C2004/4411, Transcript of Proceedings [2004] AIRCTrans 4900 (14 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 3, 105 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1101

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

C2004/4411

APPLICATION UNDER SECTION 111AAA
BY AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION THAT THE COMMISSION
CEASE DEALING WITH C2004/4403

PERTH

10.09 AM, FRIDAY, 3 DECEMBER 2004

Continued from 5.11.04

PN54

MR G.W. FERGUSON: I represent the Union in this matter this morning, thank you.

PN55

THE DEPUTY PRESIDENT: Thank you, Mr Ferguson.

PN56

MS J. BISHOP: I represent the Public Transport Authority, sir.

PN57

THE DEPUTY PRESIDENT: Thank you, Ms Bishop.

PN58

MR S. BIBBY: Your Honour, if it pleases the Commission, by leave I think I've already been granted status from a previous hearing and I appear on behalf of the Australian Services Union in this matter.

PN59

THE DEPUTY PRESIDENT: Thank you, Mr Bibby. I confirm that leave has been granted. Mr Ferguson, before commencing, I would ask the parties and the intervener to put on the record a very brief summary of their case. In effect, a thumbnail sketch which should be less than 5 minutes. So if you would wish to commence on that basis, we will proceed accordingly. Thank you, Mr Ferguson.

PN60

MR FERGUSON: Thank you, Deputy President. Deputy President, a thumbnail sketch of what the Union will lay out this morning is that in the submissions that have been put forward to the Commission by all the parties, it becomes clear that there is a present dispute before the West Australian Industrial Relations Commission relating to the position of Telephone Help Operators, if in fact that position is redundant. They are the same positions that have been renamed Surveillance Operator Level 1 Salaried Officer. The Union advises the Commission via section 111AAA, that there is an ongoing dispute and that those particular employees are governed by a State agreement which was handed down by order of Commissioner Smith of the West Australian Industrial Relations Commission.

PN61

So, our submission today, given the evidence by nature of submissions has been put forward it is clear there is an industrial dispute between the parties. Once that is determined that there is a genuine dispute affecting particular employees, the Commission must address itself to one question. And that would be, would the public interest be served for the Commission to continue hearing the application of the PTA for the insertion of the new classification into the ASU Federal Award. We say, that this case today, will rest on the public interest test, because it's a matter of agreed fact, that there is a dispute within the State Industrial Relations Commission.

PN62

I will call three witnesses this morning, who are employees, formerly described as Telephone Help Operators, who are in an acting capacity as Surveillance Operators while these matters are being determined in this Commission and the West Australian Industrial Relations Commission. There's no more for me to say at this stage, Commissioner - Deputy President, my apologies.

PN63

THE DEPUTY PRESIDENT: Yes, thank you for that brief outline Mr Ferguson.

PN64

MR FERGUSON: Thank you.

PN65

THE DEPUTY PRESIDENT: Ms Bishop?

PN66

MS BISHOP: Thank you, Deputy President. The Public Transport Authority and the ASU are attempting to insert a new classification into the Federal Award for operator surveillance. As Mr Ferguson has mentioned, it is a new classification and we find ourselves unable to proceed with that because the ARTB has lodged an application under section 111AAA objecting to that variation. The PTA is objecting or requesting that the Deputy President dismiss that application by the ARTBU on a number of grounds. Firstly, we are saying that the dispute is regarding abolition of positions and therefore is beyond jurisdiction.

PN67

We are going to cite authorities that go to the Implied Constitution Limitation relating to that matter. If the Deputy President considers that we do - or that jurisdiction is present, we would argue that these positions as they are new classifications, are not covered by a state employment agreement or award, and therefore the section is not enlivened by that proviso and we would also argue public interest in that it is clearly the employer's view that these positions should be covered by a Federal Award.

PN68

The employees have expressed views in support of that position, although there seems to be some wavering on that point at the moment and we would argue that there are additional considerations relating to the objects of the Act, and information as to the reasons of the employers and the employees for their viewpoint, which need to be taken into account when considering the public interest in this matter. And that briefly sums up the PTAs submission, Deputy President.

PN69

THE DEPUTY PRESIDENT: Thank you for that.

PN70

MR BIBBY: Your Honour, thank you. In short, as you would be aware, and I notice from the listings this morning, there are two applications that need to be considered. The first one is 4411, which is the one that is presently before the Commission, which does give consideration to the 111AAA matter and then secondly, there is another application, 4403, which is the application which has already been before the Commission and has been amended to allow for an amendment to the salaried officer's award, which is an application by the Public Transport Authority as I understand it, to put through some significant changes arising out of a restructure that they have deemed necessary to ensure the efficient operation of the authority.

PN71

Sir, if I can just get to the nub of the argument as I see it. In regard to the first matter, 4411, what we are saying is that, in effect, if one looks at the scheme of the decisions of this Commission, it basically has the following ingredients. Firstly, you have an employer and an employee or employees, who are covered by an existing State Award or agreement. What then happens is that a federal union often lodges a dispute where they are seeking federal coverage of this particular workplace. I am just talking of generalities at the moment.

PN72

The employer then disagrees with that course of action and often files under this particular section, section 111AAA and also, through that process, the Commission has an obligation then to seek the views of the employees concerned. It is quite simply an unusual provision that has been put into the Act which has allowed for employers and employees who are currently on existing state agreements or State Awards to continue that arrangement and not be disturbed by intervention of the Commission or a federal union seeking to rope them into an award.

PN73

This matter is altogether different. There is the assertion from Mr Ferguson that there is a dispute in the State Commission concerning, and you'll hear the term, "help telephone operators". We are saying, and the evidence will show, that those positions have been abolished. Mr Ferguson also said that there is a new position that is, the Surveillance Operator level 1, and his assertion from the bar table is that these are exactly the same duties as those of the help telephone operator. We would disagree and we think that the evidence will be clear on that point.

PN74

But what this leads to is this. We would submit that there is a foundational jurisdictional fact that has to be determined. If there is a new position in the Salaried Officers Award, and if the help telephone operator's provision no longer exists, then what we're saying is that the first ground, that is, the ground that needs to be established to show that there is a state agreement or a State Award that covers this classification falls away. There is no evidence of that and we would therefore say that there is there a fundamental jurisdictional fact is missing and the Commission, with all due respect, would not have the power to deal with the matter.

PN75

Secondly however, he has raised the issue of public interest. The Full Bench authorities on this matter are very clear. It is actually quite interesting that in this section and I can refer to the authorities, that the Full Bench has noted that in terms of the public interest, and I think of Monroe Js comments in a matter, with the AWU and the Hamersley Iron and the CFMEU, where he pointed out that the Commission is constrained when it comes to look at the public interest at the first step, because the public interest is informed by the views of both the employer and the employee. What is patently obvious in this matter, and once again, marking it off from other 111AAA matters, is the employer in this matter is actually seeking for the 111AAA matter to be dismissed.

PN76

Secondly, if one looks at the arrangement as I understand it, and I can be corrected on this matter, at this point in time, no permanent appointments have been made to the new position of Surveillance Operator. So from the stand point of the second element, that is, the views of the employees, it is questionable as to whether there are any employees to refer to. Secondly, or sorry, if I could say thirdly, sir, if one looks at the public interest arguments as is generally understood, pursuant to section 90 of the Workplace Relations Act, one of the prime considerations in defining the public interest, is in fact the question of whether the application complies with the objects of the Act.

PN77

So, to summarise, what I'm saying is there's firstly a jurisdictional fact to be found, and the Commission has to be satisfied as to whether there does in fact, and we would say it has to be this precise, there has to be evidence shown from the ARTBIU, that there is a State Award or a state agreement which covers the Surveillance Operators. We say that isn't the case. If that is found, we then say the public interest needs to be considered, within the definition required under 111AAA2 and that is, consideration has to be given to the employer's point of view. And that's clear from this application.

PN78

We're saying that there are no employees to talk to, so that will give weight to the public interest considerations that the Commission must consider, and then lastly, those broader public interest tests need to be considered in the light of the objects of the Act. For all of those reasons, what we are seeking today is for this application to be dismissed and secondly, if the other matter can be brought on and allow the parties - the principal parties to the Salaried Award to attend to an amendment, which we believe furthers the interests of the PTA and the ASU in this matter, if it pleases the Commission.

PN79

THE DEPUTY PRESIDENT: Yes, thank you Mr Bibby, that does assist. I would like next before commencing the proceedings, to have from the parties an estimate of the time that you would consider would be necessary for the presentation of your case. And I have in mind that that would include of course, your submissions, both opening and closing, and of course the witness evidence, and allowing time for the examination, cross-examination and re- examination of each witness. With that in mind, I would invite Mr Ferguson first to give your time estimate.

PN80

MR FERGUSON: Due respect to the Commission and yourself Deputy President, the Commission has put in a process where it has asked for detailed written submissions. Those submissions are a matter of record are in place. The union has nothing more to add to it's written submissions, because we've already addressed those fundamental points. There would be no point in asking for written submissions if advocates were then asked to give other submissions. I'd only be repeating what we've already put in our submission. But it would seem to me Deputy President, that we need a process that we all understand of where we are going to follow here.

PN81

There is no point, I would suggest to the Commission, for me to call the evidence of the employees until such time as the Commission has addressed the principal question. And the principal question it must satisfy itself with and it has being raised here, firstly, do you have jurisdiction, because that is being challenged and that needs to be argued out and any indication from the Bench. Because if the Commission is not convinced that it has jurisdiction, then we have right being here and we should march out the door. That's straight forward. What the Commission needs to do, it has to satisfy itself on the submissions and the documentation that has formed the body of that submission, if in fact there is a state industrial dispute. Now, the union has provided documentation that clearly advises this Commission that the matter of the Telephone Help Operators as a general redundancy has been filed in the West Australian Industrial Relations Commission, that there have been two conferences conducted by Commissioner Smith in relationship to that.

PN82

THE DEPUTY PRESIDENT: Sorry, excuse me Mr Ferguson. All I'm really asking at this point is how long do you think your case will take.

PN83

MR FERGUSON: Well, I can't - I can't give you that estimate until I know the process that the Commission is going to lay out. If I am going to have to argue jurisdiction, then go into the merits of the case and then call witnesses and cross-examine, we could be here all day. But, if the Commission was to make a determination that it has jurisdiction at first instance, then we can then proceed, because after that it is a question of the public interest test, and that is the real test that's here. It is a nonsense of my learned friends here, that can suggest that you can just rename jobs, declare them redundant and rush off to a Commission and have them slipped in through the back door.

PN84

The whole matter is that the present employees have a right under their industrial agreement, to argue if in fact their positions have been made redundant. And that has not been determined. On behalf of the union, the union has not put in bans, limitations, or anything to restrict the PTA going about its business. It has sought to take the matter into the jurisdiction of Industrial Relations Commissions to have it sorted it out by learned people like yourself.

PN85

THE DEPUTY PRESIDENT: Yes, Mr Ferguson, I do understand what you are saying.

PN86

MR FERGUSON: Yes.

PN87

THE DEPUTY PRESIDENT: It was my intention merely to be planning for the logistics of the day as to approximately how long it might take. But I understand - and for the planning of the hearing, but I understand from what you're saying that really you're not in a position to make any time estimates yet, because the primary issue in your submission for the Commission to address is whether it has jurisdiction to deal with the matter.

PN88

MR FERGUSON: Correct.

PN89

THE DEPUTY PRESIDENT: So I hear what you - - -

PN90

MR FERGUSON: That's right. That is the principal point that is being raised.

PN91

THE DEPUTY PRESIDENT: Yes, I hear what you say and I will certainly take that on board and consider that. I will now ask the other parties for their time estimates.

PN92

MR FERGUSON: But I would think no later than 6 o'clock tonight, Deputy President.

PN93

THE DEPUTY PRESIDENT: Is that for your part of the case or for the case as a whole, Mr Ferguson?

PN94

MR FERGUSON: My part of the case would be very quick, once jurisdiction is determined of the Commission. We can go straight to the heart of things, then.

PN95

THE DEPUTY PRESIDENT: Thank you.

PN96

MR FERGUSON: Thank you, Deputy President.

PN97

THE DEPUTY PRESIDENT: Thank you. Ms Bishop, your time estimate for the presentation of your case.

PN98

MS BISHOP: Deputy President, between 2-and-a-half and 3 hours. One hour for the submission, and probably an hour and a half for the witnesses.

PN99

THE DEPUTY PRESIDENT: I didn't quite hear that, sorry.

PN100

MS BISHOP: An hour and a half, sorry.

PN101

THE DEPUTY PRESIDENT: An hour and a half, and - - -

PN102

MS BISHOP: For the witnesses. We've got four witnesses, so.

PN103

THE DEPUTY PRESIDENT: Well, an hour and a half, the submissions would be how long?

PN104

MS BISHOP: An hour, I think.

PN105

THE DEPUTY PRESIDENT: An hour for the submissions and half an hour for the evidence.

PN106

MS BISHOP: Probably, I think at least an hour for the evidence.

PN107

THE DEPUTY PRESIDENT: So perhaps 2 hours.

PN108

MS BISHOP: Two to 2-and-a-half hours, yes Deputy President.

PN109

THE DEPUTY PRESIDENT: Thank you. That assists. Mr Bibby, your estimates.

PN110

MR BIBBY: My estimate would be as follows, your Honour. Happily, I agree with Mr Ferguson on one point, and that is it's my intention simply to put into evidence the witness submissions that have been provided to the Commission formally, and so I presume I will have to do that in due course. I will add probably, speak for 15 minutes on a number of authorities that have been raised and I'm not intending to lead any evidence. My cross-examination of this matter, I should imagine, would be extremely brief, so in total I am anticipating an appearance of no more than three quarters of an hour. If it pleases the Commission.

PN111

THE DEPUTY PRESIDENT: Yes, that certainly does assist. Before proceeding further, I am mindful of the submissions that have been made by Mr Ferguson in relation to the conduct of the case and it certainly would be my intention to ensure that today's hearing represents a fair opportunity for the parties to put their cases to the Commission. However, I am also mindful of the fact that I am bound by the statute in the performance of my functions, and must comply with the requirements of the law. Taking that into account, it, I think is relevant for me to observe that the proceedings which I hear and currently being heard, pursuant to section 111AAA of the Act do, by virtue of that provision in the Statute, raise a number of considerations for the parties and the Commission to address.

PN112

Given that this is, I take the point of Mr Bibby, an unusual provision in the Act from the point of view of its intention, it seems to me that it may be helpful if I indicate to the parties my view of what the statute is actually requiring to be addressed. And I have in mind to read out to you a short list of questions which would do just that, put into a context suitable for this hearing, the key points that arise from section 111AAA. The first one, and before actually raising them, I will be seeking your views on whether you would feel that these are indeed the proper questions to be addressed.

PN113

The first one is, are the wages and conditions of the particular employees governed by a State Award or agreement, and if so, which. The second question would be are the wages and conditions the subject of an industrial

PN114

dispute, as defined in the Federal Act in section 4 of that Act. The third question would be, if yes, if in fact those wages and conditions are the subject of an industrial dispute as so defined, how does that industrial dispute extend beyond the limits of one state. And fourthly, why should the Commission, or why would the Commission ceasing to deal with the industrial dispute, not be in the public interest.

PN115

Giving primary consideration to the views of the employees and their employer. I would like just to confirm first that those were clear, those questions and there was no difficulty in understanding them. If that's the case, I'll ask first Mr Ferguson, to give me your views on the relevance of those questions to this hearing and to the determination of this matter.

PN116

MR FERGUSON: What the Commission has, and it is kind of unusual, given what section 111A was originally designed for, but presently we have a group of employees that were described as Telephone Operators. We will tender documents that will demonstrate that they are covered by a State Award agreement and for the purposes of what a State Award is, as defined in section 1 of the Act, we will pass that test. So, the first part of the answer is we will say to you - - -

PN117

THE DEPUTY PRESIDENT: Sorry, Mr Ferguson, which section did you say?

PN118

MR FERGUSON: Defined in section 4.1 of the Act.

PN119

THE DEPUTY PRESIDENT: Yes.

PN120

MR FERGUSON: Yes. That clearly says what a State Award is, which goes into agreements and orders of the Commission and I'll talk to that later. So, we would say that the Telephone Help Operators are covered by a State industrial agreement by order of the West Australian Industrial Relations Commission, and they have accrued rights under that industrial agreement, to argue if in fact their positions have been made - are genuine redundancy. That is the nub of what these workers, or these particular employees are trying to protect. They are trying to protect their right, accrued right under their agreement with their employer, if in fact their positions are truly redundant. Now that question can't be answered until the West Australian Industrial Relations Commission determines that.

PN121

On the second question, it's quite interesting. There is an industrial dispute, because the application by the PTA in conjunction with the ASU, is in fact an industrial dispute to insert a classificational wage rates into award. That is the substantive application. That is the application that gives jurisdiction to this Commission. The section 111AAA should be seen as third parties giving advice to the Commission that particular employees may be covered by a State Award or agreement. They are the subtleties of what is there, so in terms of (1) we say, yes they are - wages and conditions of employees are covered by a State Award agreement, (2) yes there is an industrial dispute at a federal level because that is brought about by the substantive application to amend that Federal Award to place in that a classification and a classification rate of wage.

PN122

In terms, does it - that dispute or that award must extend beyond the limits of the State. But that is not a point or has any bearing on what the RBTU is placing before you today, Deputy President. We are - section 111AAA is advice to the Commission and once we give you that advice, then it is up to the Commission to satisfy itself if in fact the wages and conditions of employment are governed - are presently governed by a State Award. Now, it's interesting to note, that until such time as this Commission was to proceed with a substantive application, there is no classification as Surveillance Operator and there is no wage rate in place.

PN123

So, the substantive application is trying to place those there, but in doing so, is attempting to take away the substantive rights of particular employees governed by a State Award. They are the issues. So, beyond the limits of the State, I would imagine it does extend beyond the limits of the State, but for the purposes of what the RBTU is advising the Commission, that is neither here nor there, because the substantive application that gives you jurisdiction is the substantive application.

PN124

And in dealing with that substantive application, the Commission Is directed to 111AAA to inquire if in fact it should proceed if particular employees are governed by a State Award or agreement. And in terms of why the Commission should cease not to proceed with a substantive application, we would say that the authorities are quite clear, that the onus is not on the RBTU to demonstrate the public interest test, the public interest test is clearly placed on the Public Transport Authority to demonstrate why this Commission should proceed, once and only once, this Commission has determined that the State Award or agreement is covering the wages and conditions of particular employees, the subject of the substantive application. It's as straight forward as that as we see it.

PN125

So, we would say that the Commission, once it's heard from myself and my good friends, would need to take evidence to determine if in fact there is a State Award and agreement that affects Telephone Help Operators who, for the purpose of this submission, are being reclassified by their employer as something else. And we say this is not a hearing that is going to go into the substantial merits of their application before the State Commission. It's not to argue the rights and wrongs of what they do and where they should be placed.

PN126

The substantial application that they have, these particular employees in the State jurisdiction, is simply protecting their rights to argue that they have a firm belief that their position is not redundant, that the job they are doing today is the same job they did last week and the week before, the only thing that's happened is the employer has changed the name. It's like having a Holden car, pulling the badge off and putting a Ford sticker and saying, "Look at my brand new Ford". Or it's the same of a - as a locomotive engine driver who was driving a diesel locomotive that then became electrified, and all of a sudden he wasn't a locomotive driver, he became a electrified driver of a device.

PN127

It's a play on words and that's what these particular employees are trying to protect. They're trying to protect their rights under their State agreement to have the merits of their case heard and determined. Now, that is where the merits of this case should go. I think I've addressed the four points that you've asked me to address, but I again would say to the Deputy President, before we can proceed even towards the public interest test, the Commission is going to have to give a answer in regard to it's jurisdiction, if in fact it has jurisdiction, and once the Commission advises the parties here that it has jurisdiction, it can then go on to determine if in fact these employees are covered by a State Award and they have particular rights under that award and agreement that are by - the substantial application of the applicant - is trying to take those rights away from them and slip them into a Federal Award.

PN128

And once that question is done, then there's only one question left, and that is, why in the public interest and how is the public interest served, by you continuing to hear their substantive application. I think I've addressed the four points, but I'm really trying to get clarity from yourself, Deputy President, on how you are going to proceed here. It's a bit of a mish mash as far as how I am to present this case at the moment, given that there has been requests for substantial submissions to be already placed before this Commission.

PN129

And I don't feel it's in anyone's interests to have a drawn out hearing to 5 or 6 o'clock tonight or to hear submissions that would go on for hours, when the parties have already had the opportunity to place those submissions in a written form before this Commission. We have addressed the substantial points and we would suggest that the Commission should act swiftly and quickly in firstly to determine the jurisdiction and then go onto the other two parts that need to be done. So I would say that the four questions that you have posed, from our point of view, indicate the way that we think this case should proceed.

PN130

THE DEPUTY PRESIDENT: Do I take it from that Mr Ferguson, that you feel that the questions are in fact the correct questions that need to be addressed.

PN131

MR FERGUSON: I think they go to part of the issue, Deputy President. The point I am trying to get across is that all parties have had substantial time to put written submissions, and I don't believe it is in anyone's interests to continue to repeat those submissions here today. We have to go to the facts. It's clear that your jurisdiction is being challenged, that needs to be addressed. It would be pointless - it would be a waste of the Commission's time to proceed any further if in fact, the jurisdiction exists for this application to proceed. So, we would ask that in dealing with this matter, the Commission take further verbal submissions if necessary, if in fact, there is jurisdiction. And if the Commissioner finds that there is - Deputy President finds there is jurisdiction, then we can proceed.

PN132

THE DEPUTY PRESIDENT: Thank you.

PN133

MR FERGUSON: And you go to the other substantial matters that you raise.

PN134

THE DEPUTY PRESIDENT: Thank you for that, Mr Ferguson. In relation to the questions, Ms Bishop.

PN135

MS BISHOP: Yes, Deputy President. The first question regarding wages and conditions being governed by a State Award or agreement, obviously the PTA's position is no, that is not the case, the wages and conditions are not governed by a State Award or employment agreement. In fact, the wages or salary and conditions currently paid to the Surveillance Operators in their acting capacity is taken from the Federal Certified Agreement as level ones on the ninth increment, as they have agreed and the PTA has agreed.

PN136

THE DEPUTY PRESIDENT: Yes. At this point, it wasn't my intention to actually have your detailed position in relation to each question, but rather just to get, if we can, understandings for the purpose of a fair but efficient hearing of what the hearing should be addressing. So the question really is, are the questions the right questions to ask, more than what the answers are to the question, if you can proceed on that basis.

PN137

MS BISHOP: I think the questions do address the central points that need to be addressed in this matter. Our argument would be - we have raised jurisdiction as an argument, we have included that in our outline of written submissions in response to the ARTBUs outline of written submissions and they were fully aware that we were going to be discussing jurisdiction as one of the points. They had an opportunity to respond to the PTA and ASU submissions, or outline of submissions and I think they actually did raise jurisdiction in that response. So, there was no - there has been no - - -

PN138

THE DEPUTY PRESIDENT: Did you say they did or they didn't?

PN139

MR BIBBY: Did.

PN140

MS BISHOP: They have objected to our objection to jurisdiction.

PN141

THE DEPUTY PRESIDENT: Yes.

PN142

MS BISHOP: So, but have not requested that it be dealt with as a preliminary issue. There's been no variation of the position that we were going to have a hearing today based on the submissions put and certainly given the requirements of section 111AAA, that the matters be not delayed unduly or prolonged, as a result of being able to make these sorts of objections, the PTA would urge the Commission to hear argument and evidence on these submissions, in full, prior to making a decision as to what would be the appropriate course of action to take. Yes, in conclusion for that point, we would formally request that the PTA be given the opportunity to put our position in a hearing in relation to this matter as anticipated and expected through our previous discussions in conference.

PN143

THE DEPUTY PRESIDENT: Excuse me one moment, I just think it's important for Mr Ferguson to hear what Ms Bishop has put, if you could just clarify that for Mr Ferguson.

PN144

MR FERGUSON: My apologies, Deputy President. I have a witness that must be at an eye specialist at 11 o'clock. I've just indicated to Mr Lewis he should leave and bow to yourself as he left.

PN145

THE DEPUTY PRESIDENT: Thank you, Mr Ferguson.

PN146

MR FERGUSON: As I was then indicating to your Associate that that was going to happen.

PN147

THE DEPUTY PRESIDENT: Yes, I do understand.

PN148

MR FERGUSON: Thank you.

PN149

THE DEPUTY PRESIDENT: That matter having now been addressed, would you continue Ms Bishop.

PN150

MS BISHOP: Yes, Deputy President. Just with regards to the other three questions, if I could just very, very briefly indicate. Are the wages and conditions subject to an industrial dispute as defined in section 4? We would argue not. Since we've argued not, we wouldn't need to address the issue about the dispute extending beyond the limits of one State. And the final question - - -

PN151

THE DEPUTY PRESIDENT: You would not need to?

PN152

MS BISHOP: No, Commissioner - Deputy President, sorry. And - - -

PN153

THE DEPUTY PRESIDENT: For which reason?

PN154

MS BISHOP: Because it is not regarded as a dispute due to the implied constitution of limitation, because it is an agency of the Crown that is abolishing these positions. But I will explain that in fuller detail when - - -

PN155

THE DEPUTY PRESIDENT: Yes. Are you saying that the question is appropriate or not?

PN156

MS BISHOP: It is appropriate.

PN157

THE DEPUTY PRESIDENT: Yes.

PN158

MS BISHOP: Yes, Deputy President, but the submission will address that.

PN159

THE DEPUTY PRESIDENT: Yes.

PN160

MS BISHOP: And the final question with respect to the public interest, if the - the PTA submission would include within that question the primary considerations of the viewpoints of the employer and the employees, but in summary, I would just like to point out that this variation and this position in terms of the redundant positions of Help Telephone Operator, would give these employees a pay rise and improved conditions. The PTA would obtain operational efficiencies and improve our service to the public. There would only be one possible party who would gain from the Commission granting this section 111AAA and that would be in relation to perhaps internal Union issues. It certainly wouldn't be relevant to the views of the employers or the employees.

PN161

MR FERGUSON: Deputy President, I object. Those submissions aren't going to the heart of the matter.

PN162

THE DEPUTY PRESIDENT: Mr Ferguson - - -

PN163

MR FERGUSON: They are making accusations about the bona fides of this union.

PN164

THE DEPUTY PRESIDENT: Mr Ferguson, I would just ask if you would just wait until Ms Bishop has answered my question as to whether these four questions are the appropriate questions, and then certainly, there will be an opportunity for you to make that point.

PN165

MS BISHOP: So in summary, I would argue that it is certainly not in the public interest to proceed with granting section 111AAA and that concludes the PTA's submission.

PN166

THE DEPUTY PRESIDENT: So I take it then that your response to what I put to you is that basically you would agree that those four questions are the correct questions that should be addressed in this hearing.

PN167

MS BISHOP: Yes, Deputy President, definitely.

PN168

THE DEPUTY PRESIDENT: Thank you. Mr Ferguson, did you wish to raise an objection now, because there will be the opportunity of course as the hearing proceeds. We are only dealing now with the preliminary matters.

PN169

MR FERGUSON: Well, I do object to advocates that are not addressing what's been placed before them. To make assertions from the bar table that this union has internal machinations, or has an alternative motive other than to represent the rights of its members and the particular employees that are the subject of the substantive application here, is just not on. We don't accept it and we believe that those words just uttered should be totally disregarded. They are disrespectful to this union and they are disrespectful to the employees and those people that seek to represent those employees and we object very strongly for those statements being spoken in this place, that goes to the heart and the character and the nature of how this Union operates. It's totally abhorrent and unprincipled and should not be entertained by this Commission in any way as a submission.

PN170

THE DEPUTY PRESIDENT: Your objection is noted, Mr Ferguson.

PN171

MR FERGUSON: Thank you.

PN172

THE DEPUTY PRESIDENT: Mr Bibby?

PN173

MR BIBBY: Thank you, your Honour. As to your four questions, I would agree that they go to the nub of the matter, but in responding very briefly, your Honour, I would like to point the Commission out to an authority which has been submitted to the Commission by the parties, and that is the matter between the Australian Workers Union of Employees Queensland, the State of Queensland and the Australian Maritime Officers Union, and it's found at print 4289. Your Honour, the reason I want to raise this is that I think this is an authority that will provide some assistance to the Commission in determining a process by which to deal with this particular matter. And if I can, once again, bear with me, because I may have a different decision to you, but I am referring to page 25 of the decision which lists some 10 dot points or 10 specific points which - do you have them?

PN174

THE DEPUTY PRESIDENT: Yes, I found that.

PN175

MR BIBBY: Thank you.

PN176

THE DEPUTY PRESIDENT: I think it's the penultimate page.

PN177

MR BIBBY: It is. Well, something like that, your Honour. But, if I understand Mr Ferguson, I think a point we could probably reach agreement on is that your first question goes to the issue of jurisdiction. If I can provide my interpretation of that question, it is - would be as follows. Are, and this is crucial, the Surveillance Operators governed by the terms and conditions of a State Agreement or a State Award? And sir, if I may now refer to that decision, and I'll refer to it as the MOU case, that first question, or the first set of principles that is outlined there, notes that section 111AAA(1) operates with respect to an industrial dispute in relation to particular employees. Step 1.

PN178

So, if I may just assist the Commission in this regard, it would seem to me perhaps a quicker way of dispensing with this matter would be to deal with the jurisdictional issue, and that would be for the Commission to be appraised of the facts as to whether, as I said before, the Surveillance Operators Level 1 are covered by a State Agreement or a State Award. Just going through the points, I think Mr Ferguson is referring, when he talks about putting the Commission on notice, to point 5 of this particular principle where the Full Bench notes:

PN179

An application under section 111AAA will put the Commission on notice (assuming it is not for other reasons already on notice) that a State

PN180

...(reads)... satisfaction, will require the Commission to cease dealing with the dispute in relation to the particular employees.

PN181

And then the second part of this particular section emerges. And that is,

PN182

Unless the Commission is satisfied that ceasing would not...

PN183

THE DEPUTY PRESIDENT: Are you reading from the primary submission, or the right of reply?

PN184

MR BIBBY: Sorry sir, I am reading from the Full Bench decision.

PN185

THE DEPUTY PRESIDENT: Oh, from the Full Bench decision, yes.

PN186

MR BIBBY: Sorry, my apologies.

PN187

THE DEPUTY PRESIDENT: Yes, indeed you're back to the decision of - - -

PN188

MR BIBBY: Sorry, yes it's print 4289.

PN189

THE DEPUTY PRESIDENT: Yes.

PN190

MR BIBBY: Sorry, my apologies there, sir. But if we can just go down

PN191

to point 5.

PN192

THE DEPUTY PRESIDENT: Yes, point 5.

PN193

MR BIBBY: So, what I am saying is consistent with the view that I think is emerging from the bar table, it's the understanding that:

PN194

The Commission in this matter is now put on notice that a State agreement or a State Award may govern the wages and conditions of employment of the particular employees.

PN195

Now, we're interpreting, or interpolating here, to say particular employees equals Surveillance Operators Level 1. And then it says:

PN196

Having been put on notice of the situation which if established to the Commission's satisfaction, will require the Commission to cease dealing with the dispute in relation to the particular employees.

PN197

Now that dispute, so that we are all clear, is the dispute which is, if I can put it broadly, contained in application 4403. That is, the application to amend the award. And I think your third and fourth - or your second and third question, seeks to address those matters. But if I may point the Commission out to principal 7 under the Full Bench's decision, where it says:

PN198

If as a result of determining an application under section 111(AAA), or otherwise, the Commission is ...(reads)... of the particular employees. Section 111(AAA) has no operation and the Commission may deal with the industrial dispute.

PN199

So, what I am drawing the Commission's attention to is the fact that there is in fact, the Full Bench I think has dealt with these matters on a number of occasions. This would seem to be the seminal decision and it would seem that subsequent decisions make reference to these principles, these 10 principles. And so, if I can go back to your questions which obviously dovetail with the Full Bench's observations, and answer them very, very briefly. Are they governed by - that is are the operators - - -

PN200

THE DEPUTY PRESIDENT: Well, at this stage there is no need to actually answer them.

PN201

MR BIBBY: Thank you.

PN202

THE DEPUTY PRESIDENT: There will be the opportunity as we proceed. I wanted just to take it a step at a time, if there was something however that related to you answering about the relevance of those questions, please continue otherwise the opportunity will be later.

PN203

MR BIBBY: Well, sir, the relevance as I see it is that and I think Mr Ferguson has alluded to this. The first question really is the question that addresses the jurisdictional fact that has to be established, we would see that that would need to be established by hearing the evidence both of the union, that is the ARTIBU and the PTA on that matter. If the Commission then comes to the view that a State Agreement or a State Award does not bind the terms and conditions of the Surveillance Operators then in effect, I think Ms Bishop alluded to this, then the remainder of the questions fall away because there is no jurisdiction, the Commission simply does not have jurisdiction to hear the matter. Unless there is anything arising, your Honour, I'd leave it there.

PN204

THE DEPUTY PRESIDENT: That does assist, your reference to AWU and the State of Queensland and the AMAU decision does assist.

PN205

MR BIBBY: Thank you.

PN206

THE DEPUTY PRESIDENT: And indeed you have answered the question that I put and my understanding is you have added in effect a further - perhaps a sub-question of the first one which would be to the effect: are the wages and conditions of these Surveillance Officers governed by a State Award or Agreement.

PN207

MR BIBBY: Correct, your Honour. And once again, obviously the binding authority then goes on to say: if it isn't then that ends the matter, which I think is Mr Ferguson's point.

PN208

THE DEPUTY PRESIDENT: Yes. Thank you for that. I would like then just to confirm my understanding of what has been put to me by the parties that the questions that I raised are appropriate to the conduct of this hearing and as per the submissions that have been made by way of explanation and supplementation to those questions. I am of the view that the hearing should proceed accordingly to address those issues as appropriate. I would like to now turn to a submission that Mr Ferguson put earlier on, which was the proposal that the Commission should proceed quickly, it should address the jurisdictional question, or questions first, and that there have been written submissions which have been lodged.

PN209

My view, and certainly I would be willing to hear any further comments from some of the parties, is that I am bound to, or required to ensure that procedural fairness occurs in these proceedings and whilst sharing Mr Ferguson's desire that these proceedings should be as quick and as efficient as possible, if I am confronted by a situation where there are submissions before me which are contested, perhaps strongly contested, then evidence is appropriate and in leading that evidence it would then be for the Commission to determine and find any facts that might arise from the conflicting evidence. However, if the facts were agreed then I would wish the parties to indicate that so that unnecessary time would not be spent where there is no need, that would be my response to what you put Mr Ferguson. Would you wish to have any further suggestions, yes.

PN210

MR FERGUSON: Well, I would like to suggest Deputy President, that perhaps a short adjournment of 20 minutes be granted so that the parties may have a discussion to see if in fact, there are some of the points that can be agreed. If we're - if we're far apart then we'll advise madam Associate swiftly and quickly and reconvene the hearing. But, I would think that we should be able to agree to some agreement around the place if in fact there is going to be a continued jurisdictional argument.

PN211

THE DEPUTY PRESIDENT: Thank you for that. I would like to get the views of Ms Bishop first on whether an adjournment would be appropriate and what purpose you would see in the adjournment given that it would, as it were, eat into the hearing time that has been allocated. My concern would be that if - I would very much welcome those discussions if they were going to be productive and would - as Mr Ferguson, I think is suggesting, would save time but if they were not going to be productive I would be concerned if they were simply going to add to the length of the proceedings today. So, I would like your views, Ms Bishop on that?

PN212

MS BISHOP: The PTA sees no point in further discussions among the parties we've actually reached our position, we have made our submissions and I think the issue would be better served by having the matter heard without an adjournment.

PN213

THE DEPUTY PRESIDENT: Thank you.

PN214

MS BISHOP: Thank you.

PN215

THE DEPUTY PRESIDENT: Before inviting Mr Bibby to give his view, I would point to my understanding of what Mr Ferguson was raising, which was that the intention is if the parties are able to agree facts in relation to whether the wages and conditions of the particular employees, whether they would be the Surveillance Officers or not, or be other particular employees are governed by a State Award or Agreement, and if so, what. Yes?

PN216

MS BISHOP: Deputy President, we have been discussing this restructure with the ARTBU and the ASU on a formal basis since August. And I think the points of contention are fairly - or the lines of disagreement are fairly clear between us, so I think we would not be supportive of a decision to adjourn temporarily to re-ignite old ground.

PN217

THE DEPUTY PRESIDENT: Yes, I hear what you say. One consideration in relation to the adjournment proposal is that Mr Ferguson in his written submissions indicated that - I am sorry, these were the submissions of the respondent. You indicated that points 1, 3, 4, 5, 6, 7 and 8 were not contested, is that correct?

PN218

MS BISHOP: It sounds right. Yes, that sounds correct, Deputy President.

PN219

THE DEPUTY PRESIDENT: Is that a relevant consideration here, to the conduct of this hearing and to what Mr Ferguson has proposed?

PN220

MS BISHOP: I don't think there's any question regarding that those points have been agreed and as it go to basic facts, as I understand it.

PN221

THE DEPUTY PRESIDENT: Is there further ground where there could be agreement reached on facts, or could be explored perhaps.?

PN222

MS BISHOP: Deputy President, the other points in the applicant's submission go to argument. For example, point 2 raises the issue of the Help Telephone Operators again. Point 9 we would argue that there's more to this matter than what is indicated in point 9. Again, point 10 the Help Telephone Operator issue is raised again and we would argue that that's not relevant. So, the other points in that submission from the ARTBU, are contested. I can't see that that would change by discussing it further but if - we will be guided by the Commission, if the Deputy President feels that it would be best, then we will agree to it. Thank you.

PN223

THE DEPUTY PRESIDENT: Yes, Mr Bibby, you're next and then Mr Ferguson again.

PN224

MR BIBBY: Your Honour, I hear Mr Ferguson's request, but can I say for an expeditious hearing what a way forward is, that there has been and I have in front of me some fairly clear documentation about the specific differences between the duties of the Help Telephone Operators and the Surveillance Operators. In particular I'm referring to a memo that was sent to Mr Ferguson and Mr Curran on 9 September from Mr Italiano and Mr Gillam. Mr Gillam is present in the court and what - as a proposal because this gets to the threshold point. My suggestion is that, the PTA call their evidence and put into evidence the clear distinctions as they see them.

PN225

Mr Ferguson then has a right of cross-examination and that will at least put before the Commissions, two things, firstly the context of the restructure and then the very important point of the differences between the duties. Then the Commission is in a position to make a determination on that first question. That would speed up the process and we can get going and as I'd understand it, it would at least put the Commission at least that position to be able to progress the matter, if it pleases the Commission.

PN226

THE DEPUTY PRESIDENT: Yes, I take it you do not favour an adjournment?

PN227

MR BIBBY: No, no, your Honour. I'm just trying to see that - in effect rather than talk about it Mr Ferguson can cross-examine and could demonstrate, or point - and from there if he needed to call his own witness evidence he could to at least appraise the Commission of the, the issues concerning the specific position that we are looking at.

PN228

THE DEPUTY PRESIDENT: Yes. Before we - thank you Mr Bibby. Before calling on you Mr Ferguson, to give a right of reply on that matter t appears that the, the governance, when I say the governance I'm using the word in the Act, by a State instrument and there I'm referring to an award or agreement, clearly, needs to consider and to resolve the position of the Help Telephone Operator positions and the Surveillance Operator positions, in relation to who are the particular employees for the purpose of the provision in section 111(AAA). And I wondered if, Mr Ferguson you could address in your comments whether you felt there could be a helpful discussion during an adjournment in an attempt to agree some facts in relation to governance in relation to that issue. Does that - is that clear to you?

PN229

MR FERGUSON: Not - not crystal clear, Deputy President.

PN230

THE DEPUTY PRESIDENT: Well, for example when those employees were made redundant and whether in fact that is relevant to the determination the Commission will need to take those sorts of issues. I don't have anything more specific in mind than that, but I invite your comments.

PN231

MR FERGUSON: Well, my - I'll address - my first comments will be to Mr Bibby's comments about adducing evidence on what a Surveillance Operator does and a Help Telephone Operator does, that is not what this application is about. It is not application about who is doing what, and what their duties are. This is an application which advises the Federal Commission that it has a substantive application before it, and that particular employees that this union represents are subject of an industrial dispute that's probably been lodged in the West Australian Industrial Relations Commission.

PN232

The PTA, in its own submission, has agreed that the applicant union has coverage of rail employees engaged. It advises that on 11 August it advised that the Telephone Help Operator positions would be made redundant, it agrees that on 25 August the applicant union filed a dispute in the West Australian Industrial Relations Commission. It agrees that there was two conciliations conferences held in relationship to it, and that a memorandum of matters for hearing and determination has already been put together by the West Australian Industrial Relation Commission. If I go to the memorandum matters for hearing and determination, it is quite clear that the West Australian Industrial Relations Commission is going to the heart of the issue. Are these the same horses, or are they the same horses but part of a ringing and it's just had a spot painted over it. That is the difference.

PN233

The PTA concedes that those things have happened, those things were on foot before their application was even made in this place. They agree that the matter is listed for 20th, 21st and 22nd of this year, December. They are agreed facts, they agree and establish that there is employees who are going to be called if they have their way, Surveillance Operators who are trying to defend their rights under a State Agreement. Now those - those matters are agreed. Now it's pointless to say that they are not agreed because they admit them here. Now once they admit that there is a dispute before the Industrial Relations Commission of Western Australia, which goes to the heart of this issue, it's for this union and we have provided the documentation to you, yourself, Deputy President.

PN234

We have provided a copy of the Industrial Agreement under order as issued by Commissioner Smith that clearly lays out Telephone Help Operators in the schedule. That same agreement provides at clause 38 that they were going to be part of a reclassification exercise. These particular employees never envisaged that their reclassification would take them out of their agreement and out of their base coverage into a field where no-one is consulted in terms of, if in fact they even wanted to go into Federal Award. It's been something between an employee and a compliant union have sat down and said: yeah, we will take - we'll pick them up. Those points are agreed.

PN235

Now, again, we need to address the question of jurisdiction. Jurisdiction needs to be addressed and put to bed quickly. We would say that once jurisdiction is established then on the respondent's own admissions it admits that there are applications in the West Australian Industrial Relations Commission that they are listed for hearing, that there has been two conciliation conferences and that the heart of those matters relate to the duties and responsibilities of the particular employees that are for the purposes, are called Telephone Help Operators, which they now wish to name Surveillance Operators.

PN236

Now, there should not be the need in my view, for a long winded hearing in this matter. The substantial facts have been admitted by the applicant. What needs to be addressed is in fact their jurisdiction arguments, that basically you say that the RBTU has no right advising this Commission that it should cease dealing with the matter, when the RBTU has clearly demonstrated and the respondent has agreed in its own written submission, that in fact those matters are before the West Australian Industrial Relations Commission and are listed for hearing on 20th, 21st and 22nd. Now they - they are substantial facts, we don't need to go over those things they've been admitted.

PN237

So, I would just ask that the Commission ask for some submissions if it needs further submissions, although the parties have already put the written submissions in, do you make a ruling in relationship to in fact, do you have jurisdiction to proceed and if the answer to that question is: yes, we would then submit to you that those points have been agreed, that there is a dispute in the West Australian Industrial Relations Commission that addresses the declared redundancy of Telephone Help Operators and it's a matter of a memorandum of matters that was determined, in conjunction with the Public Transport Authority as to what matters Commissioner Smith would address herself to, at that hearing to determine the matter.

PN238

Now, they can't go into one jurisdiction and say: yes, Telephone Help Operators, yes - we will argue the very points that Mr Bibby wants to put Mr Gillam in the witness box for. That has already been described as creative writing by this union, Commissioner Smith has already been down there and done one inspection of the work place to see if in fact there has been a substantial change in the task jobs and responsibilities that they do. Now, I can put my people up there to give evidence who are currently working as Surveillance Operators and their evidence will be they're doing exactly the same job.

PN239

THE DEPUTY PRESIDENT: Mr Ferguson, I'm going to raise the - - -

PN240

MR FERGUSON: Well, I'm getting rather frustrated up here Deputy President because we are wasting a lot of time on matters that have already been agreed - - -

PN241

THE DEPUTY PRESIDENT: Mr Ferguson, I had actually been exploring the question of an adjournment.

PN242

MR FERGUSON: Hm.

PN243

THE DEPUTY PRESIDENT: That you had proposed. In principal I would have favoured an adjournment on the basis that you had felt that there could be some productive and useful purpose in an adjournment.

PN244

MR FERGUSON: One would think there was.

PN245

THE DEPUTY PRESIDENT: However, having heard what's been put by the PTA and the ASU as employer and intervener, I am having difficulty in seeing that there would be an environment for a constructive adjournment.

PN246

MR FERGUSON: Well, it would seem to me that at least the PTAs advocate could clearly demonstrate, or advise the Commission that there is a dispute between telephone help - the description of Telephone Help Operators and Surveillance Operators, that they were and are the same employees that were there in the dispute and are the persons that are the subject of this dispute.

PN247

THE DEPUTY PRESIDENT: Well, Mr Ferguson, I will be persuaded by your submission but only to a lesser extent than you have proposed, in that I unfortunately am not filled with optimism and confidence that the adjournment would be fruitful, even though I would hope that it would be. So, I will grant approximately 10 minutes for you to have the opportunity to pursue whatever it is that you wish and if you are able to make any useful progress, then I will certainly welcome hearing that on return.

PN248

MR FERGUSON: Thank you, Deputy President. Thank you. Thank you, Deputy President.

PN249

THE DEPUTY PRESIDENT: The Commission will adjourn for approximately 10 minutes.

SHORT ADJOURNMENT [11.25am]

RESUMED [11.55am]

PN250

THE DEPUTY PRESIDENT: We resume after a brief adjournment which was somewhat extended, upon request, and I now wait to hear the report back from Mr Ferguson.

PN251

MR FERGUSON: Deputy President, you may well be pleased at the extra time. It seemed to me that we were not progressing in a very positive way and that there was a way that both our interests could be addressed. Now, I've sought to reach an agreement, which I have reached with the employer, and that is that the ARTBU will cease its 111AAA application before yourself to allow the PTA to have inserted into the award the level, the position which they wish to insert. Now, that deal is done on the basis that once the West Australian Industrial Relations had heard the substantive matter, which is the argument if it is a true redundancy, and if the redundancy is found not to be -not to have occurred and the position has not substantially changed in its character and skills and work load, then the PTA has given a commitment that it will apply to the Commission to revoke the classification that it seeks to insert today.

PN252

Now, I think that is a reasonable way around it. It doesn't waste the Commission's time, it certainly protects the interests of my members and, if anything, it gives an administrative benefit to the employer that should they be successful, then they can move straight forward. That is the proposition as I understand it. My learned friend next to me may wish to clarify any words that I've words, but the thrust of it is if the State Commission finds that it not a genuine redundancy and there has not been significant change to the character of that job, then my good friends will move to revoke the - their - that classification that they seek to insert today. That is all I have.

PN253

THE DEPUTY PRESIDENT: Thank you, Mr Ferguson. Ms Bishop?

PN254

MS BISHOP: Thank you, Deputy President. Just to clarify for the record that PTA and ASU will agree should the ARTB, well, as they obviously are, agree to withdraw their section 111AAA application so that the section 113 variation can proceed by consent and the Surveillance Operator position will be added to the Federal Award. In the event of a determination in the State Commission that the Help Telephone Operator position is substantially the same position as a Surveillance Operator and that the ARTBU have coverage of that, then the ASU and PTA will apply to delete the Surveillance Operator position from the Federal Award. That is the position as agreed during the adjournment, thank you.

PN255

THE DEPUTY PRESIDENT: Thank you, Ms Bishop. Mr Bibby?

PN256

MR BIBBY: Well, what a happy event, your Honour. I will just to - I have no submissions around that particular matter. My only concern is, in the light of Mr Ferguson's commitment, that we can now proceed with 4403. Sir, I'm aware that you issued an order on 19 November 2004 and you added, at that point in time, four specific classifications and so, clearly, in the light of the agreement between the principle parties to the 111AAA matter, my suggestion is that 4403 can now proceed by including the Surveillance Operator in there as well. So, my only submission is that 4403 progress and an order issue in the terms - we could - I think it is fairly straightforward, your Honour, but if you need assistance as to a draft order, I'm sure we can provide it to your chambers fairly quickly.

PN257

THE DEPUTY PRESIDENT: Thank you.

PN258

MR BIBBY: Thank you. Nothing further.

PN259

THE DEPUTY PRESIDENT: Mr Ferguson?

PN260

MR FERGUSON: Deputy President, given that the union placed a section 111AAA application before yourself, are you satisfied that the arrangement between the parties is a suitable arrangement and if that is the case, I would request that we have leave to leave your presence and so you can continue on other matters?

PN261

THE DEPUTY PRESIDENT: Thank you, Mr Ferguson. Well, I would certainly wish to endorse your comment that I am indeed well pleased with the time spent in the adjournment, which was considerably more productive and positive and fruitful than I had anticipated.

PN262

MR FERGUSON: Well, I think it gives everyone a situation where the substantial merits of that task can be determined and if in fact the ball rolls this way or that way, the PTA will not be disadvantaged. Administratively, they can go forward and it just seems that it just takes a lot of time and heat out of what would have been a lengthy argument here today.

PN263

THE DEPUTY PRESIDENT: Yes, indeed. The argument may well have gone beyond 6 o'clock tonight, Mr Ferguson.

PN264

MR FERGUSON: I was starting to feel that way, sir.

PN265

THE DEPUTY PRESIDENT: The consideration that is in my mind, and I would just seek your formal confirmation on the basis of what has been put by the parties to me, that you withdraw the application under section 111AAA?

PN266

MR FERGUSON: Correct.

PN267

THE DEPUTY PRESIDENT: That being the case, then I would complement you, Mr Ferguson, on your initiative in seeking an adjournment and in the positive and practical approach, as I have indicated, that you have displayed, together with your colleagues today. I'm satisfied in the circumstances that what indeed was a complex hearing, there were four questions which I had raised which needed to be addressed and carefully considered, together with a further question which was raised by Mr Bibby.

PN268

The legal questions and the questions of fact in those matters will now no longer need to be addressed at considerable length and time of the Commission. So, taking all that in to account, I would wish to indicate that I accept that section 111AAA has been withdrawn on the basis of agreed arrangements which are recorded in the transcript and will be there on the public record in the event that the parties need recourse to them in the future.

PN269

MR FERGUSON: Thank you.

PN270

THE DEPUTY PRESIDENT: Before adjourning this matter, and having a very brief break of perhaps a minute or two before commencing the next matter, I would simply urge the parties to continue to have constructive discussions where they consider it would be helpful to progress and endeavour to resolve all of the issues in dispute that are surrounding these applications. We will now adjourn.

ADJOURNED INDEFINITELY [12.05pm]