C2005/1225, Transcript of Proceedings [2005] AIRCTrans 1935 (20 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12747-1

SENIOR DEPUTY PRESIDENT LACY

C2005/1225

WESTERN POWER CORPORATION
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION-WESTERN AUSTRALIAN BRANCH
s.127(2) - Appin to stop or prevent industrial action
(C2005/1225)

MELBOURNE

3.06PM, TUESDAY, 06 SEPTEMBER 2005

Hearing continuing

PN1

MR S HARDEN: I seek leave to appear on behalf of the applicant in these proceedings.

PN2

MR S BIBBY: I appear on behalf of the ASU, your Honour, and with me is
MR P BURLINSON, the branch secretary.

PN3

MR L EDMONDS: I appear on behalf of the CEPU, sir, appearing with
MR B GAME, state secretary of the CEPU.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Edmonds?

PN5

MR EDMONDS: Thank you, sir. If it is just the issue of leave to appear, sir, the CEPU don't consent to leave being granted to Mr Harden, sir. So, we need to satisfy one of the other limbs of the section 42(3), other than (a).

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Edmonds.
Mr Bibby, what do you say?

PN7

MR BIBBY: Yes, your Honour, we'd also like to put submissions around that point.

PN8

THE SENIOR DEPUTY PRESIDENT: You don't consent?

PN9

MR BIBBY: No, we don't consent at this point.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Harben, under what limb do you seek leave to appear?

PN11

MR HARBEN: Well, it would be both under 42(3)(b) and 42(3)(c), your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Do you want to address those matters for me, please?

PN13

MR HARBEN: Yes, your Honour. The application that's been brought is an application seeking orders pursuant to section 127 of the Act and the type of order that is being sort is one that's based on a pattern of conduct that, in our submission, has emerged and that pattern of conduct relates to the taking of unlawful industrial action. The industrial action is over a reasonably significant geographical location and over a fairly lengthy time frame, from the first episode to the most recent episode.

PN14

The factual matters are reasonably complex and the legal matters, in my submission, in relation to the making of these sorts of orders, are usually complex. The applicant seeks to engage counsel to appear on its behalf, on the basis of those complex legal and factual matters and, in addition, there is no-one within the applicant's organisation that has, on my instruction, appeared in this Commission for at least six years. So, there was no-one within the organisation who is suitably qualified or trained as an advocate to attend to these sort of matters.

PN15

In addition, I note that Mr Bibby is appearing as an advocate, it would seem, on behalf of the ASU and Mr Edmonds is a legally admitted practitioner as I understand it, and is acting on behalf of the CEPU. In addition, the two persons within Western Power who may be able to act in the capacity of advocate, and they haven't performed those duties for six years, are both likely to be witnesses in relation to the determination of this application. So, in those circumstances, your Honour, I would seek leave to appear on behalf of the applicant with respect to these proceedings.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Bibby, what do you say?

PN17

MR BIBBY: Your Honour, in our view this does not involve any complex legal arguments. The issues of fact are straightforward, a simple question of accounting for the history of the matter. On that basis, we would say it's a straightforward matter that would be no more complex than an unfair dismissal. Mr Fry, who is present in the court, has in fact experience before the Full Bench of the West Australian Industrial Commission, admittedly some time ago and secondly in unfair dismissal proceedings. We would, therefore, submit that it may be that the passage of time is such that he hasn't done it for a while, but people learn to ride bikes and never forget how to do it and I'm sure that he has not dropped the skill.

PN18

Your Honour, we note that in regard to the section it does say that there are special circumstances and, as we understand it, special as defined by the dictionary is of such a kind as to exceed or excel in some way that is unusual, uncommon, exceptional in character, quality, or degree. As I said before, this is a very straightforward matter. In our view, there is no jurisdiction for the Commission to hear the matter, in the first place, but on all fours this is straight forward and, on that basis, Mr Harben should not be granted leave to appear, if it pleases the Commission.

PN19

THE SENIOR DEPUTY PRESIDENT: Thanks Mr Bibby. Mr Edmonds, what do you say? Sorry, just bear with me. Mr Bibby are you legally qualified, I think I've asked you this question before.

PN20

MR BIBBY: Yes, sir.

PN21

THE SENIOR DEPUTY PRESIDENT: Probably because of the impressive nature of your advocacy skills.

PN22

MR BIBBY: I'm a mechanical fitter by trade, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Mr Edmonds?

PN24

MR EDMONDS: Yes, sir. Thank you, sir. If I could say, sir, I do agree with those previous comments and if I could add, sir, that it's not sufficient for the applicant to come along today and say "well, section 127 are complex matters; therefore, I ought to be allowed to appear". They have to demonstrate what is particular special about this section 127 application that it ought to allow the appearance of counsel. We'd certainly say that there is nothing that is particularly special about this application which would allow the appearance of counsel. With respect to myself appearing, sir, I appear in accordance with section 42(4)(a) of the Act, sir, in that I'm an employee of an organisation that's a party to this application. If Mr Harben wishes to appear in this matter, sir, he should go and let Western Power ….. So we'd simply say there is no need for Mr Harben to appear. There is someone from Western Power who is here today and is capable of running this application. It's not a particularly complicated application. Leave ought not be granted in these circumstances.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Edmonds.
Mr Harben have you got anything to say by way of reply?

PN26

MR HARBEN: No, your Honour, other than that in terms of whether or not there are special circumstances, Western Power is a significant and large organisation. I have been involved in terms of receiving information in relation to the episodes of industrial action. I think its fair to say there is not a person within the organisation ceased with all that information that could deal with the application, by virtue of the large of the Western Power operations, the large number of employees, the large number of sites, and the number of episodes of alleged industrial action.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Bibby made reference to a
Mr Fry. Who is Mr Fry?

PN28

MR HARBEN: Mr Fry is a human resources officer within the corporate department of Western Power. Mr Fry has been the leader of the recent negotiations for a certified agreement at Western Power. Mr Fry has not appeared in either the state or the federal Commission, on my instructions, for at least six years. He certainly doesn't hold any current practicing certificates as a legal practitioner or otherwise.

PN29

THE SENIOR DEPUTY PRESIDENT: Is he one of the people that you've said may be required to give evidence?

PN30

MR HARBEN: Yes, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Harben has applied for leave to appear on behalf of Western Power Corporation to prosecute an application for orders under section 127 of the Workplace Relations Act in respect of alleged industrial action being taken by - or proposed to be taken by - the ASU and the CEPU. Messrs Bibby and Edmonds, respectively of the ASU and the CEPU, oppose Mr Harben being granted leave to appear on behalf of Western Power Corporation. Each of them argue that there are no special circumstances warranting the leave being granted to Mr Harben under section (42)(3)(b). Each also opposed the grant of leave under section (42)(3)(c), contending that Western Power Corporation has employees of its own who are capable of adequately representing the interests of Western Power Corporation.

PN32

Mr Bibby contended that the matter does not involve complex legal arguments, it's a simple matter of facts and that it is no more difficult than an unfair dismissal case. He says, in any event, that the Commission has no jurisdiction to hear the matter. Mr Edmonds endorsed the comments made by Mr Bibby and expanded on those comments, contending that Mr Harben had not demonstrated a particular difficulty about the matter that is currently before the Commission.

PN33

Section 127 has been in the Workplace Relations Act now for a period of time and although there is a substantial amount of precedent about the provision it is not without its complexity and it is to be remembered that the orders made by the Commission under section 127 are a prerequisite to a federal court's grant of an injunction under subsection 6.

PN34

Mr Harben has submitted that the two individual officers of Western Power Corporation who might possibly be able to represent the interests of Western Power Corporation are people who have not appeared in the Commission for a period of six years and, in any event, each of those two individuals may be required to give evidence in the matter. There is authority to the effect that a person who is to be called as a witness ought not to be given the burden of representing themselves or their interests in a proceeding in which they are required to give evidence.

PN35

In all the circumstances, it seems to me that there is good reason to grant leave to Mr Harben to appear on behalf of Western Power Corporation under paragraph (c) of section 42. Because of the importance of ensuring that the prerequisites of section 127 are fulfilled in order to ensure that the time of the federal court is not wasted in making orders under section 127 or trying to enforce orders under section 127 it seems to me that it is appropriate that leave also be granted under paragraph (b) of section 42, subsection 3. Accordingly, I grant Mr Harben leave to appear on behalf of Western Power Corporation.

PN36

Now, Mr Bibby, you indicated in your submissions in relation to leave, that there was a jurisdictional issue. Is that right?

PN37

MR BIBBY: Yes, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Do you wish to outline that to me now or did you want to wait?

PN39

MR BIBBY: Sir, I'd like to wait because I am intrigued to find out on what basis this application proceeds and once again we would say that the applicant has the onus in this matter to establish the jurisdictional facts which as we understand it would give the Commission jurisdiction to hear this matter. So, I think I'll leave that to Mr Harben to establish and then respond accordingly.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR EDMONDS: Sir, if I could just raise an issue. It's our contention, sir, that the applications have not actually been served correctly on all the parties to the application itself. In particular, the application was served on the CEPU but was not separately served on the state secretary of the organisation, Mr Bill Game, who's proposed to be a separately named party to the application.

PN42

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Edmonds, you acknowledge service on the CEPU, is that right?

PN43

MR EDMONDS: That's correct, sir, but the application was not separately served on Mr Bill Game, sir.

PN44

THE SENIOR DEPUTY PRESIDENT: On Mr Bill Game, who else?

PN45

MR EDMONDS: Well, it wasn't separately served on him, sir, I'm not sure about the ASU, sir, but it certainly wasn't separately served on the state secretary of the CEPU, Mr Bill Game.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR EDMONDS: We draw the Commission's attention, sir, to rule 25(4) of the Australian Industrial Relations Commission rules, which provide that in a section 127 application the applicant must also serve a copy of the application and of the completed notice of hearing on each person identified by name in the application against whom an order is sort and such other personal persons as the Commissioner directs.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR EDMONDS: We'd say that this application is seeking an order against
Mr Bill Game separate from the CEPU. Now, you've just granted leave to a
Mr Harben on the basis that this application is a complicated application with legal implications. What we'd say is that under those circumstances, it may be necessary for Mr Bill Game to obtain separate legal advice on the implications of this application against him personally and it may be necessary for him to get separate legal representation. I'm here to act for the CEPU, sir, but it may well be that there's a conflict of interest between the interests of the organisation - - -

PN50

THE SENIOR DEPUTY PRESIDENT: I thought when you announced you appearance, you announced your appearance for you and Mr Game.

PN51

MR EDMONDS: No, sir, I announced an appearance on behalf of the CEPU and announced with but separate from Mr Bill Game, but that was prior to the Commission pointing out I suppose, sir, that the application is a legally complicated application and one that has quite serious implications.

PN52

THE SENIOR DEPUTY PRESIDENT: Mm.

PN53

MR EDMONDS: Certainly, sir, I'd say if it is a legally complicated application then it may well be necessary for the state secretary of the CEPU to get separate legal representation in that he's separately named or is a separate party to the CEPU in this application.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR EDMONDS: Now, sir, rule 25(4) of the Australian Industrial Relations Commission rules provides that the applicant must serve a copy of the application and of a completed notice of hearing on each person identified by name in the application against whom an order is sought. So we'd say under those circumstances, sir, this application ought be adjourned off until such time as those rules have been complied with and the application has been served properly on
Mr Game to enable himself to obtain separate legal representation or at least separate legal advice. Whether or not he chooses that representation to appear for him, he should at least have the opportunity of obtaining some separate legal advice on the matter, sir.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, why is it necessary to adjourn the matter off if, as you say, service is not established on Mr Game then I simply can't make an order against him, can I?

PN57

MR EDMONDS: Well that is certainly another option, sir, and certainly if the Commission was to see the matter that way then that's certainly one way it could proceed today, sir.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well it's up to
Mr Harben, then.

PN59

MR BIBBY: Sir, if I may just make the same observations in regard to
Mr Burleson and a Mr Davies who is also noted in the order. It was our proposal to address that matter if indeed jurisdiction was found, but Mr Edmonds has a very good point on this matter and it may be appropriate - well, we were going to raise that issue down the track. In our view, when one looks at the order, it flies in the face of all the established full bench authorities about being specific and unambiguous, but we'll put that aside for the moment and reserve our rights in regard to Mr Burleson and Mr Davies being represented in due course.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Mr Harben what do you say about service?

PN61

MR HARBEN: Well, your Honour, with respect to the issue of service, I would need to confirm the base upon which we would say service was affected, by reviewing the file and advising you on how service was affected in respect to the respondents.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, but I mean I'd need some evidence, it says. As it is, ASU and CEPU have submitted to the jurisdiction, subject to you establishing jurisdiction. So far as Mr Burleson and Mr Game are concerned, issue is taken about whether or not they were served in accordance with the rules.

PN63

MR HARBEN: Yes, your Honour. I'd need to review the file to identify the letters of service which I could produce to you and satisfy you about whether or not service has been affected within the requirements of the rules.

PN64

THE SENIOR DEPUTY PRESIDENT: Well, do you have the file there or not?

PN65

MR HARBEN: I do have the file here. I seek a short adjournment to review the file and identify those letters.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. All right. I'll stand the matter down for five minutes.

<SHORT ADJOURNMENT [3.28PM]
<RESUMED [3.39PM]

PN67

THE SENIOR DEPUTY PRESIDENT: Yes Mr Harben?

PN68

MR HARBEN: Thank you, your Honour. I've located copies of letters dated 30 Aug, which was the date the current application was filed in the Commission, and they're facsimiles to the secretary of the CEPU and the state secretary of the Western Australian branch of the CEPU, attaching a copy of the application. I also have the facsimile confirmation in relation to those faxes. Similar correspondence to the ASU, its federal head office in Victoria and facsimiles to the state secretary of the Western Australian branch of the ASU, attaching a copy of the 127 application, with confirmation of the facsimile. I accept that it does not appear that a copy of the application was served on Mr Mark Davies, but it would be our submission that Mr Burleson is the state secretary of the ASU and we would submit that a copy was faxed to him.

PN69

On 31 August 2005, we faxed the notice of listing in relation to the application and that was faxed to the secretary of the federal CEPU and to Mr Bill Game, state secretary of the Western Australian branch of the CEPU. I have the facsimile confirmations of those. With respect to the ASU, on 31 August we faxed through to the secretary of the ASU in Victory, Mr Burleson who was described as the state secretary of the ASU, and Mr Mark Davies who was described as the industrial officer of the ASU, a copy of the notice of listing in relation to the application. I have before me that correspondence and the facsimile confirmations from that fax of 31 August 2005.

PN70

I have those documents here and I appreciate they are not before your Honour, but we would say that we've met the requirements with respect to service of the application and further that all those parties that were named in the application are present in the Commission today with the exception of Mr Davies who I understand commenced a period of leave fairly recently for about three weeks. I also note that the manner in which we have served the documents on both the ASU and CEPU are in the same form as we have previously served them in relation to an earlier 127 and I note that there has been no objection in relation to service on that occasion.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, all right. What do you say,
Mr Bibby?

PN72

MR BIBBY: Your Honour, there are a number of errors in terms of the service. Mr Burlinson is not the "state secretary" of the ASU, there is no such office under the rules of the Australian Services Union. Secondly, Mr Davies is not an industrial officer. It is our contention, in the light of both rule 25 and rule 75, each of those individuals should have been issued with separate applications served at their home addresses and that was not done.

PN73

THE SENIOR DEPUTY PRESIDENT: Why do you say that?

PN74

MR BIBBY: Well, sir, as it stands Mr Davies at this point in time is in hospital having extensive surgery and on that basis he is not contactable via his employer, the union, and we believe in the circumstances he could have then been alerted to the proceedings and could have made arrangements to be represented, but that was not done and on that basis we believe that Mr Davies should, therefore, be struck out of the order immediately. Similarly, with Mr Burlinson, as I said before, we have substantial submissions and evidence to show that there is no jurisdiction to support some of the contentions that we see in the draft order. On that basis, we say the Commission does not have power to issue the order in the first place.

PN75

Having said that, given the seriousness of 127, we believe it incumbent upon the applicant to make - particularly with the immense resources that Clayton Utz has at their disposal - to make sure they take the appropriate steps and dot the Is and cross the Ts. On that basis, we would suggest there should be an adjournment so that those steps should be taken. Otherwise, both Mr Davies and Mr Burlinson should be struck out of the proceedings and that should be set to one side. Sir, we'd say you obviously have the power to do that under section 111, I think it's (1)(t). We would, therefore, submit that that should happen and, on that basis, in their capacity as individuals they should be allowed to leave the court.

PN76

THE SENIOR DEPUTY PRESIDENT: Mr Edmonds, what do you say?

PN77

MR EDMONDS: Sir, I've got nothing further to add to that at this point, other than to say that this issue is fairly and squarely contested by the CEPU. The applicant continues to pursue an application against Mr Game, now that's a matter for Mr Game, sir, but I would be saying in the first instance that he has not been served correctly, that he should have been told to get separate legal advice, and that the applicant should be put to proof on the issue of service of Mr Game prior to actually seeing that the order be issued against him individually.

PN78

THE SENIOR DEPUTY PRESIDENT: Well, isn't it a case of, Mr Harben, you establishing proof of service in order to proceed in any event, if you want to proceed against Messrs Burlinson, Game, and Davies. I mean, you've told me about letters, but I've seen no evidence at this stage of how service was affected. I don't know, you may be intending to call evidence about that.

PN79

MR HARBEN: Yes, your Honour, I could certainly file an affidavit with respect to service.

PN80

THE SENIOR DEPUTY PRESIDENT: Well, do you want an adjournment?

PN81

MR HARBEN: What I would propose doing is filing that affidavit within the next 24 hours concerning - - -

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, but I mean the difficulty is this. As there is an issue about whether or not Mr Game and Mr Burlinson have been served, Mr Edmonds says Mr Game is entitled to separate legal representation. He may or may not call separate legal representation, that would be a matter ultimately that if he didn't would go to the exercise of my discretion in some way, but if they want an adjournment on those bases then I need to be satisfied, first of all, that there has been service on those people in order to proceed against them and in order to determine whether or not they should be entitled to take an adjournment to get separate legal representation.

PN83

MR HARBEN: Yes, your Honour, I'm certainly not at present in a position to lead evidence about the service of the applications.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, well what do you want to do? I mean, at the end of the day, if you don't establish to my satisfaction that those people have been served and have had a reasonable, proper opportunity to get legal representation - as they propose to do - then I simply couldn't make an order against them.

PN85

MR HARBEN: Yes, your Honour. In those circumstances, we would seek an adjournment, purely to be in a position to lead evidence to satisfy you that service with respect to Mr Davies, Mr Burlinson, and Mr Game had been in compliance.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes. All right, well, how long do you want?

PN87

MR EDMONDS: Sir, this is a secondary issue which arises, which we will get to, sir, but it goes to the substance of the application itself and it's an issue that perhaps could be fixed up by an adjournment for the applicant to enable them to properly particularise their claim. In particular, sir, at paragraph 8.1 of the application, sir, the applicant lists I suppose a series of grounds upon which this application is brought. Now, this is an application against the CEPU and the ASU, sir, ….. on the basis that there's been a pattern of industrial action occurring such which - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Just a minute. Mr Bibby, when you're shuffling your papers around I don't get to hear much of the very intelligent argument that Mr Edmonds is putting.

PN89

MR EDMONDS: My apologies, your Honour.

PN90

MR EDMONDS: You certainly flatter me, sir. Sir, if I could say that at paragraph 8 of the application, headed up 'grounds', the applicant lists a series of grounds upon which they bring an application against the CEPU alleging there has been a pattern of industrial action such that would warrant the making of an order for an extended period of time. Now, in those ground that are listed down, there is actually no list of alleged industrial action being taken by the CEPU at all, sir, so we're certainly at a loss to understand precisely how the applicant intends to establish there's been a pattern of industrial action on the part of the CEPU.

PN91

What we perhaps ask, sir, is that while the applicant takes an adjournment to establish the issue of service that they should also take that opportunity to properly ground their application, I suppose, or to provide us with proper particulars of the allegations that are being made against the CEPU, because there's simply nothing there listed that would establish a pattern of industrial action on behalf of the CEPU. There's no action.

PN92

THE SENIOR DEPUTY PRESIDENT: Isn't that a manner of evidence? I mean, if they don't lead evidence to establish it - - -

PN93

MR EDMONDS: It is a matter of evidence, sir, but certainly if they were to lead evidence of a pattern of industrial action which hadn't been particularised in the application, all that would happen is that after they'd led their evidence we'd ask for another adjournment to enable us to take instructions and to seek instructions over the allegations that they raise in their evidence.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, well, it's a matter for Western Power. If they wish to proceed on that basis then they run the risk of it being possibly adjourned off. It will depend, I mean at the end of the day I may be satisfied that the evidence demonstrates that you were well aware of the pattern of industrial action that is alleged, then again I may not. So, it'll depend on the evidence, ultimately.

PN95

MR EDMONDS: Certainly, sir. I'm happy to actually on the basis - but I'll flag that as an issue at this point in time - - -

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, but that's a matter for Western Power. They are alerted to your concerns about it.

PN97

MR EDMONDS: Yes, sir. Thank you, sir.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Harben, how much time do you want?

PN99

MR HARBEN: Well, I would probably need 24 hours to file an affidavit of service.

PN100

THE SENIOR DEPUTY PRESIDENT: Is there industrial action happening at the moment?

PN101

MR HARBEN: On my instructions, no there is not.

PN102

THE SENIOR DEPUTY PRESIDENT: Well, all right, I'll adjourn the matter until 1pm - - -

PN103

MR BIBBY: Sir, if - - -

PN104

THE SENIOR DEPUTY PRESIDENT: Yes?

PN105

MR BIBBY: Sir, if I may just interject. My understanding is that there has been an agreement reached between Western Power and the ASU to have meetings on Thursday to progress discussions in regard to the certified agreement. On that basis, it was one of the planks our argument to demonstrate that the parties are in fact still discussing matters amongst themselves. The essence of our submission is that, with good communication, we the issues disappear and there would be no problems between the parties. On that basis, we would put a submission that it would be more appropriate, well our fundamental position is the matter should be dismissed for want of jurisdiction, but, having said that, in terms of an adjournment, we're suggesting next week some time.

PN106

THE SENIOR DEPUTY PRESIDENT: No, I'll adjourn it until - I mean, the act requires me to deal with these matters expeditiously - I'll adjourn it until 3pm eastern standard time tomorrow, 1pm West Australian time tomorrow.

PN107

MR HARBEN: Your Honour?

PN108

THE SENIOR DEPUTY PRESIDENT: Yes?

PN109

MR HARBEN: If I may, it may assist - and I accept what Mr Bobby's said in terms of there being scheduled meetings between the union and the various of its shop stewards, which are scheduled for Thursday and similar meetings have been arranged and I understand authorised as between the CEPU and their members - it may, in my submission, facilitate if we could go to conference briefly and just address you on the situation as it currently stands with respect to those negotiations because we share in part the concern that's being expressed by
Mr Bibby, that being that negotiations - if they can be concluded - would naturally lead to an end to what we say has been a period of recent industrial disputation.

PN110

THE SENIOR DEPUTY PRESIDENT: Why shouldn't I, in those circumstances, regard the application as a thing interim, if you like? I mean, as I say, subsection 3 requires the Commission to deal with an application under 127 as quickly as practicable.

PN111

MR HARBEN: Yes, what we would say is the application does not relate to industrial action that's current on foot. The basis of our application will be that there has been a pattern of conduct and further industrial action is probable or likely based on that pattern. So, the requirement to hear and determine quickly with respect to this application means that the application is in a slightly different class to the standard application in the sense that there is currently no industrial action on, but it is our contention that there is a pattern of conduct that has emerged and that pattern of conduct pertains to the current negotiations for a new certified agreement and that certified agreement may or may not be concluded by Thursday of this week.

PN112

THE SENIOR DEPUTY PRESIDENT: I'll adjourn into conference, for the moment.

<SHORT ADJOURNMENT [3.58PM]
<RESUMED [4.22PM]

PN113

THE SENIOR DEPUTY PRESIDENT: During the brief adjournment I have had some discussions with the parties about the further dealings with this application that's currently before the Commission. I have indicated that I am proposing now to adjourn the section 127 application until 2pm Western Australian time, Tuesday 13 September. At that time, I will seek to assist the parties with conciliation unless otherwise advised that the company, or Western Power, then wishes to prosecute the application by way of arbitration. Mr Harben, you wanted to say something else about the application in the interim?

PN114

MR HARBEN: Yes, your Honour, I give an undertaking on behalf of the applicant that it will not seek to prosecute the section 127 application until the conciliation before your Honour on Tuesday has been completed.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Did you want to say anything else, Mr Bibby?

PN116

MR BIBBY: No, your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Mr Edmonds?

PN118

MR EDMONDS: No, sir, I have nothing further to add. Thank you, sir.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Very well. All parties have liberty to apply in any event if anybody wishes to have conciliation prior to Tuesday the thirteenth, regardless.

<ADJOURNED UNTIL TUESDAY 13 SEPTEMBER 2005 [4.24PM]