AG2005/3571, Transcript of Proceedings [2005] AIRCTrans 1441 (4 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11995-1

COMMISSIONER SMITH

AG2005/3571

APPLICATION BY COMMANDER AUSTRALIA LIMITED
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/3571)

SYDNEY

2.37PM, WEDNESDAY, 22 JUNE 2005

PN1

MR S SMITH: I appear for Commander Australia Limited with me I have MR D DWYER of the company and MS R EVE of Australian Industry Group.

PN2

MS L DOUST: I appear, with your leave, if that is granted, for the CEPU.

PN3

THE COMMISSIONER: Thank you. Any objection to the application for leave. Mr Smith?

PN4

MR SMITH: Yes, we do object, Commissioner. Even though it has some complexity about it, it is a relatively straight forward application to certify an agreement and we don't believe there are special circumstances as referred to in section 42 of the Act.

PN5

THE COMMISSIONER: Ms Doust?

PN6

MR DOUST: Commissioner, as I understand it, this application proceeds before you without a signed statutory declaration from the relevant officer of the union. It involves, I think, some complex questions as to who is the appropriate party to a certified agreement and what is an organisation able to enter into a certified agreement under the Act. In addition to that, my friend has done me the courtesy of providing me with a folder of documents. He says that some evidence is going to be called, so it's a matter, I would submit, that the complexity requires the CEPU to be allowed to appear through leave.

PN7

THE COMMISSIONER: Mr Smith?

PN8

MR SMITH: Commissioner, we don't accept those arguments. We believe that Mr Bryant is here. He's an experienced advocate, well able to represent the interests of the CEPU and for that reason we would oppose - - -

PN9

THE COMMISSIONER: Thanks, Mr Smith. Yes, I'm satisfied that there are submissions where submissions of counsel may assist, so I'll grant leave at this stage and see where we go, Mr Smith.

PN10

MR SMITH: Yes, thank you Commissioner. This is an application for the certification of the Commander Metropolitan Services Support Agreement 2005 under section 170LJ of the Act. A statutory declaration has been filed setting out why the application meets all of the various requirements of the Act. Prior to the agreement being voted upon by the employees, a copy of the proposed agreement was circulated to the employees for their consideration. Following the required 14 day consideration period, the employees voted on the agreement by secret ballot and a valid majority of the employees endorsed the terms of the agreement.

PN11

Following the vote, Commissioner, the company prepared all of the necessary paper work and contacted the union to arrange the signing of the agreement but to date the union has refused to sign the document.

PN12

THE COMMISSIONER: Has the union agreed?

PN13

MR SMITH: It will be argued, Commissioner, that the union has agreed that the union is a party to the agreement that was made and we will present our arguments in support of that. The union's position, Commissioner, is surprising given that the communications division of the union participated in the negotiations and was heavily involved in the drafting of the document. Further, the agreement wasn't voted on by the employees until the union had confirmed that it had approved all of the content of the final document. After unsuccessfully attempting to have the union sign the agreement in the terms voted upon by the employees, the company decided to file the agreement with the registry on the last day of the required 21 day filing period and now seeks to have the agreement certified.

PN14

Now as we understand it, Commissioner, the CEPU supports the content of the agreement but wants the reference to the communication division removed in the parties' bound clause so that the clause refers to the broader CEPU. That change is not acceptable to the company. The agreement as filed is the version voted upon by the employees and the company is not prepared to agree to alter a substantive term in the agreement following the approval of the agreement by the employees. During the course of the negotiations both the communications division and the electrical divisions of the union sought to be involved in the negotiations.

PN15

The employee representatives on the consultative committee which negotiated the agreement on behalf of the employees made it clear that they wanted the communications division involved in the negotiations and also made it clear that they did not want the electrical division involved which represents as the company understands it, only a hand full of employees in one state. Now that was a very live and open issue during the negotiations, Commissioner. Therefore, it's not open, we would submit, to the company to simply change the terms of the agreement to remove the reference to the communications division and to give equal status under the terms of the agreement to the electrical division.

PN16

As we said, Commissioner, there are two key issues that we need to satisfy you of in order for you to certify the agreement. The first issue is that the agreement can be certified, notwithstanding that it refers to a division of the union in the parties' bound clause rather than the broader union; and secondly that the agreement can be certified under section 170LJ of the Act, notwithstanding the fact that the CEPU belatedly decided not to support the agreement. In support of our arguments on these two points, Commissioner, I'd like to tender a folder of materials that contains various cases and other matters.

EXHIBIT #S1 FOLDER OF MATERIALS

PN17

THE COMMISSIONER: Isn't there a third matter? Don't I have to be satisfied that an agreement was reached?

PN18

MR SMITH: Yes, Commissioner, but we believe in satisfying you of the other matters that that matter will be satisfied as well.

PN19

THE COMMISSIONER: An agreement was reached with the union - I say union because we'll deal with the other bits but don't I have to see some form of resolution of the committee of management or something that goes through the union's decision making body to satisfy myself that they've reached agreement with you?

PN20

MR SMITH: No, we don't believe so, Commissioner. The authorities that we will draw to your attention, we believe will satisfy you that the involvement of the union in the way that it was involved, up to the point of the vote, is sufficient for you to draw the conclusion that the agreement was made with the union and there is a long lines of cases of relevance to this matter and those cases haven't put that requirement on your decision on this matter.

PN21

THE COMMISSIONER: Wouldn't it be a question of fact? If the union has rules that require certain things to occur before it can be bound by an agreement, wouldn't it be a question of fact whether that's happened? Otherwise it's not authorised to enter into an agreement.

PN22

MR SMITH: There's other cases, Commissioner, particularly the Pampas case and others did go to that issue.

PN23

THE COMMISSIONER: It was predicated on the fact that there was an agreement wasn't it, authorised by the union in which they subsequently refused to sign and it really went around whether relief would be granted from your rules. Wasn't that the issue in those cases?

PN24

MR SMITH: We'd like to draw your attention to about 10 cases in fact and some to a greater extent than others. Certainly, in most of those cases the issue of the union's rules and it going through that formal process wasn't an issue for the Commission in deciding to certify these agreements. The involvement of the union in the negotiations through an official of the union and their involvement in the voting process and so on was sufficient. Because most unions, just thinking through the process, Commissioner, the unions typically, long after the vote is taken, when the paper work is sent over to the union, that's when it's formally put through the state councils or whatever the decision making body is.

PN25

The authorities show that that isn't the time that the agreement is made. The agreement is made prior to the vote. In very few circumstances would there be some formal approval process before that time. It would be less than one per cent of the case, I'm sure.

PN26

THE COMMISSIONER: I'm just thinking purely on a contractual basis. If an organiser says, yes, I'm in agreement with you, does that statement legally bind the union?

PN27

MR SMITH: Well the organiser is usually an elected official of that union and is entitled to negotiate on behalf of the union. We'd submit that unless there's any clear evidence to the contrary that the official involved, Mr Bretag, who has a very senior position in the union, has no authority to negotiate on its behalf.

PN28

THE COMMISSIONER: I can only tell you my concern is that under an LJ, you say you've got to have an agreement with the union and I'll need to be satisfied that you have an agreement with the union. The other matters which go to whether there's a statutory declaration, those sorts of matters, are just matter that arise out of the rules. They don't arise under the Act. The Act requires that an agreement be made and I have to be satisfied that there's actually an agreement with this union. We can clear it up, I suppose, we can ask Ms Doust whether or not her union has agreed with you and that might clear up the problem and we can go to the other aspects of whether there's a stat dec or the name of the union.

PN29

Ms Doust have you got instructions whether or not the union is in agreement?

PN30

MS DOUST: Commissioner, my instructions are that the union doesn't agree to the certification of the document in the form that it's in.

PN31

THE COMMISSIONER: I understand.

PN32

MS DOUST: My view of the document is that it probably can't be certified in this court - - -

PN33

THE COMMISSIONER: No, I understand that point. My point's one earlier, namely, has the union reached agreement - we'll come to the other aspect - whether it's the CEPU communications division or not. If it said, CEPU and not CEPU communications division, is the union in agreement with this employer?

PN34

MS DOUST: If it said that, yes.

PN35

THE COMMISSIONER: So the CEPU has reached an agreement with Commander.

PN36

MS DOUST: Yes. It really depends upon the terms, Commissioner, as to what is the content of that agreement.

PN37

THE COMMISSIONER: I understand - that clears up that point, thank you. We don't have to go down that path. You can take it from that admission that there is agreement with the organisation. The next question is how that's described.

PN38

MR SMITH: Yes, we agree entirely with that, Commissioner. So if I could go to that first issue that we argue that the agreement can be certified, notwithstanding that it refers to a division of the union in the party's bound clause rather than the broader union. Now we would submit, Commissioner, that it's beyond contention that agreements can be certified if they refer to a particular division. We have now heard briefly the CEPU's submission but if the union was to seek to argue that agreements are invalid if they refer to a particular division of a union that would be a very brave submission because it would be arguing that a large number of its own agreements are invalid.

PN39

In any event there was Full Bench authority for the view that certified agreements are not invalid if they refer to a particular division of a union in a party's bound clause. Commissioner, at tab 1 in the folder of materials there's a decision of the Full Bench Munro J, Drake SDP and Commissioner Raffaelli in a matter involving National Labour and Engineering Pty Limited. This is a decision in which the company that was bound by an agreement with the CFMEU sought to argue that it wasn't bound and the Full Bench went through in great detail the various requirements of the Act and the fact that this agreement met them.

PN40

If I could take you to paragraph 6 of that decision, here we can see that the Full Bench said that:

PN41

The primary source of grievance giving rise to the application before Commissioner Cargill related to the party's bound clause.

PN42

You can see in the party's bound clause, Commissioner, the party to this agreement was the CFMEU construction and general division and even the New South Wales branch of that division. If I could draw your attention Commissioner to paragraph 68 and 69 of the decision where the Full Bench talks about what is describes as the second jurisdictional issue that it was looking at:

PN43

The second jurisdictional requirement is concerned with the nature of the agreement in writing. It must be between parties eligible to make an agreement section 170LJ and be about matters pertaining to the relevant relationship.

PN44

Then in paragraph 69 second sentence the Full Bench states that:

PN45

The parties to the agreement are competent.

PN46

So we would say, Commissioner, that is a clear authority for the proposition that you can have a division of a union, in fact even a state branch of a division of a union as a party to the agreement. The decision of the Full Bench, we submit Commissioner, is binding upon the Commission in the current proceedings and therefore we submit that the Commission should determine that the party's bound clause in the Commander agreement represents no impediment to certification.

PN47

THE COMMISSIONER: Is there any other discussion in the decision other than that conclusion?

PN48

MR SMITH: No, Commissioner, but it seems very black and white. There are other references to the party's bound issue in the decision but it just seems so black and white on that point that it perhaps doesn't need any expansion.

PN49

THE COMMISSIONER: Yes, thank you.

PN50

MR SMITH: If I can turn then, Commissioner, to the second issue and that is that the agreement can be certified under section 170LJ of the Act, notwithstanding the fact that the CEPU belatedly decided not to support the agreement. There's now a relatively long line of authority which supports the proposition that agreements are made some time before the relevant employees vote on the agreement, with the vote either confirming or otherwise the terms of the agreement made. Now these decisions also confirm that agreements can be certified under 170LJ, notwithstanding the fact that a union or employer belatedly decides to withdraw support.

PN51

Before referring to those decisions, Commissioner, I'd like to call Mr Dwyer as a witness to enable his witness statement in tab 2 to be admitted as evidence.

<DESMOND LEONARD DWYER, SWORN [2.55PM]
<EXAMINATION-IN-CHIEF BY MR SMITH

PN52

MR SMITH: Thank you, Mr Dwyer, please state your full name and position for the record?---Derrick Dwyer and my position is national human resources manager for Commander Australia.

PN53

In the folder of materials there's a witness statement at tab 2. Is that your statement?---It is my statement.

PN54

Do you wish to make any changes to that statement?---No, I don't wish to make any changes.

PN55

Is it a true and correct statement?---It is.

PN56

No further questions, Commissioner.

PN57

THE COMMISSIONER: I might mark that separately. It would be appreciated if there was a witness statement in there.

EXHIBIT #S2 WITNESS STATEMENT OF MR DESMOND DWYER

PN58

MS DOUST: Commissioner, I've just seen the statement a few minutes ago and I - - -

PN59

THE COMMISSIONER: Do you want a 10 minute adjournment?

PN60

MS DOUST: The only difficulty that I have is that I don't believe that I'm going to be in a position to cross-examine this witness today in relation to the affidavit. I might say that I apprehend that there's likely to be a range of objections because this witness purports to give evidence about a whole range of matters concerning the position he took and the position the union took and he does it in a hearsay fashion without reciting in direct speech anything put by the CEPU. On that basis, it's objectionable. It's obviously going to take some time to be in a position to cross-examine him.

PN61

THE COMMISSIONER: Why don't you take 10 minutes or 15 and draw to my attention those aspects of the statement that you consider objectionable at this stage and we'll see where that takes us.

**** DESMOND LEONARD DWYER XN MR SMITH
PN62

MS DOUST: I'd be happy to do so, Commissioner, thank you.

PN63

THE COMMISSIONER: I'll adjourn for 15 minutes.

<SHORT ADJOURNMENT [2.58PM]
<RESUMED [3.39PM]

PN64

MS DOUST: Thank you for that time Commissioner. Commissioner, while we adjourned it appeared to be - I made some enquiries following the questions that you asked before the adjournment Commissioner, about whether or not the agreement had actually been properly endorsed in accordance with the union's rules in the form of some resolution. The result of those enquiries was that it appears at this stage that there was never a division on executive decision made endorsing the agreement. That's what I'm informed by Mr Bretag, who's the person that we suspect would know had there been one.

PN65

I think there were two meetings of the divisional executive this year and there hasn't been - as we understand it - as best I can ascertain in a brief telephone call - there hasn't been a resolution passed by that body in that time and perhaps for good reason when one considers the background to the matter that there's been some other event which form the context. Now as to where this leads me in relation to this witness, Commissioner, I must say that on my reading of the statement of Mr Dwyer, much of it is objectionable in form and contains opinions and the like that there may be ultimately very little that I would need to say to this witness but I wouldn't like to give away those rights today entirely before I've had a chance to get some more detailed instructions from Mr Bretag about the matters.

PN66

THE COMMISSIONER: On what, whether you say your client's in agreement with Commander.

PN67

MS DOUST: Yes. I know that does tend to contradict the position that I put to you Commissioner prior to the adjournment and I apologise if you've been misled.

PN68

THE COMMISSIONER: That's all right. So, what are you putting to me now?

**** DESMOND LEONARD DWYER XN MR SMITH
PN69

MS DOUST: What I'm saying is I'm not in a position to cross-examine this witness to finality today unfortunately.

PN70

THE COMMISSIONER: Yes. Are you in a position to indicate what's objectionable in your view, in the witness statement?

PN71

MS DOUST: I'm happy to go through that and I hope I won't tire you Commissioner. I tend to take an old school approach to these matters but as to paragraph 5, I object on the basis of relevance.

PN72

THE COMMISSIONER: Just a moment - yes. I'm not ruling yet, I'll hear them all.

PN73

MS DOUST: That's all I wish to say on that objection, we object - - -

PN74

THE COMMISSIONER: On the basis of relevance - paragraph 5, yes.

PN75

MS DOUST: Paragraph 6, the first line of that paragraph is simply this witness's opinion and can be of no assistance to the Commission in determining the matters that it has to consider in this matter. Paragraph 6, the final sentence - - -

PN76

THE COMMISSIONER: Yes, hang on - the first sentence - - -

PN77

MS DOUST: Sorry, first line:

PN78

The in fighting that was obviously going on within the CEPU -

PN79

THE COMMISSIONER: First line, yes, the in fighting, yes.

PN80

MS DOUST: After that obviously, this witness can speak for what Commander decided. The final line of paragraph 6 about the consultative committee accepting a course of action at that time - this witness is not in a position to speak for a body of which, I understand he's not a member. That's the employee group.

PN81

THE COMMISSIONER: Yes. It depends what the evidence is whether what he was told rather than what took place but I understand.

**** DESMOND LEONARD DWYER XN MR SMITH
PN82

MS DOUST: This witness purports in that sentence to yes, place himself in the mind of others. Second part of paragraph 7, Commissioner:

PN83

The employee representatives on the committee -

PN84

et cetera, down to, Victoria. There's probably a number of basis on which that might be objectionable. It's not in the appropriate form if it's giving evidence of what's been said by the employee representatives and it's also questionable as to relevance.

PN85

THE COMMISSIONER: The relevance might arise if Mr Smith's right on the question of who can be bound, doesn't it?

PN86

MS DOUST: I must say, Commissioner, I hadn't allowed for that being a reasonable possibility and I probably shouldn't have been so presumptuous.

PN87

THE COMMISSIONER: That's all right.

PN88

MS DOUST: Paragraph 9, the part:

PN89

And a final position was arrived at on the proposed EBA

PN90

We say, is deficient in form. It's clearly hear say, it's a conclusion as to an ultimate matter as it were. It appears that this witness is trying to give evidence as to the fact that an agreement was reached which is going to be a final matter for you to determine Commissioner. He can give evidence obviously as to what was written by whom on these issues but to say a final position was arrived at, we say is improper and we object. Similarly, at paragraph 12 the first sentence should not be permitted to go into evidence in that form.

PN91

THE COMMISSIONER: Why?

PN92

MS DOUST: It's an objectionable form of evidence. This witness might give some evidence as to a conversation if he wishes to do it should be in direct speech. He could annex perhaps, a record of a communication and so on but in that form it's not appropriate.

PN93

THE COMMISSIONER: Yes.

**** DESMOND LEONARD DWYER XN MR SMITH
PN94

MS DOUST: Similarly, Commissioner, and depending upon how you would be minded to accept the evidence, the following part of that paragraph, paragraph 12 refers to the communications division having communicated to Commander its preparedness to enter into the proposed agreement and so on and so forth. That similar wording is contained in the third paragraph of the email which is annexed.

PN95

THE COMMISSIONER: Yes, it's a boot strap's argument, isn't it?

PN96

MS DOUST: Yes, it shouldn't go in as evidence of proof - - -

PN97

THE COMMISSIONER: Of a fact that's not proven.

PN98

MS DOUST: So those are the objections. I honestly, I don't anticipate, Commissioner, having a great deal to put to this witness because I apprehend that out point is a somewhat different angle but given that something has arisen which I have not apprehended before I came here today, Commissioner, I'm reluctant to give away my rights.

PN99

THE COMMISSIONER: I understand. It's pretty important. I've got to be satisfied I've got an agreement. Mr Smith, what do you say about those objections?

PN100

MR SMITH: Commissioner, I think this is the very reason why the Workplace Relations Act provides limited rights of appearance for solicitors. Because obviously this is a very technical series of arguments that's being run about the deficiencies in Mr Dwyer's witness statement and as we are all aware the Commission and the Workplace Relations Act is structured in such a way that it's not supposed to be overly technical in its jurisdiction.

PN101

THE COMMISSIONER: Where have you been for the last five years?

PN102

MR SMITH: That may be so, Commissioner, but the Act hasn't changed in the last five years.

PN103

THE COMMISSIONER: No, but those that visit me have.

**** DESMOND LEONARD DWYER XN MR SMITH
PN104

MR SMITH: Commissioner, I think this issue of was an agreement made. It's convenient for my colleague here to change her submission 180 degrees on that point. But Mr Bretag in the union was well aware that this hearing was on. It's very easy to come along and say, we need more time, we haven't seen this, we haven't seen that. In fact Mr Dwyer left a message for Mr Bretag who returned and left a message on his mobile phone advising that he wouldn't be here today and also advising as I understand it that the position of the union was exactly as Ms Doust pointed it out at the start. The union agrees with the document but the only issue that they object to is the reference to the communication division within the parties bound.

PN105

That is a different issue to the agreement as such, this is who are the parties to the agreement as opposed to what is the agreement? So this is just a delaying tactic as we'd see it Commissioner, and the same tactic that the other union representatives use very regularly whenever there's an important matter that needs to be progressed.

PN106

THE COMMISSIONER: But don't I have to be satisfied there is an agreement?

PN107

MR SMITH: I think you can be satisfied that there is an agreement.

PN108

THE COMMISSIONER: You've got one party to your agreement telling me that there may not be an agreement.

PN109

MR SMITH: We have evidence, Commissioner, that I'm happy to take Mr Dwyer through in more detail the background to the issues but there was involvement by the CEPU at the most senior levels in the negotiations. There was a copy of the agreement sent to Mr Bretag. He sought amendments. There was a process of getting the union's agreement at that very senior level. That document then went to the employees. A copy of the email that went out with the document went to the union. All along the way, the union has been involved in this and it's laughable, we believe, Commissioner, that this idea that every enterprise agreement's got to go to some body that meets every several months.

PN110

That would just mean that no enterprise agreements would get up and I'd question the union about how many of its agreements went to that body before the vote was taken because - - -

**** DESMOND LEONARD DWYER XN MR SMITH
PN111

THE COMMISSIONER: That might be. There was also a case called Electrolux that changed the landscape in relation to certification of agreements. That's the first thing I look at. Was there an agreement? Normally the statutory declaration confirms, hopefully, correctly, that one party has acted in accordance with its rules to say that it can be legally bound. It is in agreement it can be legally bound.

PN112

MR SMITH: But Commissioner, the submission as we hear it isn't being put that the union doesn't agree with the document. It's being put that the union may not agree with the document but they're not sure today whether they do or they don't.

PN113

THE COMMISSIONER: No, I asked specifically whether it was in agreement. Now the question there arises as to whether or not, how you cite the body that's in agreement. Whether or not it was in agreement and that's what's now been thrown into doubt.

PN114

MR SMITH: Commissioner, it's been perhaps thrown into doubt in terms that the fact that the union is now not able to clarify whether they've agreed on not but I would think that the employees of Commander are going to be very interested to know that their union is now saying that they don't agree with the document and I could not imagine Mr Bretag putting that submission here that he didn't and doesn't agree with that document. Commissioner - - -

PN115

THE COMMISSIONER: Whether he does or he doesn't, is irrelevant isn't it in terms of whether the union agrees?

PN116

MR SMITH: I think his position is assistant national secretary of that union so it has no authority - - -

PN117

THE COMMISSIONER: If the union delegate to give him the authority to reach agreement without any further action then let's see him and we'll hear the evidence.

PN118

MR SMITH: That's the point, Commissioner. He is well aware that this hearing is on today. Two people have come along to represent the union that had no involvement in the negotiations. That was a choice that the union made in this matter. It's very convenient to come along and say, we haven't got the information. We don't know. It may be this. It may be that. But the company has an agreement that it believes is valid in the absence of any evidence to the contrary, we believe that Mr Dwyer's evidence should be accepted and we'd be happy for him to - - -

**** DESMOND LEONARD DWYER XN MR SMITH
PN119

THE COMMISSIONER: But his evidence doesn't go to the unions. His evidence goes to what somebody told him. It doesn't go to whether or not the union is in agreement in accordance with its own rules.

PN120

MR SMITH: Given that the understanding of the company, Commissioner, was that was not in doubt. Our clear understanding, based on the discussions that we had with the union was that the only issue of contention was the wording of the parties' bound clause. Mr Dwyer is able to give evidence right now about the discussions that he had with Mr Bretag and the process that the company went through and that evidence as I was saying, Commissioner, should be accepted in the absence of anything to the contrary. Particularly, given that the two representatives of the bar table had no involvement in the negotiations and the union has specifically decided not to send anyone along today that did have involvement.

PN121

So, it's just as we say, Commissioner - - -

PN122

THE COMMISSIONER: But the submission's been put that there's doubt. Am I to ignore that?

PN123

MR SMITH: I think you should, Commissioner, unless there's any evidence to the contrary because what you have, today and you can have a lot more evidence, if you wish, Commissioner, is evidence that shows that that is not the case and all the cases that I'd like to refer to will be quite clear from the train of events, Commissioner, that this issue of the union having to endorse it at its divisional level or in accordance with its rules, that could not possibly have happened with most or all of the decisions. It's not the way, as we all know, that enterprise agreements are negotiated.

PN124

THE COMMISSIONER: I don't know. I act on statutory declarations that say the parties have reached agreement. I don't seek to go behind those. I assume that when people sign statutory declarations they sign them truthfully and honestly and in accordance with their rules.

PN125

MR SMITH: I think that's a valid thing to assume, Commissioner. The submission is not being put by the union today, that it didn't have the authority to agree to this document. It's being put that it may not have the authority. It's not sure. This hearing has been scheduled, Commissioner, there's an obligation on parties to come along and be prepared for it.

**** DESMOND LEONARD DWYER XN MR SMITH
PN126

THE COMMISSIONER: Yes. Is there anything else you want to say about the objections other than the generic Shakespeare invocation of killing all the lawyers?

PN127

MR SMITH: We employ a lot of lawyers ourself, Commissioner, so I've no objection to lawyers.

PN128

THE COMMISSIONER: I'm sure you don't want to take it too far.

PN129

MR SMITH: This is a witness statement that goes to relevant issues about issues that Mr Dwyer was personally involved in to the extent that he is referring to discussions that he had with others and particularly with Mr Bretag and others within the union. It just comes back to that central point that if those points were to be challenged then the union should have a witness of its own here today to establish that agreement wasn't reached. In fact, the position put at the start, as I've said, is exactly the position that was communicated to the company about what the position we'd be putting today. It's very convenient to suddenly change position 180 degrees, half way through the hearing.

PN130

The evidence of Mr Dwyer goes almost entirely to this issue of was an agreement reached. The other issues that we wish to deal with like the issue of whether you can have an agreement binding on a division of the union is an issue that doesn't require this evidence. The issue of can an agreement be certified if it's not signed? This witness statement isn't necessary for us to establish those points.

PN131

THE COMMISSIONER: No.

PN132

MR SMITH: It goes entirely to that issue, Commissioner, that you raised at the start of was an agreement made with the union and we believe that it was and on that particular point - - -

PN133

THE COMMISSIONER: I really only think there's two questions. One is, does Command have an agreement with the union? If it does, then can the communications division be properly identified as an organisation in accordance with the Act? Those are the only two questions. The other matters as to whether or not the stat dec's signed, the agreement's signed. All of those matters are matters which help satisfy the Commission, that things that have gone before are correct. I can grant relief from the rules and say, I don't even want a stat dec much less being signed, but I've got to be satisfied that the ingredients contained in the stat dec are really an aid, if you like, to the Commission's certification process have been fulfilled, or the Act has been fulfilled.

**** DESMOND LEONARD DWYER XN MR SMITH
PN134

MR SMITH: Yes. The related issue, Commissioner, is not, what is the union's agreement - what is the union's position at 4.00 o'clock today versus what it was at 3.30. The issue of what is the union's position in terms of the agreement, is an issue of, was the union a party to that agreement when it was made which on all of these authorities show that the time that the agreement was made was prior to the vote of the employees on the terms of the agreement.

PN135

THE COMMISSIONER: That's if an agreement was reached.

PN136

MR SMITH: If an agreement was reached.

PN137

THE COMMISSIONER: Yes.

PN138

MR SMITH: But the position of the union now, we'd submit, Commissioner, is irrelevant as to whether they now agree with the document or not, it's the issue of did they agree with it on question of fact on that date.

PN139

THE COMMISSIONER: What's relevant, is whether or not agreement was reached. Whether it was prior to the vote or after the vote, whether or not as a matter of proper principles, an agreement exists. If an agreement exists then the other matters - and that's what turns on most of the other decisions you're referring to - the assumption is, an agreement existed and therefore, what flowed from then was machinery matters.

PN140

MR SMITH: Yes. So the nub of the issue, Commissioner, is in the lead up to the vote, did the union agree with the document and we believe there is conclusive evidence through the discussions that we had with Mr Bretag, the documentation that was sent to him. The fact that he finally confirmed the agreement was acceptable, there's conclusive evidence that Mr Dwyer can expand upon today and in the absence of anything to the contrary, we would submit that that is evidence that demonstrates that point. Because there is nothing to the contrary other than a vague telephone call that the union needs more time and it may be different from what was communicated.

PN141

THE COMMISSIONER: No. For the purposes of discussion, let's assume that everything that Mr Dwyer was told, he believed in good faith that he had an agreement. That might not change the fact.

PN142

MR SMITH: No, but the facts that Mr Dwyer can report on - the actual documentation, the discussions that he had - - -

**** DESMOND LEONARD DWYER XN MR SMITH
PN143

THE COMMISSIONER: This union in particular has done that on a number of occasions with LK agreements. It has been actively involved in negotiations, in drafting with LK agreements but hasn't been able, as a union to be party to such agreement out right and has on occasion, not all the time, but has on occasion, asked for an order to be bound. The involvement of the officials isn't necessarily evidence of the registered organisation being in agreement.

PN144

MR SMITH: Not in all circumstances, Commissioner, but in this particular set of circumstances we believe that the evidence is so strong on that point that it is conclusive and in the absence of any other evidence other than tactics to try to delay your decision in this matter and vague references to telephone calls and so on, Mr Dwyer's evidence should stand.

PN145

THE COMMISSIONER: Let's just take one example. Most of the objections, with great respect to Ms Doust, and the form of them, I'm not prepared to uphold because we do take a broader view. It's the substance, it's the substantive point. But a substantive point in relation to the email, is that it says:

PN146

Had committed its preparedness to enter into the proposed agreement.

PN147

That email doesn't prove that point, does it? It just says that that is the genuinely held view of the originator of the email. It doesn't prove the fact.

PN148

MR SMITH: No, but coupled, Commissioner, with the fact that there had been direct involvement by Mr Bretag, in the negotiations. There had been a series of discussions where he, on behalf of his union sought changes to the agreement which were made. Mr Bretag received a copy of this email, a copy of the agreement and he confirmed it, when he received a copy of the agreement that the agreement was now acceptable to the CEPU. It was a whole series of things that draws to the, we submit, obvious conclusion that the union agreed with the document at the relevant time and all the authorities say the relevant time for the making of an agreement is prior to employees voting on it.

PN149

THE COMMISSIONER: Yes. Given the objections, the only deletion that I'm going to make from the agreement is the first sentence of paragraph 6.

PN150

MS DOUST: Sorry, the statement, Commissioner.

**** DESMOND LEONARD DWYER XN MR SMITH
PN151

THE COMMISSIONER: Up to the comma.

PN152

MS DOUST: Commissioner, you said, the only deletion you'll make from the agreement.

PN153

THE COMMISSIONER: Yes, I'm sorry, the first - from the statement - thank you, Ms Doust, from the statement, yes, up to the comma in paragraph 6. There's some substance in relation to the last sentence if Mr Dwyer wasn't there then it probably matters. I'll permit you to ask him the question, how he comes to that view? But the other matters as to form, I'm not prepared to exclude it as to that because some of those issues can be dealt with in cross-examination. So, arising out of that, is there any questions you wanted to ask of Mr Dwyer in examination-in-chief before we deal with the application for adjournment?

PN154

MR SMITH: Yes, Commissioner. Mr Dwyer, in the lead up to the vote on the terms of the agreement, could you describe the involvement that Mr Bretag had in that process or other officials from the communication division of the union?
---Yes, I can. Following the final meeting that we had with the consultant, the committee and he was the communications division that participated in which we agreed on a position, a final position. Mr Bretag and I agreed that I would go away and draft a document which I would send to him, incorporating the proposed position we had reached. He was going on annual leave and he gave me his personal email address so that I could continue to communicate with him whilst he was on leave. We then went through a process perhaps of sending and resending a draft document to each other, maybe three or four times until we reached a point where we agreed it was a final draft and a final document.

PN155

When you say you agreed it was a final draft, did he agree that the document could go to the employees?---Yes.

PN156

MS DOUST: I object. The witness can be asked what he said but - - -

PN157

THE COMMISSIONER: Yes, I understand.

PN158

THE WITNESS: I can expand on what was agreed.

**** DESMOND LEONARD DWYER XN MR SMITH
PN159

MR SMITH: Yes, okay?---So we reached - between us we reached a point that we had between us created a document that reflected the discussions and the negotiations that had occurred. I then went through a process which was a normal process that I had gone through with agreements with this union previously and that is that I prepared the communications that would go out to the employees in support of the document and I sought his reassurance as I have on all occasions that I conclude in that communication that the union had indicated their preparedness to agree with the document subject to it being accepted by the employees and he confirmed that I could do that and as in all my correspondence to employees the union is always copy of what goes out and it was on that occasion. So it went out with that statement in it that they had indicated their preparedness to enter into an agreement subject to it being accepted in the ballot and nothing changed from that point until four days before the document was due to be lodged for certification.

PN160

What happened at that point?---At that point again, as per the normal practice where I prepared the statutory declarations and arranged for them to go to the union to be signed along with my signed statutory declaration when I contacted him to say that I was ready to send the documents to him. He said, "We may have a problem", and that problem related to his ability to sign the document because of internal matters within the - - -

PN161

Did he explain what those internal mattes were?---Yes, he explained - his indication was that he could only sign it if the words, the communication division, was removed from the parties' bound.

PN162

Were there any other changes sought to the agreement?---None whatsoever. He - on the first occasion this issue arose, which as I said, was perhaps four to five days prior to the day it was due to the lodged, his indication was that he believed he had a problem but he would get back to me to confirm a final position. I pursued him in the days leading up to the 21st day and it was only on the 21st day that he confirmed to me that he wouldn't sign it. I then lodged the document without this.

**** DESMOND LEONARD DWYER XN MR SMITH
PN163

Have you had any communication with Mr Bretag about this hearing?---None other than what you've referred to before and that is that I left him a message yesterday to ask if he was attending and he returned a message to me to suggest that Mr Bryant would be attending and that the position was the same as he had previously indicated to me that the document - he couldn't - that the communication couldn't sign the document unless they were removed - the name was removed from the parties bound in the document.

PN164

Can you leave the issue of the parties bound to one side, which is a different issue to the issue to the content of the agreement. At any stage up until this hearing has the union indicated that they want any changes made to that document?---Never anything other than that point.

PN165

No further questions, Commissioner.

PN166

THE COMMISSIONER: You're not in a position tonight to cross-examine Ms Doust?

PN167

MS DOUST: No, Commissioner, I don't expect there is likely to be any. I think the issue that I've raised with you is one which obviously isn't going to be within this witness's knowledge. Just on those issues, Commissioner, and I apologise if this is not the appropriate time. My friend's made a great deal about the fact that I initially put something to you and then changed my position. There's a couple of issues that I think are probably important to put on the record. One I've probably got an ethical obligation to make sure of the factual position that we put before you, Commissioner, and we'd regard that as a serious one.

PN168

That extends to correcting any position that's been put incorrectly. Two, Mr Smith speculated about what members of the union might make of events today and I'm sure that members would be reassured to know that the union was properly investigating any matter that might undermine the validity of any certification of any agreement.

PN169

THE COMMISSIONER: Yes, no point in having it certified if it can't enforce their rights.

PN170

MS DOUST: If it didn't meet the jurisdictional prerequisites it would be obviously open to attack later on in the piece from either of the parties. Those are the only points I wish to make Commissioner. As to where we go now, I don't expect to have a great deal from the witness and I'm happy for him to be excused if the Commission notes that - - -

**** DESMOND LEONARD DWYER XN MR SMITH
PN171

THE COMMISSIONER: You may required him to be recalled.

PN172

MS DOUST: If the Commission's minded to adjourn we may make application to recall him to put one or two matters.

PN173

THE COMMISSIONER: Sure, Mr Dwyer, you're excused for the present time.

<THE WITNESS WITHDREW [4.16PM]

PN174

THE COMMISSIONER: I was going to adjourn at 4.30 but I think it's probably the time can be taken up, Mr Smith, by you going to the second matter, namely the capacity to name a division. I'm sorry, you've already dealt with that haven't you and you rely solely on the decision of the Full Bench. Is there anything else that you wanted to put in relation to that?

PN175

MR SMITH: Yes, Commissioner. We rely on hundreds, perhaps thousands of agreements that have been certified, including agreements with the CEPU even with the largest companies in the telecommunications industry.

PN176

THE COMMISSIONER: If only that made it law.

PN177

MR SMITH: As we said before, it would be an extremely brave submission to argue that agreements are invalid if they refer to a division because virtually all of the construction agreements with the CFMEU did it and that agreement that was the subject of that Full Bench matter and numerous other agreements, in fact, Commissioner, many decisions of your own, this company's previous enterprise agreements.

PN178

THE COMMISSIONER: I've certified with divisions - I'm not unaware of the problem. But again, the volume of numbers doesn't necessarily - I mean in the case of Electrolux - how many were certified? It required the parliament of Australia to pass legislation.

PN179

MR SMITH: Yes, Commissioner, but the Full Bench decision really, is the clarity needed but the - - -

PN180

THE COMMISSIONER: Is there anything else other than that and the enormous weight of precedent that you rely on?

PN181

MR SMITH: No, Commissioner, those are the points.

PN182

THE COMMISSIONER: Ms Doust, is there anything in particular, other than the two issues I've raised, firstly, where there was an agreement and secondly, the issue of who can be party. Is there anything else from your instructions that you need to raise. You're not troubled by the fact that the statutory declaration's not signed? That only evidence of you saying, you can't agree to the communications division being a party.

PN183

MS DOUST: Yes, we certainly don't say that the issue of whether or not there is a signature on the stat dec is the conclusive issue.

PN184

THE COMMISSIONER: Itself.

PN185

MS DOUST: No, we agree with respect with the way you put the issues, Commissioner, that might shortcut what I was proposing to say. What I was proposing to ask, Commissioner, is that if you were minded to indicate a view this afternoon on the secondary point, that may well assist the parties in determining where they go from here.

PN186

THE COMMISSIONER: About the construction division, whether it can be party.

PN187

MS DOUST: We're not the construction division.

PN188

THE COMMISSIONER: I'm sorry, the communications division, you want me to indicate a view.

PN189

MS DOUST: If that's convenient, Commissioner. If you're in a position - - -

PN190

THE COMMISSIONER: I'd like to hear any submissions you want to put before I indicate a view.

PN191

MS DOUST: I was about to address you, Commissioner, on those issues.

PN192

THE COMMISSIONER: Yes.

PN193

MS DOUST: As to the authority that my friend has handed you of national labour and engineering, what we would say is that clearly the Full Bench here hasn't considered the issue precisely as it's been put to you in terms as to whether or not a division is competent. We respectfully adopt what you said, Commissioner, about the fact that the practice of a number of parties doesn't elevate something to the status of validity. I'd be very pleased if the next time something's being challenged in the federal court I could subpoena Mr Smith to give some evidence about the hundreds and thousands of agreements and I'd be happy if that would get me over the line on the issues of statutory interpretation under the Act but I'm fearful it would not, Commissioner.

PN194

THE COMMISSIONER: There are lots of agreements that aren't certified in the Commission. If we simply took the agreement of the parties as prima facie evidence we wouldn't have to do much - maybe that will change.

PN195

MS DOUST: Yes, Commissioner. In our submission the only proper party to a certified agreement is a registered organisation and not a division thereto. That makes sense because a division doesn't have a legal identity in and of itself and the submission that I make today is something that assists Mr Smith just as much as it assists the CEPU. Of course either of the parties can only get relief against an entity that exists and is recognised at law in relation to the agreement. I can't remember the name of the case but Marshall J in the Federal Court in Victoria in about 1997 considered some orders issued under section 127 - I think it related to one of the health services.

PN196

In the section 127 orders I think a division of the Health Services Union had been identified as the proper respondent and his Honour there found that the division could not be a proper respondent to orders under section 127 for that reason that it wasn't a body recognised at law.

PN197

THE COMMISSIONER: What do you say about this? Awards of the Commission in disputes often have names of bodies that might not, for example, be the employer. Sometimes they're referred to as trading names - inadvertently referred to. My recollection is that there is Federal Court authority, Ryan J - I'm dragging deeply from the depths now - in a matter involving Bellhop. I think it was a clothing trades matter. There's also decisions of Gray J that says as long as you can identify in one way or the other, who the legal entity is, the description of the legal entity may not be as important as being able to identify who it is.

PN198

That's poorly worded but you see the point that I'm getting to. Now, I wonder whether there's any authority that can be drawn from those line of decisions into matters using the corporations power.

PN199

MS DOUST: It's an interesting question you raise, Commissioner. Our principal submission is, the proper party is the organisation. There's another questions which arises here and which flows I think from the employer's insistence on the particular form of description in that one might ask, well, what flows from what the employer is putting on view they - - -

PN200

THE COMMISSIONER: I can tell you what flows from it but that may not be the point.

PN201

MS DOUST: Our submission is, is what flows is invalidity. But if the employer thinks that by having - - -

PN202

THE COMMISSIONER: I'm sorry. I misunderstood where were you were going.

PN203

MS DOUST: Yes. This employer clearly has a particular view as to who they may wish to deal with. That's clear from Mr Dwyer's statement.

PN204

THE COMMISSIONER: That might be accommodated in the body of the agreement. There might be nothing that inhibits parties in the body of agreement saying, for example, that our contact with the employees shall be through the communications division. For example, that wouldn't create an invalidity - - -

PN205

MS DOUST: Yes.

PN206

THE COMMISSIONER: - - - because you're not seeking then - the registered organisation is being bound and it's being bound to a course of action.

PN207

MS DOUST: Yes, if it describes the motive of communicational vote depending upon how far it went. Some people might say, there's an Electrolux issue there. But our primary submission is, you can't bind a division alone - the proper party to a new certified agreement - - -

PN208

THE COMMISSIONER: Indicated that it will be bound

PN209

MS DOUST: Yes. It's a registered organisation, not a division thereto.

PN210

THE COMMISSIONER: I thought we'd left Moore v Doyle a long time ago.

PN211

MS DOUST: We rely upon, of course, the express provisions of the - - -

PN212

THE COMMISSIONER: Statute.

PN213

MS DOUST: Yes. Of the legislation which talk about reaching agreements with organisations. Obviously, an organisation can only act in accordance with its rules. I think the saying a stream can't rise higher than the source, is pertinent.

PN214

THE COMMISSIONER: Mr Smith, what's your attitude to a, if you like, an interim decision on that point. Namely, whether or not the parties bound clause can cite a division rather than a registered body.

PN215

MR SMITH: Commissioner, we don't object to that course of action but I would like to make a few further comments based on the issues that you've just raised before doing that.

PN216

THE COMMISSIONER: Sure, I will hear everybody to exhaustion - my exhaustion.

PN217

MR SMITH: The points that you've raised are very valid ones we believe because not only are there those older authorities but this is an issue that has come up from time to time when unions have gone on huge roping in exercises. So typically a lot of the organisations served have been incorrectly identified. As you've pointed out, there are trading name issues. There are a whole range of issues and there is a line of authorities that support the view exactly that you've expressed. That as long as the intention is there, then that is the valid point, it shouldn't require that the organisation be described in exactly the right precise terms.

PN218

THE COMMISSIONER: The difficulty is, that's not your intention. Your intention is the communications division, isn't it? It's not the CEPU. That's what in part distinguishes that.

PN219

MR SMITH: But there are two issues. There's the issue of who is the party to the agreement in a legally correct sense and then there is an issue of, can the agreement refer to the communication division. Because that could be a different point, couldn't it? It could just be exactly the point that you've identified and another - - -

PN220

THE COMMISSIONER: Is it a misdescription of the party, is the point that goes back to the earlier authorities, whereas you say, as I understand your position, this is not a misdescription. This is the party and this is the party that can be bound.

PN221

MR SMITH: What we're saying, Commissioner, is, we would like the agreement certified in the form that it was put to the employees and the wording that is there, the wording that Mr Bretag agreed to. The issue of who is the formal party to this document is a different issue. It's an important issue but we don't believe that you need to necessarily determine that issue. What you need to do, Commissioner, we believe and we would submit is - - -

PN222

THE COMMISSIONER: Who do you say the formal party is, apart from Commander? Who on the other side is the formal party?

PN223

MR SMITH: We would put the primary position that the CEPU communication division is the party in a formal sense. But if we're not right on that then we will put the view that even if you find that the CEPU must be the formal party because it is the registered organisation, we put the view, based on the other line of authorities and on the Full Bench decision, the sheer weight of numbers, that notwithstanding the fact that you may decide that the CEPU in its registered form is the party that the agreement can still be certified in the way that we've described it.

PN224

Another issue that we believe is relevant, is given the union amalgamation process and even amalgamations on the employers' side in some respects, there are a lot of awards that refer to former entities of unions. If the view is put that the CWU for example - - -

PN225

THE COMMISSIONER: But that might relate to the dispute finding using the
C and A power. You can't allow a dispute finding by amalgamation.

PN226

MR SMITH: Yes, but it also goes to this issue doesn't it, Commissioner, that the way that you describe a party to an industrial instrument shouldn't be constructed in a very sense because there would be enormous implications. I still restate that submission. The union is and has now said, that it is arguing that if an agreement describes a division it's invalid. That just amazes me that the union would put such a solution. There's numerous agreements that refer to divisions.

PN227

THE COMMISSIONER: The issue might be - you see what I'm being pressed to do is to say that the communications division is the body that under the Act is the party. If the communications division is simply a misdescription of who the party is, which is your secondary argument and your secondary argument is well, allow the misdescription to continue because if that happens then there's great comfort about the agreement because that's what people voted on.

PN228

MR SMITH: Yes and given that it was a live issue, this issue of how that was worded and the background that we've described, Commissioner, with both divisions endeavouring to be involved in the negotiations. The history to the organisation is an interesting one too because it was formerly part of Telstra and so the communication workers division is the union that's had the long standing support of the employees in this area.

PN229

THE COMMISSIONER: I hear what you're say. It would be interesting if I got an application to remove ambiguity and uncertainty wouldn't it, in case there was action being taken against somebody and to remove the ambiguity and uncertainty in the view of the union, properly described the respondent.

PN230

MR SMITH: Commissioner, what we're asking you to do and the way that we constructed our questions in our submission was for you to find that the agreement can be certified and must be certified in the way that it has been described. So that is a different question. We're not asking you to answer the other question in effect Commissioner, we're just asking you to find that there is no impediment to certification due to the way that the parties' down clause is drafted.

PN231

THE COMMISSIONER: Do you want me to answer that question in an interim sense?

PN232

MR SMITH: Yes, we would like that, Commissioner.

PN233

THE COMMISSIONER: Not now - I can't answer it now. I'd like to reflect upon the Full Bench decision that you say is authority for the proposition that you can describe a party as a division.

PN234

MR SMITH: What we would prefer that you do though, Commissioner, with this matter is that you hear our submissions, which will only take another 10 minutes to make on the other point and then - - -

PN235

THE COMMISSIONER: What's the other point?

PN236

MR SMITH: The other point is the issue of what is the relevant time that an agreement is made and we argue that it is before the vote. So that is important because the union's position now, we say, is irrelevant. We say the relevant time is before the vote was taken and hence the questions I asked Mr Dwyer about what happened at that time.

PN237

THE COMMISSIONER: But it doesn't arise does it? It's not in contention, those issues.

PN238

MR SMITH: If it's not in contention then it doesn't arise.

PN239

THE COMMISSIONER: The only thing that's in contention is the more basic question that I'll have to get some further information on is, was there an agreement? The conduct of the union officials might be indicative of the agreement but it's not proof of it, is it?

PN240

MR SMITH: We believe there is strong evidence in support of the view that there was an agreement and there's no contrary evidence at all. We don't see a need, Commissioner, for a preliminary decision because we believe that apart from the other - - -

PN241

THE COMMISSIONER: The preliminary decision I was only talking about was that second point as to whether or not an agreement can bind the communications division.

PN242

MR SMITH: Yes, Commissioner, but we don't believe there's a need for a preliminary decision because we have nothing more to put to you other than that other argument that appears to be now uncontested.

PN243

THE COMMISSIONER: If I say, it can't be, what happens?

PN244

MR SMITH: If it can't be then what you will need to do is to say then Commissioner, that you are not prepared to certify the agreement. Then the company and the union party to the document will need to decide what they do in response but there's - - -

PN245

THE COMMISSIONER: Why couldn't I simply say it's a misdescription and deal with it over the slip rule and say, give me another page that properly describes it?

PN246

MR SMITH: Because the company has already put the submission through me that it is not acceptable to the company to describe the party in a different way.

PN247

THE COMMISSIONER: Yes, I understand.

PN248

MR SMITH: The prime reason for that is the fact that this isn't just a misstatement or such, this was a live issue and to keep faith with its own employees.

PN249

THE COMMISSIONER: So from the company's point of view, if I say the party bound can't be the communications division from the company's point of view, it doesn't have an agreement.

PN250

MR SMITH: It's another issue though again, isn't it, Commissioner? If you say that the agreement can't be certified in its current form as opposed to what you might say on who is the formal party. But if you say the agreement can't be certified in it's current form then the parties then need to consider what they
will - - -

PN251

THE COMMISSIONER: I have to give you the opportunity under the Act but if I said I would treat it as a part of the slip rule, you'd give me another page. For example, your position as I understood it, was no, that doesn't satisfy us. That means that we don't have an agreement.

PN252

MR SMITH: The company then, would decide what it wanted to do in response but it doesn't believe that this is appropriately dealt with in that way given that this was an issue of substance unlike most matters perhaps of that nature, it may not be an issue of substance, but this was and is an issue of substance for the employees.

PN253

THE COMMISSIONER: I understand.

PN254

MR SMITH: Just in conclusion, Commissioner, we believe that the evidence and the submissions and materials that we have presented today are sufficient and should lead you to the conclusion that the agreement should be certified so we don't see a need for a preliminary decision given that you've said you would like to consider the authorities. We would request that that be done in the context of a final decision on - - -

PN255

THE COMMISSIONER: It won't be finished today because Ms Doust has got to answer one question from me and secondly has reserved the right to cross-examine. If I went away and certified the agreement now, ground of appeal one would be denial of natural justice.

PN256

MR SMITH: Yes, but Mr Dwyer's happy to get back in the witness box right now and be cross-examined.

PN257

THE COMMISSIONER: I understand. Thank you. I'll adjourn and consider all that's been put and the parties will be advised of the conclusion. If there's anything anybody wishes to put to me in writing please do so within seven days. The matter is adjourned.

<ADJOURNED INDEFINITELY [4.40PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 FOLDER OF MATERIALS PN16
MR DESMOND LEONARD DWYER, SWORN PN51
EXAMINATION-IN-CHIEF BY MR SMITH PN51
EXHIBIT #S2 WITNESS STATEMENT OF MR DESMOND DWYER PN57
DESMOND LEONARD DWYER, RECALLED ON FORMER OATH PN63
THE WITNESS WITHDREW PN173