE SENIOR DEPUTY PRESIDENT: All right, well, let us - - -

PN617

MR NUCIFORA: But I would say, your Honour - - -

PN618

THE SENIOR DEPUTY PRESIDENT: - - - celebrate the anniversary and do it again this year.

PN619

MR NUCIFORA: Your Honour, what I would say is that - I said as much as Mr Shaw did earlier, that if we - if that date is listed for directions and of course, subject to, being that time of the year, the parties having a discussion about where we are at at that time and that it may require a postponement, then - - -

PN620

THE SENIOR DEPUTY PRESIDENT: Well, what I will do is I will leave it 17 December and I will add the directions suggested by Mr Heddle that the parties have liberty to apply. All right, anything else?

PN621

MR HEDDLE: No, your Honour.

PN622

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned.

ADJOURNED UNTIL FRIDAY, 17 DECEMBER 2004 [9.54am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU10 AMENDED PROPOSED DIRECTIONS PN493