C2003/2492, Transcript of Proceedings [2005] AIRCTrans 1089 (6 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10359-1

COMMISSIONER RAFFAELLI

C2003/2492 C2003/2493

APPLICATION BY AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE
s.111 (1)(b) - Application for an award. Not consent
(C2003/2492)

APPLICATION BY MARITIME UNION OF AUSTRALIA, THE
s.111 (1)(b) - Application for an award. Not consent
(C2003/2493)

SYDNEY

10.07AM, THURSDAY, 28 APRIL 2005

Continued from 4/2/2005

PN96

THE COMMISSIONER: I'll take the appearances again.

PN97

MR W G McNALLY: I appear with MR N KEATS for both applicants.

PN98

MR G HATCHER: If it pleases the Commission, I think I've already entered an appearance in the first matter that was with MR DUFFY. That appearance now changes. MR CROSS now appears with me in that matter and we both seek leave to the extent where it hasn't already been granted in relation to the second matter.

PN99

THE COMMISSIONER: I'm assured leave is granted. Where are we Mr Hatcher?

PN100

MR HATCHER: If it pleases, Commissioner, I'm afraid our client has fallen somewhat behind in the timetable. We apologise for that but we are sure the Commission and our learned friends will understand that given the wealth of material that's available and the sources from which it has been drawn, it took somewhat more time than may have been anticipated to obtain it. We have filed and served affidavits of the Honourable John Shaff, Mr Feeney, Mr Dearsley,
Mr Gross, a Mr Beck, Mr Harvey, Ms Jule, Mr Urmanski, Mr Rod Jones, Mr Safin and two expert reports, one by Mr Trebeck and one by Mr Merrick. We have also served an unsworn affidavit of a Mr Roger and we anticipate being in a position to serve the sworn copy and file the sworn copy shortly. We have two further affidavits, one of Mr Sorensen and one of Mr Ives, which we will file and serve by the end of this week.

PN101

We have a further affidavit dealing with each of the positions and the work duties that are performed on one of the vessels and we anticipate being in a position to file and serve that affidavit early next week. That will leave one further affidavit from an overseas witness, a Mr John Jones, who is the chief executive of Bahamian Maritime Authority and we also would hope to have that file by the end of next week, Commissioner, but - - -

PN102

THE COMMISSIONER: That's not Mr Roger Jones?

PN103

MR HATCHER: No, Mr John Jones. Commissioner, that said - - -

PN104

THE COMMISSIONER: Sorry I know this is probably not all that relevant at the moment. The second last person - someone from one of the ships is going to give some evidence as to what they do or what happens?

PN105

MR HATCHER: Yes. We apologise for the delay with that but people moving from the Ukraine to Australia have caused some difficulty with one of the changeovers. Commissioner, we also have provided to the Commission some summonses that we would wish to serve for further material. I should say to the Commission, that we've noted a couple of errors in the draft that we provided to the Commission which we can address. If the Commission has the draft, the Commission will see paragraph 5 of the draft calls for:

PN106

Original or copies of all documents recording or relating payment of membership dues.

PN107

THE COMMISSIONER: Before you go on, there's three summonses, one of which is for the AMOU?

PN108

MR HATCHER: Yes, Commissioner.

PN109

THE COMMISSIONER: Are they a party to these proceedings?

PN110

MR HATCHER: They are not a party to these proceedings.

PN111

THE COMMISSIONER: But you still want a - on that. Sorry, and also remind me - the summons are identical more or less?

PN112

MR HATCHER: Yes.

PN113

THE COMMISSIONER: Paragraph 5, you said there's an error?

PN114

MR HATCHER: Paragraph 5 Commissioner presently calls for documents relating to payment of membership dues. We accept that, that's expressed oppressively broad. We would wish to confine that to membership dues paid to the International Transport Workers Federation. We'll provide an updated draft, Commissioner, but we thought it convenient to deal with it, while we were on our feet. The other material that we will also seek to call for Commissioner and I wouldn't wish to be held to the way I praise this on my feet, but when we do provide the draft summons to be issued, it will include a call for a category of documents relating to any action taken by the unions or offices of the unions to enforce agreements recognised by the International Transport Workers' Federation. If it pleases the Commission.

PN115

THE COMMISSIONER: Yes, Mr McNally.

PN116

MR McNALLY: We wish to have the matter listed for hearing and the difficulty of that is we will be filing an application to strike out the evidence of the respondent. We will wish to be heard on content of the subpoenas or some which haven't been served on us, or copies haven't been made available to us. We've read the affidavits that have been served. More than 90 per cent of the content is not relevant to the proceedings in our submission. The suggestion is that the matter be listed for a day, the first opportunity, availability of the Commission. Let that argument to proceed - this is only a suggestion and it's very much in your hands - with a view to the formal hearing of the matter concluding as the Commission foreshadows the last few weeks of May or early in June.

PN117

We haven't complied with the direction to file our evidence by last Friday because any evidence that was relevant in which to contest - and forming the view that
90 per cent of it is irrelevant, we formed a view subject to the Commission, it's better to argue the relevance of it before we direct our mind to filing evidence in opposition, if necessary. If the Commission pleases.

PN118

THE COMMISSIONER: You want a day's hearing to - - -

PN119

MR McNALLY: It may take longer

PN120

THE COMMISSIONER: You want a hearing to enable you to put to the Commission that the material filed on 8 April or that has trickled through since then and will be over the next week or so that, that be struck out on the basis that it's not relevant.

PN121

MR McNALLY: Yes, and doesn't assist the Commission in determining the award.

PN122

THE COMMISSIONER: Secondly, to respond to the summons.

PN123

MR McNALLY: We haven't seen what the summons envisages, but if it does deal with the relationship to the ITF it would be irrelevant in any event.

PN124

THE COMMISSIONER: Yes, I see.

PN125

MR McNALLY: It seems to me that if some of the material is relevant, it relates to matters that wouldn't be in dispute and all that ..... I guess the ITF of which Mr ..... is on the executive I think.

PN126

THE COMMISSIONER: Yes, Mr Hatcher?

PN127

MR HATCHER: If I may deal with the latter proposition first, Commissioner. That's the easier one to grapple with, the question of the subpoenas or summons. It's not unusual that my friend wouldn't have copies of the summonses because the summonses haven't issued. Having said that, once summonses do issue, his clients have an undoubted right to challenge the summons as an abuse of the processes of the Commission and that will be the test. Anticipating the challenge we couldn't properly resist the Commission's setting some time down to hear that challenge to the summonses.

PN128

The question of the relevance of evidence is in a different category, however. I've had cause to look at this in recent time, unsuccessfully I might add, having advanced the application that Mr McNally now does in the Federal Court. My friend says it's not the Commission but the Federal Court does generally apply Australian law. One hopes - - -

PN129

THE COMMISSIONER: One hopes so.

PN130

MR HATCHER: If it pleases, Commissioner, if it is said that the evidence that we put on is an abuse of the processes of the Commission, then clearly that matter can be entertained. That, as I understand what's said by my learned friends, is not the allegation. Rather they would say that the case before the Commission, properly understood, doesn't raise these issues. The difficulty with that submission is for the Commission to rule on it, the Commission needs to have the case as properly understood before it. In the case of - it may be surprising to hear the name but, Ramsay Butchering Services Pty Limited v The Employment Advocate. I had the misfortune to attempt to argue before her Honour, Keiffel J, that she should, because of the nature of the evidence in those proceedings, entertain an application to strike out the evidence as an abuse of process.

PN131

Her Honour found that she couldn't even deal with that test without having the case properly before her. The only convenient way to case manage it was to set the case down for hearing and deal with the objections to evidence as they fell. Of course that, in those proceedings, leads to the consequence that the respondent to the application needs to elect whether they're going to deal with the evidence or not deal with it. They need to make a forensic judgement call as to whether they will succeed in their objections to evidence or not. That's of course exactly the position that, I should concede candidly, my client sought to avoid in the Ramsay Butchering Services case in the Federal Court and Mr McNally seeks to avoid in these proceedings.

PN132

He asks the Commission to form a preliminary view about what might or might not be relevant in order to save his client's exposure by dealing with or electing what material to deal with. If as he says they don't challenge any of this material, they accept it all - - -

PN133

MR McNALLY: I haven't said that actually.

PN134

MR HATCHER: My friend says he hadn't said that. The transcript will record exactly what he said.

PN135

MR McNALLY: Some matters, I said.

PN136

MR HATCHER: If it's not an issue, it's not an issue and it won't take terribly much time. In fact the Commission has some experience of seeing large amounts of material go through unchallenged - in these very proceedings. We say it is all relevant to the matter before the Commission. The ITF Agreement is very much a feature of our client's case as the Commission will apprehend. We maintain that we have an agreement. We have an agreement with a recognised organisation and it's an agreement that would be respected by this Commission and much of this evidence is directed to not only how that agreement is arrived at and how it is put in place and how any other form of regulation would be unsatisfactory to the people to whom it would be applying.

PN137

Also, to how inappropriate it would be for this Commission to impose some other award which would somehow derogate from the agreement between the parties arrived at in a manner consistent with the practice internationally. We would have thought that that material was very relevant to this Commission's exercise of its discretion. The Commission has noted in earlier proceedings that it remains a live issue whether the Commission would make any award. This material very much attends upon that.

PN138

THE COMMISSIONER: Yes, thank you. Did you want to say anything further, Mr McNally?

PN139

MR McNALLY: Only if you want to hear me but I join issue with much of what my friend says. Could I just raise a practical consideration? The alternative course that we suggest, is that the hearing days be fixed, that these witnesses be called, brought from overseas in a lot of cases, and the objection be heard in each case as the witness is called. I don't understand my friend to suggest that we can't object to the relevance of evidence to be called. It's just a question of, from a practical point of view, we thought it better to explore the relevance prior to putting the companies to the expense of bringing these people from all parts of the world.

PN140

THE COMMISSIONER: That's their choice, though, isn't it?

PN141

MR McNALLY: Yes.

PN142

THE COMMISSIONER: I don't think you have to worry about that. I'm more interested in this, what happens to your material in response?

PN143

MR McNALLY: We file that after the cross-examinations are completed if the evidence goes in. If we don't file it - - -

PN144

THE COMMISSIONER: They might need to call their witnesses twice then, wouldn't they?

PN145

MR McNALLY: Yes. They may all have to. I don't know and I won't know until I know whether evidence is admissible or not. It was a practical course I suggested but my friend - and it's a course that the Commission obviously has jurisdiction to deal with it. The Commission seems to have not ..... it's complete control of how it informed itself as to what's relevant and what's not relevant. There's an obligation on the Commission to make an award at the end of the day in any event and that's what we're working towards. I suspect that what is happening is that although the time for filing evidence in the application by the employers is now past, that some attempt will be made belatedly to file that - this evidence in those proceedings. The evidence seems to have more relevance to some issues there than in this matter.

PN146

THE COMMISSIONER: I couldn't follow that last bit.

PN147

MR McNALLY: The respondent was ordered to file their evidence in their application for an award - - -

PN148

THE COMMISSIONER: Yes, that's right. Yes.

PN149

MR McNALLY: I can only guess at what they're about but I thought I'd be practical about the matter. Otherwise if my friend resists it and you come to the conclusion that we can't order as we seek, then we'd seek to fixing hearing days now, if the Commission pleases.

PN150

MR HATCHER: Sorry to be playing ping pong, Commissioner, but there are some matters raised there for the first time that need to be dealt with. The first matter is, I should say candidly we will be asking for orders that evidence be taken by video link in respect to overseas witnesses. That's not an uncommon order in these matters.

PN151

THE COMMISSIONER: They're all in places that such can be facilitated?

PN152

MR HATCHER: We will ensure that it can be accommodated. If it can't then we will have to have them available viva voce, otherwise we can't lead the evidence if it is subject to a request for cross-examination. That said, the procedure my friend suggests of, we go through the trial and then his client elects whether to call evidence in reply is, with all due respect, bordering on the bizarre. I acknowledge the force of what he puts of the Commission having control of its own procedure but it's a control that is tempered by rules of natural justice.

PN153

If the Commission finds favour with our submission that rulings on evidence should be dealt with at trial, then it will be as I earlier put, a matter for Mr McNally's client to make a call. They will either want to put evidence on reply on the basis that it may or may not be read subject to the Commission's rulings, or they will not. They would not, in our respectful submission, be given a chance to have another run at the case after the trial.

PN154

COMMISSIONER: Yes.

PN155

MR McNALLY: You can't put evidence on in reply to cross-examine witnesses when you don't know what they're going say in cross-examination. That's the difficulty with it.

PN156

THE COMMISSIONER: Yes, but you know what they're going to say in examination.

PN157

MR McNALLY: But I don't know what they're going to say in
cross-examination. I mean, I will give you an instance of that, if the Commission pleases? We filed - back in the good old days we didn't - it was trial by ambush but no-one filed anything. An instance of that was in the Hakula case, where we had the evidence in reply which became unnecessary because of
cross-examination, that was only a case of one witness, but this covers the evidence which I assume you haven't read. It covers the whole structure as an international shipping transport system and expressions by politicians and experts and alleged experts. It's a very wide area.

PN158

If my friend doesn't wish to adopt the course we suggest and the Commission doesn't find any favour in it then we'll fix the hearing date. The case is never finished, if the Commission pleases.

PN159

THE COMMISSIONER: What I propose to do is - what I think I should do is, obviously deal with the - have a hearing to deal with the summons issues. I must say, I won't make any comment, but they don't deal with just one point some of it goes to the number of awards but generally goes to this ITF matter. It seems to be labouring the point but anyway maybe it will become obvious as to why it's relevant, so we'll deal with that objection there.

PN160

In relation to the evidences filed Mr McNally, I'm happy if you want to revisit that question on that day but if you have nothing else to say then I'm tended to - I think I said it previously, of whether it was this matter or certainly the CSL union matters, that I - notwithstanding the perhaps the cost, et cetera involved that purely on the basis on fairness, I would rather erred on the basis of, more in than leaving something out. I mean I'm not attracted to excluding the material without hearing it.

PN161

Secondly, I'm not attracted to having the people give the evidence and explaining exactly - explain what they're saying and then Mr Hatcher telling us why it's relevant and then you somehow challenging it and you might succeed with some and not the other and then when we follow that with your material in response which then invites the other side to examine their relevant witnesses as to what they now say about your position.

PN162

I'm happy to revisit it when we deal with this summons but as it stands, my view is that the material should stay in. It may be struck out or be regarded by the Commission as irrelevant and not helpful in due course but it does form the case, at least at this stage. You're obligated to put your material in response or no material, perhaps some are relevant and some are not.

PN163

The third issue is this; that shouldn't preclude us setting dates for the hearing of the matters. Obviously, within that time frame is the hearing of the summons and the filing the decision of the Commission - perhaps we can dispose of that on the day, if not very shortly after. Then of course, time to file your material which was to be last Friday but we now understand that hasn't occurred.

PN164

MR McNALLY: They're still filing theirs.

PN165

THE COMMISSIONER: I understand that - no, I am not critical I am just saying that's why it hasn't happened. What do you wish to do Mr McNally?

PN166

MR McNALLY: I think that you indicated earlier, if the Commission pleases, you're looking from here into the last weeks of May or the early weeks of June that - I'm not sure what you had in mind towards the end of May? We would move it if it was decided to be available to conclude this matter. We need probably 14 days.

PN167

THE COMMISSIONER: Fourteen days or 10 days?

PN168

MR McNALLY: Ten days, if my friend agrees along.

PN169

THE COMMISSIONER: Mr Hatcher.

PN170

MR HATCHER: Commissioner, certainly a day that might be fixed for dealing with the summons.

PN171

THE COMMISSIONER: Yes, we will sit that in there somewhere.

PN172

MR HATCHER: If my friend is in a position to be able to tell us when he'll have his evidence in reply available then there is no reason why we can't proceed to set dates. I think on the last occasion we provided an estimate of 2 to 3 weeks for the hearing. That remains our position, subject to of course, how much
cross-examination that I suspect is dependent upon the rulings of the Commission on relevance. We're in the Commissions hands as to how much time is set aside.

PN173

THE COMMISSIONER: Let's just deal with the first issue, you're right. How about 12 May for the summons?

PN174

MR HATCHER: If it pleases the Commission, I'm not available on that day - my learned junior is - sorry, not on that date but the following day, the 13th, if the 13th is convenient?

PN175

THE COMMISSIONER: Mr McNally.

PN176

MR McNALLY: It says that the Industrial Relations Society.

PN177

THE COMMISSIONER: What about the 11th, the afternoon of the 11th?

PN178

MR HATCHER: At this stage, both myself, and my learned junior are committed on that day, Commissioner. Does the Commissioner have the 17th?

PN179

MR McNALLY: What about the 10th?

PN180

THE COMMISSIONER: No.

PN181

MR McNALLY: The 13th?

PN182

MR HATCHER: We'll do it if the Commission has available the 17th, do you have the 17th?

PN183

THE COMMISSIONER: That's a bit late isn't it, maybe not?

PN184

MR McNALLY: If you don't think that it's too late it's alright with me. I don't know what's in the summons.

PN185

THE COMMISSIONER: There's quite a bit of material that you didn't get, so maybe not - I don't know? The 9th of May is no good is it Mr McNally, we've got Cooler then, haven't we?

PN186

MR McNALLY: I wouldn't think the - - -

PN187

THE COMMISSIONER: Alright, let's do it the 13th. We will do it at ---

PN188

MR McNALLY: 9:30 am?

PN189

THE COMMISSIONER: Yes. That takes care of that the next - now given that, Mr McNally - sorry Mr - we might go off the record.

OFF THE RECORD

PN190

THE COMMISSIONER: So, the tape wasn't even moving?

PN191

COURT MONITOR: No.

PN192

THE COMMISSIONER: Okay, well, do you want to say it again or not?

PN193

MR McNALLY: I just indicated that, to sum up what I say, that it's going to be difficult to file evidence in reply to evidence in anticipation to what might be said in cross-examination. This is an addition, I might get an answer that I didn't know was coming in which case I assume the Commission knew of my right to call evidence and they hadn't closed the file. There's also a new matter raised. There's an advantage in cross-examination when you haven't put your evidence on. Anyway, the Commission's made the decision that we've got to proceed accordingly and we'd ask for hearing days to be fixed in the last 2 weeks of this month if the Commissioner's available.

PN194

THE COMMISSIONER: When did you say your material would be in by
Mr Hatcher?

PN195

MR HATCHER: The end of next week, Commissioner.

PN196

THE COMMISSIONER: That's 6 May. You think you can get your stuff in within 2 weeks of that, do you, or thereabouts?

PN197

MR McNALLY: Thereabouts. If we know the hearing days we can sort out something.

PN198

THE COMMISSIONER: The weeks of 23 May, 30 May, 6 June and the weeks after that. The week commencing 13 June's a public holiday but that's a Monday. There's something on the Wednesday. I've kept these free so I'm really in your hands.

PN199

MR McNALLY: They say 3 weeks so I suppose if they want 3 weeks they get 3 weeks. The first available 3 weeks. Did you say the 23rd? The 23rd through to 10 June.

PN200

THE COMMISSIONER: Yes, all right. Mr Hatcher?

PN201

MR HATCHER: Yes, Commissioner. We've got some difficulties with availability but we understand the Commission's desire to fix the case. If the Commission will bear with the fact that representation may alter a bit.

PN202

THE COMMISSIONER: Yes.

PN203

MR HATCHER: If we could have the 9 days commencing 14 June, so that is consecutively through those 2 weeks.

PN204

THE COMMISSIONER: You can't do it earlier than that?

PN205

MR HATCHER: Commissioner, unfortunately we're both committed in the period before that. There's odd days when my learned junior's available. I can tell the Commission that I have a 4-week trial, an occupational health and safety matter, commencing on 9 May. It's one that I really very much doubt is going to go 4 weeks but Schmidt J set it down for 4 weeks and I'm obliged to not take other commitments for that reason. In the first week of June I'm in what I am told is a test case involving the Anti-Discrimination Act.

PN206

THE COMMISSIONER: Mr McNally, what about the week, other than the public holiday, the 13th, 20th and maybe into the 27th?

PN207

MR HATCHER: Commissioner, I'm unavailable on the 27th and 28th and my learned junior is not available but we'll accommodate that if those dates - - -

PN208

THE COMMISSIONER: You can do the 29th, 30th and 31st?

PN209

MR HATCHER: Yes, Commissioner.

PN210

THE COMMISSIONER: What about the 14th through to the 17th, the 20th through to the 24th and the 29th through to 1 July which is Canada Day which might be a bit - - -

PN211

MR McNALLY: Very appropriate.

PN212

THE COMMISSIONER: Is that all right with you Mr McNally?

PN213

MR McNALLY: Yes, Commissioner.

PN214

THE COMMISSIONER: That gives you more time than probably 20th May to put your response in. I'll leave that with you and it gives the other side some time before the hearing. You might liaise with the other side as to what date - I don't need to know unless there's a problem that you can get your material in. It might trickle in.

PN215

MR HATCHER: Commissioner, we apprehend there may be difficulties depending on what material our learned friends decide to address. We will not be unduly difficult about it unless it looks like putting us in difficulties for the trial dates in which case we'll case we'll give everyone plenty of notice.

PN216

THE COMMISSIONER: Mr McNally, I'm just concerned about the booking of overseas video facilities. If there are people that are overseas that you don't need to examine, they should be told. If you think that they do need to be examined, you need to tell the other side so that they can make arrangements. Hopefully it'll be here and overseas.

PN217

MR HATCHER: The Commission does now have video link facilities and so it can just be a matter of liaising between the registrars.

PN218

THE COMMISSIONER: Yes. Okay.

PN219

MR McNALLY: I don't know whether my friend wants to adopt this course, I wouldn't force it upon him, but if he wanted to let us have some facts that he wanted us to admit we might save the Commission a lot of reading.

PN220

THE COMMISSIONER: Yes.

PN221

MR HATCHER: Perhaps, if I could take that on one notice, Commissioner. It has an initial attraction, I should say.

PN222

MR McNALLY: We did agree on facts in the first place.

PN223

MR HATCHER: Yes.

PN224

THE COMMISSIONER: Yes. In fact, if this had gone perhaps another way I would have asked you to put down exactly what you seek to get from each of these people but I chose not to go down that path. It's a bit - perhaps putting you on a bit too much of a disadvantage. As I said, what any of these people are saying is a particular thing, it might be the other side will accept that. That might be a better way to do. In any case, we'll leave it to the parties to exchange the relevant information and to advise the Commission of relevant communication requirements. Recapping, it's 14 June to 17 June, 20 June to the 24th and 29 June to 1 July. On 13 May at 9.30 we will deal with the issue of the summonses.

PN225

MR HATCHER: I'm sorry, Commissioner, there's just one thing that occurs to me in going through those dates. If the matter goes as efficiently as Mr McNally suggests and we get through the evidence in less than that time it may be convenient to, at that stage, visit the issue of whether it's appropriate to adjourn, take some written submissions and just have a day for address rather than to follow straight through from the evidence section of the hearing? Sometimes in a large evidentiary case that's more convenient with transcript availability and so forth.

PN226

MR McNALLY: We'll be too busy reading the new Workplace Relations Act I think.

PN227

MR HATCHER: Perhaps if I just flag that as a submission we may make depending on how the evidence progresses through that period.

PN228

THE COMMISSIONER: Yes, we can't do anything now.

PN229

MR HATCHER: No.

PN230

MR McNALLY: My preferred course would be to address at the end of the evidence.

PN231

THE COMMISSIONER: Yes, we'll see. The other thing too is - exhibit MCN6 Mr McNally was this thing called the .Stadaconna and CSL Pacific Ratings Award 2003.

PN232

MR McNALLY: I can tell you a little bit about that.

PN233

THE COMMISSIONER: I'm sorry?

PN234

MR McNALLY: If you've got time I could tell you a little bit about that. That's the award, is it?

PN235

THE COMMISSIONER: Yes, but this is the award for the ratings and I'm just wondering in relation to the engineers, where's that or is that just an application?

PN236

MR McNALLY: Submission of application.

PN237

THE COMMISSIONER: Yes. Okay, that's what I needed - - -

PN238

MR McNALLY: What's happening is that in some areas of the maritime industry, reflecting upon some observations that the Commission is presently constituted in relation to overtimes.

PN239

THE COMMISSIONER: Yes, that's right.

PN240

MR McNALLY: Certified agreement similar to that award are being put in place and indeed may not happen before June but an award in those terms would be put in place.

PN241

THE COMMISSIONER: Yes, I understand that. The second thing is this - - -

PN242

MR HATCHER: I wonder if I might be heard on that thing first, Commissioner. If that is the application that's now advancing for the MUA I wonder if our learned friends could at some stage just attend to the formalities of varying the application. Apparently the application is presently in a different form and this is the first- - -

PN243

MR McNALLY: I thought I'd done that- - -

PN244

MR HATCHER: We've been told that this is the actual award application.

PN245

THE COMMISSIONER: It's an exhibit. When it was presented it would have been just a variation.

PN246

MR HATCHER: I wasn't here at the time, Commissioner, but my learned instructing solicitor assures me, and he is generally very reliable in this regard, that it's the first he's heard that that is in fact the application.

PN247

THE COMMISSIONER: I see.

PN248

MR McNALLY: If the transcript says it isn't we'll say it again. That's the award - Its vital that with the two schedules attached which reflects on the basis that...... The evidence that my friend raises actually re-argues the overtime issue so there's probably more evidence about it but they've raised again this non-working and overtime in their evidence.

PN249

THE COMMISSIONER: This document replaces what's attached to the application?

PN250

MR McNALLY: Yes.

PN251

THE COMMISSIONER: Yes, okay. The second thing is - that evidence was the subject of the most recent written decision. They were your people, Mr McNally, the other side challenged whole sections of it. I made rulings about it. They were never admitted were they?

PN252

MR McNALLY: No. Mr Keech will prepare an affidavit - an amended version of the evidence so that we can file that. There's another complicating factor in a complicated case. The evidence that has now recently been filed re-agitates the non-working of overtime so that it's still a live issue. It may be that we seek to use some of that evidence in the course of it but I don't know what the intention of the ..... is in calling witnesses again to say no one works overtime. There's a lot of evidence about it in those volumes.

PN253

THE COMMISSIONER: We'll adjourn these proceedings and resume at 9.30 on 13 May.

<ADJOURNED UNTIL WEDNESDAY, 13 APRIL 2005 [11.04AM]