C2004/5710, Transcript of Proceedings [2004] AIRCTrans 4051 (21 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2306
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/5710

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION

and

BLACK FOREST TIMBERS PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged assault

ADELAIDE

11.40 AM, MONDAY, 11 OCTOBER 2004

Continued from 6.9.04

THIS HEARING WAS CONDUCTED VIA
VIDEOCONFERENCE

PN173

MR J. CULLINAN: I appear on behalf of the union and with me, MS J. CALVERT and MR P. LOVE.

PN174

MR P. RYAN: I appear on behalf of the company and with me, MS D. TREGONNING, General Manager of the company.

PN175

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, can I suggest to the parties that it might be more convenient for you to consider remaining seated. It is entirely a matter of the parties' election but most people don't like standing up before a television camera. So I leave that to the parties in that regard. This matter was before me in early September and at that stage the parties went away to engage in further discussions. I don't know the status of the matter. I am guessing that there may have been a problem in terms of those discussions. Mr Cullinan, do you want to bring me up to date in the matter?

PN176

MR CULLINAN: Yes, your Honour. Your Honour, the CFMEU considers this to be a significant concern and a worker has been attacked, assaulted at his workplace and no real action has been taken subsequently by the company to ensure his or any other worker's safety. Your Honour, following last year there were three stages directed by your Honour. The first was for the union to provide all the information to the company, which we did with haste. The company was then to make a decision about the position it was to adopt and a discussion was to be held between the union and the company.

PN177

The CFMEU was involved with this recommended series of events. However, the CFMEU is still yet to be advised of any position the company has in this matter. The union put to the company that Mr Jacobson could no longer be responsible for employees at the site and that perhaps some compromise may be found, but no such compromise beyond his dismissal would result in Mr Jacobson being in charge or responsible for any CFMEU matters.

PN178

We are concerned that he should not be in charge of any CFMEU members at the site. Mr Ryan, on behalf of the company, communicated that the company did have a setback ..... the company put forward. Again, we are extremely concerned by this. The CFMEU has provided full and proper statutory declarations which include some detail of the events and these include a declaration from the victim, two witnesses and a witness to the consequent meeting of the company and the victim.

PN179

This evidence, we say, is compelling in two respects that should concern Ms Tregonning with cut price timbers. Firstly, we say it is clear that the foreman is responsible for the attack. Under the company harassment policy Ms Tregonning accepts responsibility for her employees' behaviour. Witnesses are resolute in their account of events and a meeting was clearly staged after the event to offer an alternative to the sacking of Mr Jacobson.

PN180

Our second concern is that employees of Black Forest Timber had notified Ms Tregonning on other occasions of inappropriate behaviour by Mr Jacobson. One such occasion referred to includes a direct assault and others refers to ..... vilification and they are included in those statutory declarations as well. Further, Ms Tregonning and therefore Black Forest Timbers level of awareness has been raised to a level which, in the CFMEUs opinion, requires immediate action. Whether this level of awareness was raised at this point prior to the most recent events may only be determined by a full and thorough investigation but it does beg the question what is being done by the employer now?

PN181

Similarly CFMEU members have a right to feel safe at all times and to work in a safe workplace free from any harassment or bullying. In fact, Ms Tregonning has a duty of care to her employees. What we seek, I guess, is the Commission's support in determining a path forward to ensure all workers do in fact work in such a safe and amenable environment. We are concerned that not enough has been done by the company at this stage to provide such an environment. So at this stage there has been no compromise or any result out of discussions that we would see as satisfactory, your Honour.

PN182

THE SENIOR DEPUTY PRESIDENT: Mr Cullinan, can I just clarify with you what precisely are you looking for today?

PN183

MR CULLINAN: At this stage, Mr Deputy President, we will be seeking at least an opportunity to discuss, whether that be in a conference or further conciliation, possible paths forward or possible recommendations or solutions that the Commission might set and to have that discussion with the company.

PN184

THE SENIOR DEPUTY PRESIDENT: I see. So that in effect what you are saying is that you haven't had any discussions with the company since the last occasion.

PN185

MR CULLINAN: No.

PN186

THE SENIOR DEPUTY PRESIDENT: Discussions have been totally non-productive, given the union's view.

PN187

MR CULLINAN: I don't believe it has given the union's view, if the Commission pleases. We have put forward the opportunity for a compromise that would seem Mr Jacobson potentially stay on site in some other capacity but in the capacity of overseeing or being foreman for our members, we say that that creates such a significant concern we could not come to that compromise with the company.

PN188

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Ryan.

PN189

MR RYAN: Your Honour, there are a couple of matters that I need to address immediately and that is that the company has had discussions with the union since the last time we were before you and in fact the company has formally communicated their position to the CFMEU and I believe it was forwarded to you as well, your Honour. The first correspondence from the company was dated 21 September 2004 and also further correspondence on 28 September 2004. I believe they were forwarded to your office as well and at a later stage may perhaps be in fact pleaded but I just do it for my own ..... and the company has sought to engage in discussions.

PN190

The situation as it is now is that we have not been able to agree to an outcome that is suitable to the CFMEU. From our point of view, your Honour, we were advised today it was purely only directions that were being sought by the union because clearly our question is: well, where to from here? What is being sought? I suppose, your Honour, to conclude, I would merely say that as we indicated to you at the initial hearing, all the stages of the disputes procedure, I suppose, have now been followed. The matter still remains unresolved and we are seeking to have the matter progressed from here and part of that would clearly be as to what the union are now seeking.

PN191

THE SENIOR DEPUTY PRESIDENT: I see. So can I put that in my words to make sure that I have understood what you are saying to me? That in effect the employer agrees that the next step is for the Commission to facilitate some discussions between the employer and the union.

PN192

MR RYAN: Yes, your Honour, and if necessary we, in our discussions with the union, indicated that given there seemed to be a vast conflict in terms of the statements made by employees as against the statements and the outcome of the investigation conducted by the company, it may be necessary to in fact test those statements in terms of them. The company have indicated preparedness to have the Commission deal with the matter providing the union give undertakings in relation to no double jeopardy.

PN193

In other words, your Honour, if the matters are resolved here those two issues will - we will seek that the union give an undertaking and that would be the conclusion of the matter and that both parties would accept a recommendation that it was being sought in relation to resolution of the matter.

PN194

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Cullinan, what is the union's position relative to the concern that Mr Ryan has raised about the potential for what he characterises as a double jeopardy problem?

PN195

MR CULLINAN: Your Honour, I may have to seek some instruction briefly but at this stage we would not see any great concern with that. We don't believe that that would impinge upon the union's rights to take this matter further in any other court or in fact, as it is an assault, with the police. But in terms of this Commission, we think that may be an appropriate path.

PN196

THE SENIOR DEPUTY PRESIDENT: Well, I am now a little confused by your answer and it might be best that I simply indicate my confusion and explain the basis for that and then allow you, without adjourning the matter, to have a brief discussion with Ms Calvert and Mr Love in that regard before you respond.

PN197

My understanding from Mr Ryan, who I am sure will correct me if I have misunderstood him in that regard, is that the employer was now looking to have the matter resolved by the Commission with the expectation that if the matter could not be resolved by way of discussions it may need to proceed to some form of arbitrated outcome, but that the employer was looking for agreement such that that process would resolve the matter in its entirety rather than being simply one of a number of possible other steps which could quite conceivably invoke the civil jurisdiction and which could - to use the words that I understand Mr Ryan is using - create a double jeopardy situation where the matter could not be resolved in the Commission and proceeded to other tribunals using other legislative remedies. Now, Mr Ryan, have I correctly summarised your position?

PN198

MR RYAN: Yes, your Honour, you have.

PN199

THE SENIOR DEPUTY PRESIDENT: I am not quite able to reconcile your response to me, Mr Cullinan, in terms of the position adopted by the union in that regard. You see, what appears to me to be the very broad options in terms of how this matter might proceed are first of all that there may exist other legislative remedies in other jurisdictions in this matter that are within - perfectly within - the rights of any affected party to pursue.

PN200

It may also be the case that the parties want to maintain this dispute notification and look to the Commission for assistance in outlining an approach about how the matter could be resolved. The two options may exist side by side. It may also be that the parties choose to invoke one or the other of those. What I understand Mr Ryan to be saying is that he is happy for the Commission to be involved in trying to resolve the matter but only on the basis that it is agreed that this will be the only avenue used to resolve the matter. Now, once again, Mr Ryan, have I understood that correctly?

PN201

MR RYAN: Yes, your Honour.

PN202

THE SENIOR DEPUTY PRESIDENT: Now, that leaves me with a question for you, Mr Cullinan, as to what position the union wants to take relative to this particular section 99 application? It might be best on that basis that unless you have got any questions of clarification from me, I simply allow the union the opportunity to have a brief discussion now before it responds to my outline of that understanding. Does that make sense, Mr Cullinan?

PN203

MR CULLINAN: That perfectly does, your Honour. May we have that brief couple of moments?

PN204

THE SENIOR DEPUTY PRESIDENT: Look, I won't terminate the video link. So can I suggest you might perhaps hop out of the room perhaps to have your discussion and when I see you come back in we will recommence these proceedings? The parties will have on the table in front of them, or should have, one or two small triangular microphones. Can you see those?

PN205

MR CULLINAN: Yes, your Honour, it is in front of me.

PN206

THE SENIOR DEPUTY PRESIDENT: If you push the little red button in the middle of that you put it into mute mode, which means you can have some various discussions without me being able to hear them. All right. So go forth and confer.

SHORT ADJOURNMENT [11.55am]

RESUMED [12.01pm]

PN207

THE SENIOR DEPUTY PRESIDENT: Are the parties ready to proceed?

PN208

MR CULLINAN: Yes, your Honour.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Cullinan.

PN210

MR CULLINAN: The CFMEU is willing to accept that this be the jurisdiction in which the matter is dealt with. We would just like to know if the worker wants the AIRC, the Commission, to deal with this matter and we understand that would be subject to the normal rights of appeal. We also want to make clear that we cannot waive the worker's individual rights, the personal rights, to pursue this matter himself in any other form, I guess. So although the CFMEU accepts that responsibility in that we will ..... in this forum, we can't waive the worker's rights to do otherwise.

PN211

THE SENIOR DEPUTY PRESIDENT: I see. Mr Ryan.

PN212

MR RYAN: Well, your Honour, we note the CFMEU position, including we understand the CFMEU brought this action on behalf of the individual employee allegedly the victim of the incident. So we will be seeking that that individual employee also communicates his view in relation to the matter, again from the double jeopardy point of view.

PN213

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, what would you see the Commission potentially ruling on in this matter in the event that the parties were not able to arrive at an agreed outcome? In that it seems to me that there are a number of potential outcomes in the matter. The Commission could be called upon to investigate the facts of the matter and could decide that the employer investigation was appropriate and arrived at an answer that was sustainable in the circumstances, in which case I would understand your position to be one of saying that would mean that the supervisor, Mr Jacobson, should return to work and no further issue would arise relative to this particular instance.

PN214

The second potential outcome is that the Commission might find that there was a flaw in the employer's investigation and leave the matter there, which begs the question of how that actually resolves the matter in dispute. The third, or a third, option is that the Commission could be asked to go a step further such that having found a flaw in the employer investigation the Commission could be asked to reach a conclusion about what actually did happen and if so, and depending on that, provide for some form of recommended sanction, which might be a caution, it might be some other form of sanction, or at the other end of the spectrum, it could be a recommendation that the employment of Mr Jacobson be terminated.

PN215

Now, some of those are somewhat unusual steps for parties to even countenance the Commission undertaking. But they all conceivably flow from the matter in dispute and hence I seek from you some advice as to how the employer proposes that this particular issue be defined and what sort of action might or might not be sought from the Commission.

PN216

MR RYAN: Your Honour, it could in relation to that third option you have outlined, where the company's concern is in relation to potential double jeopardy, we are not sure yet what the union are actually seeking out of this dispute notification as to what would be being sought by the union if the Commission deals with the matter but I would expect they are probably looking at the third option which would obviously involve testing quite a bit of evidentiary material and if that was the case well, then the company ..... had concerns to indicate if a full thorough testing of that material is to be done, well it should only occur once and we have indicated a preparedness for that to occur in this jurisdiction but we seek an undertaking, from the individual employee as well as from the CFMEU, that that is as far as the matter will go.

PN217

THE SENIOR DEPUTY PRESIDENT: Yes, but I am afraid that that does not quite answer my question. If the Commission was being called upon to look at the investigation undertaken by the employer and found a flaw in that investigation, what would you see as the Commission's function consequent upon that finding? Should the flaw simply be identified or should the Commission recommend, or propose, action to be taken as a result of its findings?

PN218

MR RYAN: We have indicated in discussions a preparedness to allow the Commission to make recommendations in relation to the outcome of the investigation.

PN219

THE SENIOR DEPUTY PRESIDENT: I see, all right. Thank you. Mr Cullinan, there are two questions now before you. The first is Mr Ryan's request for clarification of the extent to which the position that you have outlined can also be said to be a position relative to the employee who was involved in the alleged incident.

PN220

MR CULLINAN: On the matter to do with the employee's ability, or the member's ability, to waive their rights to take this further, I don't understand that we can move on that. I think the employee, or the member, we can't waive that person's right. We would not recommend to that member that they waive their right to take this matter further to the police, if they so desire. We don't expect them to but if they so desire, and we are also concerned that any subsequent potential illness or stress-related issue should also be able to be pursued and we would not want to limit that in any way, shape or form.

PN221

So in terms of the CFMEU, we have made that clear that we will endeavour to follow through in this jurisdiction, but we aren't able to even recommend at this stage to the employee in question that they waive their rights to do that.

PN222

THE SENIOR DEPUTY PRESIDENT: I see, thank you. In the event that the Commission was to go ahead and try to resolve the dispute in a fashion which extended beyond a conciliated outcome to an arbitration, what would you see as defining the scope for any such arbitration? That is, if the Commission was to find that there was a flaw in the employer investigation, are you suggesting that the Commission take it upon itself to recommend action that should be taken by the employer as a result of the facts of this matter?

PN223

MR CULLINAN: Yes, your Honour, we would be seeking that the Commission make that recommendation.

PN224

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN225

issue appears to be the more immediate issue in that I understand Mr Cullinan is saying that whilst the CFMEU will give the sort of commitment that you are seeking he is not able to give nor recommend that the employee involved in the alleged assault give any such undertaking. Now, to what extent do you say that that is a relevant consideration in relation to this section 99 application?

PN226

MR RYAN: Well, we say it is directly relevant, your Honour, from the point of view that the notification was styled as a result of this individual employee's concerns. We believe that - assumed through the course of our earlier discussions were prepared to run the matter here in this Commission and we agreed to do so. Well, there would be no other ..... We understand what Mr Cullinan is saying in relation to possible other claims like the stress in that.

PN227

Well, we are not seeking to put any prohibition on that occurring, we can't do that anyway, but what we are seeking is that for the individual employee who brought the matter to the union's attention, or we assume he brought the matter to the union's attention, and then the matter has subsequently been listed here, we believe that individual employees should be prepared to indicate to the union that this process is the only process that deals with the issue, rather than leave his rights open and the company potentially exposed.

PN228

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, is it not conceivable that there are in effect four parties here? There is the employer, there is the employee, Mr Jacobson, and there is a third party being an employee who was apparently involved in some altercation with Mr Jacobson. Finally there are other employees who may or may not be members of the CFMEU. Now, looking at the actual dispute notification is it not the case that that dispute notification might conceivably relate to parties 3 and 4, being the employee involved in the altercation with Mr Jacobson, but also concerns that may or may not exist on the part of other members of the CFMEU who work in that particular workplace?

PN229

MR RYAN: Yes, your Honour, it may do. I haven't got a copy of the actual dispute notification and you raised that point last time. It is also a very valid point you raise in relation to Mr Jacobson as the individual as well. I mean, he may well have some concerns from the point of view that if the union employee is not prepared to forego his capacity to take action elsewhere, Mr Jacobson really is, by his term, completely exposed in any other proceeding to take place here. So we believe again that we have to seek further advice in relation to that matter and further advice we would hope the union would seek from the employee in relation to foregoing other courses of action that may be open to him.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes. Can I put something to both parties for you to comment on. I'm prepared to convene a discussion which would look to trying to resolve the matter on an agreed basis. To do that I would need to have access to some of the material that the parties have obviously been discussing. If that discussion did not arrive at an agreed outcome then the parties would need to advise of the jurisdictional foundation upon which it was proposed that I deal any further with the matter.

PN231

To do that the parties would probably need to look at whether or not section 99 was an appropriate vehicle upon which the Commission could rely in that respect, as distinct from an application that might be made and joined with this one pursuant to section 170LW of the Act. More particularly, the parties would then need to consider whether or not they could agree upon the matter in dispute, which sounds trite but it is clear from this discussion that it is not necessarily a simple issue, in order to then determine whether or not the Commission had the jurisdiction to progress that matter in dispute under the terms of the relevant agreement.

PN232

To make that clearer, if the matter in dispute was defined as: what is the appropriate action to be taken relative to Mr Jacobson, it is at least conceivable that there may be a debate over what jurisdiction the Commission has or does not have in that regard. If the matter in dispute is defined as the extent to which a commitment can or should be given by the two employees involved in this matter, Mr Jacobson and the other employee, as to the extent to which any arbitration extinguishes or finally concludes the matter, again that gives rise to questions about jurisdiction.

PN233

Thirdly, if the matter in dispute is defined as in any way the extent to which the Commission has the authority to determine an appropriate sanction, should one be necessary relative to Mr Jacobson, that again raises questions about the jurisdiction of the Commission. Those questions may well be capable of being answered but I'm putting to the parties that they may need to be answered and they may need at least to be addressed. Not the least in my consideration in this respect is the extent to which if the Commission is involved in trying to reach an agreed outcome in the matter by way of a conciliation process it may not be appropriate for the same Commission member to be involved in the arbitration of the matter.

PN234

So that the questions that I'm raising should not be taken as limiting in any way the capacity of a different member of the Commission to raise the same issues or indeed other issues of a like nature. In effect, what I'm suggesting to the parties is at this stage we simply look toward first of all equipping me to be able to be slightly better informed on the actual event and what it is that the parties are seeking so as to participate in a discussion designed to resolve the matter on the basis that both parties are aware that if that discussion does not resolve the issue the level of complexity steps up a substantial notch. Mr Cullinan, how do you feel about that proposition?

PN235

MR CULLINAN: I think you have been pretty clear there and we would be happy with that discussion to be held and that exchange of material. Just two notes, I guess, at this stage. I will follow up the information regarding the company putting back the position to the union but we actually haven't received any of the other investigation findings, as I understand it. So we would hope to - if you were to received all that information we would also have an opportunity to view obviously that information.

PN236

I guess the other point is do you foreshadow a joining of the section 170LW application and we have already discussed that and we will look to - if we can't by agreement reach a path forward in terms of an outcome which would be agreed or in this jurisdiction then we would have to join it in terms of still seeking an arbitrated outcome. So we are well aware of that and we are potentially looking at doing that if we can't progress this forward, your Honour.

PN237

THE SENIOR DEPUTY PRESIDENT: Yes. Now, Mr Cullinan, to be clear in this regard, I have received three letters from Mr Ryan since the hearing on 9 September. The first letter was dated 14 September and in that letter Mr Ryan advises that discussions are continuing between the parties with a further meeting scheduled for Monday, 20 September. He undertakes to keep me informed of the continuing discussions in that respect. On 21 September 2004 Mr Ryan advised that discussions had been taking place between the parties and:

PN238

It is expected that a meeting will take place prior to a request for a relisting being made.

PN239

He encloses advice forwarded to the CFMEU on that same date and that enclosed letter was a further letter from Mr Ryan to Ms Calvert dated 21 September 2004. Finally, on 28 September I've received a further letter from Mr Ryan which reaffirms the earlier advice. It comments that a meeting took place on Wednesday, 22 September following which the CFMEU undertook to advise by 23 September of their intentions in relation to this matter.

PN240

Mr Ryan was advised on 27 September that the CFMEU was seeking a relisting. He asked that the matter not be listed for 6 October. Now, that represents by and large the sum total of the information that I have in addition to the information given to me on 9 September. It might resolve any uncertainty that you have in your mind.

PN241

MR CULLINAN: Yes, it has just been brought to my attention the letters of 21 September and 10 September from Mr Ryan to the union so I have those. One of the concerns I have is that you raised as a potential ..... the 1, 2, 3 option was a flaw in the investigation and of our concerns would be that we don't actually have the findings of the investigation or the process that was undertaking in writing from the company. So in order for us to be educated about that discussion when it comes up, if we are actually going to be potentially looking at the dispute being about the actual process the company used in its investigation we would seek to have a lot further information about the investigation that was undertaken.

PN242

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Ryan, first things first, what is your response to the position or proposal that I outlined to the parties for consideration?

PN243

MR RYAN: We have no problem with that approach, your Honour.

PN244

THE SENIOR DEPUTY PRESIDENT: Secondly, the position put by Mr Cullinan such that he is wanting to consider the investigation undertaken by the employer?

PN245

MR RYAN: If he is requesting it he is probably right, if I suggest, I mean, we've got no problem doing that. Quite frankly, your Honour, in discussions that I and Dianne Tregonning have had firstly with Mr Paul Love and secondly a meeting I had with Jane Calvert, it was certainly indicated the steps that were taken by the company in relation to this matter. If that is required to be put on paper, as you have indicated, we will do that - I will have that done directly.

PN246

THE SENIOR DEPUTY PRESIDENT: All right. Now, is there anything else you want to say to me relative to the matter?

PN247

MR RYAN: Can I just make - just confirm, when we were last before you in terms of when the allegations were raised you asked the union to provide to the company by close of business the following day all of the information upon which they would be relying in relation to this matter. I just need confirmation that that is in fact the case. We received four statutory declarations and we received an email from the union in relation to another matter and it was on the basis of that that we were then in a position to put to Mr Jacobson the full extent of the concerns and allegations made against him which was then obviously - Mr Jacobson would then be provided with the opportunity to respond to that. So I suppose what I'm seeking now is confirmation that you don't need - there's no other matters that are going to be now put forward in the course of proceedings here now.

PN248

THE SENIOR DEPUTY PRESIDENT: Mr Cullinan?

PN249

MR CULLINAN: Just two items on that. In terms of the investigation we also seek that any evidence that was used as a basis in that investigation also to be provided so that we are not dilly-dallying around with that. In terms of the evidence or the items that the union had to put forward, at this stage we have put forward all the information that we would seek to rely on at this stage. We might say that if this dispute lengthens into a full investigation of the process that was used, we may very well need to seek and provide further evidence or information regarding the actual dispute that is ..... If that is more about the investigation, well, we might have to further investigate the investigation, your Honour.

PN250

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN251

MR CULLINAN: So clearly on behalf of the union we have put forward all the information that we would seek to rely on at this stage and we would be seeking the same from the company, that if they have evidence that they put that to us as well as the process they followed in - ahead of the discussion that we have so that we can have a fully informed discussion with you later, your Honour.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Cullinan. On the basis that I am prepared to convene a conciliation conference in this matter on the clear understanding that if that conference does not resolve the issues then both parties will need to give serious consideration to the extent to which jurisdiction exists and to take any matter, however that may be defined, further, I recommend that Black Forest Timbers provide in written form information about the investigation process and the investigation conclusion reached by the employer.

PN253

That the union should provide to Black Forest Timbers any other information upon which it proposes to rely in any conciliation conference relative to any dispute that it may have about the investigation process. I envisage that being a sequential step in that the employer would first of all provide information to the union and then the union respond. Any information exchanged between the parties should be provided to the Commission so that at least I can have read it by the time I sit down with the parties in an endeavour to arrive at a conciliated outcome and that should include information earlier provided to the employer by the union.

PN254

I could envisage that process of exchange of the information will take the parties at least a week. I would propose to list the matter for a conference in Melbourne at some stage within the next 2 weeks. I will not make a time now but rather wait until I receive all the information from the parties in accordance with those recommendations and will then arrange for the parties to be contacted so that we can come up with an appropriate date. Now, that suggestion to the parties is one that I'm happy to formalise by way of a written recommendation which might clarify the various steps that I'm proposing. Any such recommendation I would issue later on today and forward to the parties accordingly. Mr Cullinan, are you happy with that approach?

PN255

MR CULLINAN: Yes, your Honour. The only concern, you haven't mentioned the evidentiary requirements that the company use in its investigation.

PN256

THE SENIOR DEPUTY PRESIDENT: What I have mentioned is the information about the investigation process and the investigation conclusion. Fundamentally I would imagine that the information about the investigation process will give at least the company the opportunity to address that issue if it chooses to do so. What both parties need to realise in this matter is that we are dealing with a potentially very complex issue affecting the rights of four discrete - or at least four discrete groups. If the company chooses, or indeed if the union chooses, to limit the amount of information exchanged or provided to the Commission, that is the right of both groups. It will simply impact on how far we can get in any conciliation process and that is why I didn't specifically detail the information requirement over and above that which I have already said. Does that help you there, Mr Cullinan?

PN257

MR CULLINAN: Thank you, your Honour.

PN258

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, are you happy with that approach?

PN259

MR RYAN: Yes, your Honour.

PN260

THE SENIOR DEPUTY PRESIDENT: Very well. Now, can I take both parties would like a written version of that recommendation?

PN261

MR RYAN: Yes, your Honour.

PN262

MR CULLINAN: Thank you.

PN263

THE SENIOR DEPUTY PRESIDENT: I shall issue that later on today. At that point I will adjourn the matter on the basis that once I have received all of the information then I will list the matter for a conference in Melbourne. In the meantime can I say that if, having exchanged that material, either or both of the parties thought there might be some merit in sitting down to see whether you could resolve the matter yourselves, then such an approach would appear to have an enormous amount of merit and you shouldn't wait for a Commission-convened conference. There does exist the possibility you might sort out the issue yourselves. If that did happen, please don't wait for me to arrive in Melbourne before you tell me you have resolved the matter. I shall adjourn the matter on that basis.

ADJOURNED ACCORDINGLY [12.31pm]