AG2005/6018, Transcript of Proceedings [2005] AIRCTrans 2529 (19 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13598-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2005/6018

APPLICATION BY CITY OF CHARLES STURT & AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION-SOUTH AUSTRALIAN AND NORTHERN TERRITORY BRANCH
s.170LS - Agreement about industrial dispute (Division 3)
(AG2005/6018)

ADELAIDE

11.10AM, FRIDAY, 02 DECEMBER 2005

PN1

MR G WILCOX: On behalf of the ASU. If it please the Commission.

PN2

MR P TRUMBLE: I represent the City of Charles Sturt.

PN3

THE SENIOR DEPUTY PRESIDENT: As the parties would be aware the majority of issues relative to this agreement have been resolved through an e-hearing process. There are however a number of matters that mean that I need to get some further clarification or upon which I need to get some further clarification from the parties. I am working from the premise, Mr Wilcox and Mr Trumble that you have looked at the email my associate sent to you on a given day and you are aware of those various questions.

PN4

MR WILCOX: Monday 21st.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you through those issues. First of all in relation to clause 8.2 which relates to the role of the ECC. I understand the advice provided to me by the parties but I still require some further clarification in terms of how I can read the limited capacity for employees to be participants in that ECC as being consistent with the requirements of the Freedom of Association provisions. In the context of the role allocated to that ECC which is spelt out in both clause 8.1 but also in terms of clause 8.2.5.

PN6

Now I hasten to add that the question that I have in this regard is entirely related to section 170LU(2)(a) which is a provision of the Act which comes under the remedial umbrella if I can call it that of 170LV. So that an issue that might otherwise stop certification of the agreement in terms of section 170LU(2)(a) can potentially be resolved by way of undertakings given pursuant to LV of the Act. Mr Wilcox, do you want to start the ball rolling?

PN7

MR WILCOX: Yes sir.

PN8

THE SENIOR DEPUTY PRESIDENT: You look suitably enthused about that.

PN9

MR WILCOX: Sir, it may not surprise you at all that we perhaps expected that you might seek an undertaking of the sort that section 170LU requires and certainly sir, the parties have conferred and are quite happy to give an undertaking that the ECC in respect to its, carrying out its functions and the outcomes that might arise from that process will at no stage have regard for the union affiliation of employees in either the performance of its functions or in the application of any outcomes that may arise. Quite simply the ECC will make no distinction between union and non union employees at any stage sir.

PN10

THE SENIOR DEPUTY PRESIDENT: All right. Thank you and I take it, Mr Trumble, that is a collective undertaking?

PN11

MR TRUMBLE: That is, sir. We are quite happy to agree to that undertaking that Mr Wilcox suggests.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, if I can then take the parties to clause 11.2. The questions I have about clause 11 which relates to various contracting initiatives. Have their genesis in the High Court Electrolux decision and in particular relate to section 170LI and as such the luxury of undertakings is not open to either the parties or the Commission. Now if I just ask the parties to look first of all at clause 11.2. To what extent can the parties confirm to me that the reviews, sorry the reviews envisaged in sub clauses 11.3 and 11.4 incorporate no element of a prohibition on contracting arrangements and simply outline the process that would be followed in order to enter into or maintain those arrangements.

PN13

MR WILCOX: Sir as was submitted in our written submission to you by way of the e-hearing it is the parties submission that clause 11.2 certainly does not extend to a prohibition on the use of contractors. As was submitted – if I might just turn to those submissions for a moment sir. The objective of the consultative review is to consider the impact on employee job security, remuneration and the services provided by the council, sir, the operational requirements of the council. It is not in any way intended to represent a restriction on the use of contractors. Rather that council should undertake a review process to assess the impact that such use of contractors may have on existing employees in terms of their job security, remuneration and operational requirements of the council.

PN14

THE SENIOR DEPUTY PRESIDENT: Well then if I ask you to look at clause 11.3.4 can I take it then that what you are saying to me is that the role of the ECC in that regard is simply a consultative function.

PN15

MR WILCOX: Indeed sir.

PN16

THE SENIOR DEPUTY PRESIDENT: And that there is no capacity for that ECC to assume a decision-making role in terms of a prohibitive capacity in any form?

PN17

MR WILCOX: That is correct, sir and as is – perhaps it is just with a proviso sir that in 11.4.2 the ECC may make recommendations in respect of the outcomes of those reviews.

PN18

THE SENIOR DEPUTY PRESIDENT: I see.

PN19

MR WILCOX: Of course there's not a determining recommendations sir obviously.

PN20

THE SENIOR DEPUTY PRESIDENT: The prerogative still rests with the council in that regard.

PN21

MR WILCOX: Indeed.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. All right.

PN23

MR WILCOX: The only thing that might possibly be characterised as a restraint in any sense, sir, is the mere requirement that the review is conducted.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes I understand that. I don't see that aspect of a commitment as the sort of constraint that would prohibit certification.

PN25

MR WILCOX: Certainly.

PN26

THE SENIOR DEPUTY PRESIDENT: With perhaps the caveat that I am addressing that in the context of the current legislation. Who knows what might or might not be the case in the future.

PN27

MR WILCOX: We are all busily trying to assess what that might be, sir, at the moment.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Now, if I can then take you to clause 13. It deals with labour hire and again this question has its genesis on the requirement that the terms of the agreement pertain to the employment relationship. It also reflects the Full Bench decisions in a number of matters but most particularly recently in the Excel matter to which the parties have been referred and the issue that I have in that respect is that a consideration of clause 13.1 appears to establish first of all that there is a limitation of some sort on the council's capacity to utilise labour hire.

PN29

In contrast had the clause simply set out what the council will do in terms of the sort of relationship it might have with a labour hire contractor then the logic applied by the Full Bench in Excel would indicate that that type of provision was clearly available to the parties in terms of this agreement. It is the extent to which clause 13.1 has a prohibitive element in it that is causing me difficulty and I wanted to give the parties the opportunity to address this issue.

PN30

MR WILCOX: Sir 13.1 in our submission and I have conferred with Mr Trumble in respect of this clause and 13.1 is a facility provision. It doesn't intend to be prescriptive. It makes it very clear to all the parties that labour hire may indeed be used so contrary to it being in any sense a prohibition on the use of labour hire at council, sir, in our submission that clause makes it very clear that labour hire is appropriate. It is a facilitative rather than prescriptive clause. It is suggested that if labour hire were to be used in a manner perhaps other than that contemplated by that clause that the ECC would be consulted and the processes in clause 8.1 would be considered and applied.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes but if I move on to 13.2 that establishes some very clear limitations. It basically says that labour hire placements would not exceed nine months unless they fall into one of that range of circumstances that are detailed in that particular provision. Now have I misread that clause?

PN32

MR WILCOX: No sir, you haven't misread it and in our respectful submission and considering the Full Bench's decision in the NUW and Excel case, we rely on the statement from the Full Bench that whether something constitutes a prohibition is in fact a question of degree. It is clear on the reading of clause 13.2 sir that it does seek to have posed some limitations. In our submission those limitations do not extend to a prohibition on the use of labour hire. Employees labour hire contractors sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

MR WILCOX: Indeed the provisions are consistent with measures to protect the wages and conditions of employment which were found to be matters that pertain sir, in that decision.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes I understand what you are saying to me. I must say I am still troubled by that provision but I will consider that subject to anything Mr Trumble might want to say in a moment. If I go on to 13.3 can I take it that what you are saying to me there is that that provision is incidental to the operation of 13.1 and 13.2?

PN36

MR WILCOX: Yes sir. We would say that is an incidental or ancillary clause too.

PN37

THE SENIOR DEPUTY PRESIDENT: In that it is not being argued that in effect the information about labour hire employees is of any direct relevance or interest to the ECC. It is only of interest to the ECC in terms of enforcing the limitations that are set out in 13.1 and 13.2.

PN38

MR WILCOX: Well sir as we have previously submitted the ECC doesn't have an enforcement capacity as such. It is a consultative arrangement.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MR WILCOX: Certainly the ECC would have the capacity in being provided with the information in 13.3 to look at any issues that may have been in dispute between the parties about that in accordance with the dispute resolution function that the ECC has which I would like to stress there is of course a limited function and does in no way ….. the grievance and dispute resolution processes which the agreement provides for.

PN41

So in the context of the operation of that clause we would submit that the ECC would have the capacity to look at the sorts of numbers of labour hire of staff that are being used and again at numbers, sort of operations that they are being applied to and in the context of considering that use in terms of the prescriptions of the agreement and furthermore in terms of its impact on the job security, remuneration and operational requirements of council.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Well then if I go to 13.4.

PN43

MR WILCOX: Sir.

PN44

THE SENIOR DEPUTY PRESIDENT: On whom does that impose obligations?

PN45

MR WILCOX: On the employer, sir.

PN46

THE SENIOR DEPUTY PRESIDENT: On the council does it?

PN47

MR WILCOX: Yes sir. In accordance with the – again the sorts of reason that the Commission has just alluded to in NUW where quite clearly it is impermissible for these parties to seek to impose some sort of obligation on a third party ie. a labour hire provider. That clause represents an undertaking by the employer given to its employees that - - -

PN48

THE SENIOR DEPUTY PRESIDENT: Sorry, when you say the employer, you mean the council?

PN49

MR WILCOX: Yes sir.

PN50

THE SENIOR DEPUTY PRESIDENT: Right. Thank you.

PN51

MR WILCOX: Yes. Sorry. Let's be clear about that.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR WILCOX: An undertaking by council given to council employees that in engaging labour hire it will seek to ensure as part of its end of that contractual arrangement that the labour hire employees are paid at a rate that is commensurate with that that is paid to permanent employees or just employees.

PN54

THE SENIOR DEPUTY PRESIDENT: But does it say that, Mr Wilcox? That is the dilemma I have got. The plain words say that labour hire employees will be paid at the agreement rates. Now, - - -

PN55

MR WILCOX: Sir I think what we have here is perhaps - - -

PN56

THE SENIOR DEPUTY PRESIDENT: In contrast if you look at Schefenacker there the plain words were to the effect that the host employer if I can use that term, is the party – the employer party to the agreement was going to take some steps to advise its labour hire contractors to do a certain thing.

PN57

MR WILCOX: That is not contemplated by this clause, sir. That clearly would be impermissible and the - - -

PN58

THE SENIOR DEPUTY PRESIDENT: But in Schefenacker it wasn't impermissible. It was found to be permissible for the host employer to take some endeavours to ensure that the arrangement entered into with those labour hire contractors had certain characteristics and the result or outcomes - - -

PN59

MR WILCOX: Yes sir, I misunderstood your - - -

PN60

THE SENIOR DEPUTY PRESIDENT: In this provision the clause seems to establish a right to labour hire employees which is the domain of the labour hire employer and its employees and to that extent clause 13.4 causes a separate set of problems.

PN61

MR WILCOX: I think it is fair to say, sir, that clause 13.4 perhaps is too succinct. It doesn't properly or give enough detail in expressing the intention of the parties but certainly the intention of the parties is that this represents an undertaking by the council to its employees in respect of the terms upon which it will engage labour hire agencies.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR WILCOX: It certainly does not seek to impose on any non party to the agreement any rights or obligations to pay an equivalent rate to council employees.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes I understand what you are saying to me, yes. Is there anything else you want to say about clause 13, Mr Wilcox? If not I might ask Mr Trumble if he wants to comment on that particular clause which of the clauses about which I sought clarification today it is the one that is causing me the greatest degree of difficulty at the present time.

PN65

MR WILCOX: Well I believe most of what – perhaps beyond clearing up or putting on transcript parties intentions in respect of clause 13.4 I believe that most of the issues that clause 13 raises are addressed in our written submissions and I would stand on those if I may, sir.

PN66

THE SENIOR DEPUTY PRESIDENT: All right. The dilemma that we have got in this regard, Mr Wilcox is that whilst the parties may have a clear intention, if a court is looking at the document they, like me, will be obligated to look at the plain words of it and that is what is causing me the difficulty.

PN67

MR WILCOX: Yes I fully understand that, Commissioner, but I think a number of interpretations could be placed on the clause. It is certainly the intention of the parties that the interpretation to be placed on that clause is permissible in its effect. It was never the intention of the parties to seek to impose obligations on third parties, non parties to the agreement in a manner that was prescribed in the NUW and Excel decision and indeed further back to the decision of ….. in the High Court.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Thank you. Now, Mr Trumble, do you want to say anything about clause 13 having had the benefit of Mr Wilcox fielding my questions first of all?

PN69

MR TRUMBLE: Thank you, sir. Yes I would like just to add a couple of comments that the joint view, sir, is that this could only be deemed as a limitation not a prohibition so I agree with my colleague on that particular matter. An intention of this clause actually does have an impact on one of the fundamental aspects of the employment relationship and that is job security which is probably the most fundamental of all employment conditions and whilst it is accepted that there is some limitation of the nine months I don't believe it is a prohibition to use labour hire per se. The other thing I would add - - -

PN70

THE SENIOR DEPUTY PRESIDENT: What happens then at the conclusion of that nine month period?

PN71

MR TRUMBLE: Sure. What happens almost always in practise sir, that if the – and it rare that they actually go for nine months but let's say that is the maximum that is placed in the agreement, is that we in most cases would actually appoint that person onto our payroll and take up employment directly with Charles Sturt with some transfer fee to the labour hire agency accordingly. In other cases if it is – depending on the reasons why we put the labour hire, if it is for a short term project only then that person would obviously not be taken up by council employment and would return to their labour hire company.

PN72

THE SENIOR DEPUTY PRESIDENT: And what do you say happens in the context of the agreement obligations? That is if a labour hire employee is used, let's say in a circumstance which does not reflect maternity, sick, another form of leave for a period of say 10 months. Are you in breach of the agreement?

PN73

MR TRUMBLE: We would I guess – and this has actually happened, sir, that where that is intended to occur for unusual reasons and I repeat that is very rare that would occur, we would go back to the ECC with a consultation process with the ECC, explain the circumstances and attempt to reach some consensus at that level if there were reasons that could extend beyond nine months. So - - -

PN74

THE SENIOR DEPUTY PRESIDENT: But are you in breach of the agreement?

PN75

MR TRUMBLE: We don't believe so sir, in the sense that the ECC can look at those issues. I guess there may be a case that is not tested. It is difficult to answer that, whether we would be in breach unless all the circumstances were known.

PN76

THE SENIOR DEPUTY PRESIDENT: You see the issue that is plaguing me is, I can understand the practical and commendable, from the point of view of industrial harmony desire to go back to the ECC but as Mr Wilcox has pointed out, that ECC is a consultative process.

PN77

MR TRUMBLE: Correct sir.

PN78

THE SENIOR DEPUTY PRESIDENT: And I don't think you are saying to me that the employer has got the capacity to decide to pay someone less than the rates of pay in the agreement on the basis it had gone to the ECC and agreed to do that.

PN79

MR TRUMBLE: That is certainly correct sir.

PN80

THE SENIOR DEPUTY PRESIDENT: That won't allow you to escape the obligations established by the agreement and in that context I am not quite sure what the difference between clause 13 and the rates of pay clause is because - - -

PN81

MR TRUMBLE: Probably in practise sir.

PN82

THE SENIOR DEPUTY PRESIDENT: A plain read of clause 13 establishes some clear sort of restrictions.

PN83

MR TRUMBLE: Sure. Potentially under the enterprise agreement law and its legal status that it has I would concur with what the Commissioner is saying. I guess in practise the issue exceeding nine months is an issue that can be pretty easily worked out under special circumstances where the rates of pay issue doesn't come up as an issue.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes.

PN85

MR TRUMBLE: In practical terms. If I may add sir re 13.4 in terms of the rates of pay and I think the Commission understands that the practical reason why that is there, with the Commission's permission, would it be helpful to you sir if we gave an undertaking on that particular clause to really reflect what actually happens in practise with similar wording to the Schefenacker - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Clearly tell me your intention. I can't use section 170LV or an undertaking given under that section to fix a problem that has its genesis in 170LI and the reason that I can't do that is to be found in 170LV itself where that section refers specifically to sections 170LT and LU. Now section – successive decisions of the Commission going from a very arbitrary starting point from Atlas Steels a few years ago right through to Schefenacker and even later decisions appear to be predicated on the requirement that section 170LI sets out a set of conditions precedent to the making of an application that can be considered for certification.

PN87

Now I can listen to any undertaking you might give me and I can try and read the clause in the context of that undertaking but I am doing neither the employer nor the union a favour if I turn a blind eye to the successive full Commission decisions about section 170LI because I would then be certifying an agreement and in the context of what I generally call the Electrolux amendments I would be putting that credibility and the extent to which the parties could rely upon their overall agreement at risk by certifying it. So I am very happy to hear any undertaking that you might want to put to me but I do need to preface my consideration of it in that context. Does that help you?

PN88

MR TRUMBLE: It does. Am I able to ask leave to just confer with my colleague?

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Feel free to do so.

PN90

MR TRUMBLE: Thank you sir. After conferring with my colleague we won't make such an undertaking to the Commission at this time, sir.

PN91

THE SENIOR DEPUTY PRESIDENT: I don't want to stop you saying anything you want to say to me about clause 13 and I - - -

PN92

MR TRUMBLE: I understand that sir.

PN93

THE SENIOR DEPUTY PRESIDENT: And I can confirm to you I will be going away from this hearing thinking about how I can read that clause so as to get you across the line if I can use the line in the context of the phraseology in NUW and Excel.

PN94

MR TRUMBLE: No I don't think I have anything further to add sir based on that we would I guess repeat that we don't see it as a prohibition.

PN95

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN96

MR TRUMBLE: Notwithstanding what we said. Thank you sir.

PN97

MR WILCOX: Sir if I might make some additional comments on that in relation to my friend's response put to you.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes Mr Wilcox.

PN99

MR WILCOX: I think that the Commission, with respect, was in the right in saying that a labour hire placement in excess of nine months would – it would appear on the plain reading of that clause be a breach of the agreement and so we don't resile from the fact sir that this is a limitation.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes.

PN101

MR WILCOX: It is clearly a limitation. What we do submit in respect of that and what we have submitted sir, is that this does not extend to a prohibition and that question of whether or not it does or does not extend to a prohibition is of course a question for ….. In our respectful submission the degree to which this limits an employer's capacity to utilise labour hire given the, as Mr Trumble has just submitted, the practical use of labour hire in the workplace the degree to which this reflects the limitation does not extend to a prohibition.

PN102

THE SENIOR DEPUTY PRESIDENT: Well if I took that issue a step further, Mr Wilcox, if a labour hire employee was not paid the rate of pay contained in this agreement, is there a breach of the agreement?

PN103

MR WILCOX: No sir. Not if the employer has sought to discharge its obligations under the agreement which is, as the Commission raised earlier, that obligation really comes into play at the time of making, the formation of that relationship with the labour hire agency. So the employer has given, the council has given an undertaking to its employees that in forming a relationship with a labour hire agency it will through its contractual part of that bargain seek to ensure that labour hire agency employees are remunerated at a rate that is equivalent to that of council employees in a way that we believe is permissible following from the decision of - - -

PN104

THE SENIOR DEPUTY PRESIDENT: And what you are saying – if I understand it correctly what you are saying to me is that the commitment – I won't use the word undertaking for obvious reasons but the commitment given by the council to its employees is that a condition of contracting with a labour hire firm will be that that labour hire firm pays employees working at the council at the same rates as are prescribed by this agreement.

PN105

MR WILCOX: Yes sir. In terms of negotiating a contract with a labour hire agency where it is intended that that agency will provide services on the council site, the council will seek in its contractual negotiations to ensure that the labour hire agency will – or the employees of the labour hire agency will be paid at an appropriate rate. If it turns out to be the case that the employees are not receiving that rate, that would not constitute a breach on the part of the employer and nor of course would it constitute a breach on the part of the labour hire agency of course because they are non parties to the agreement. What it might constitute sir is a breach of the contract that has been formulated between the labour hire agency and the employer.

PN106

THE SENIOR DEPUTY PRESIDENT: And if the labour hire agency had its own certified agreement that prescribed for a different set of rates where would I read – how would I read this particular provision?

PN107

MR WILCOX: Well I would suggest sir that in that instance the labour hire agency may need to look at the creation of an agreement specific to employees employed on that site. I mean really that is – it is very difficult for the parties to this agreement to assess how a labour hire agency may or may not seek to discharge any undertakings or any contractual obligations that it enters into freely with the council. I think that is a matter for the labour hire agency to concern itself with, sir, rather than the parties to this agreement. The parties to this agreement merely have an understanding between them that the employer, the council, in contracting to a labour hire agency will obviously advise that labour hire agency that its expectation is that employees that the labour hire agency provides to council would be paid at a rate equivalent to council employees.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes.

PN109

MR WILCOX: And that sir we understand is a process that is permissible. It is obviously geared towards protecting the job security of employees.

PN110

THE SENIOR DEPUTY PRESIDENT: It is just a pity it didn't say that, Mr Wilcox.

PN111

MR WILCOX: I beg your pardon, sir?

PN112

THE SENIOR DEPUTY PRESIDENT: It is just a pity you didn't say that in crafting the agreement.

PN113

MR WILCOX: Yes sir. Yes I have to agree with respect.

PN114

THE SENIOR DEPUTY PRESIDENT: All right. The only other question that I have relates to clause 17.3. The questions I raised in relation to clause 17.3 went to the Freedom of Association provisions again. The response from the council is supported by the ASU. I am sorry there are two other issues. To what extent are the parties able to give me an undertaking that confirms the advice and in particular the advice provided at the – from the council in this regard?

PN115

MR WILCOX: Sir, I think that this clause should be understood in perhaps a similar fashion to other clauses in the agreement which give a consultative and in some cases even a very minor dispute resolution type role to the enterprise committee.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes.

PN117

MR WILCOX: The undertaking that I believe the Commission is seeking is - the parties are more than happy to give and that is that at no stage in that consultative process or any sorts of processes undertaken by the ECC would the union affiliation or otherwise of particular employees be at all relevant. That is to say that in exercising its functions in the processes that it carries out and in any outcomes that arise from that there would be no distinction made between union and non union employees.

PN118

THE SENIOR DEPUTY PRESIDENT: All right. Thank you and lastly in terms of clause 20 where a similar issue arises can I take it that you are giving me a similar undertaking in that respect?

PN119

MR WILCOX: Indeed sir. Yes. I really think that that undertaking applies to all instances in the agreement where matters are referred to the ECC and I might simply add that in every instance as well there is always the proviso that any party has a right to access the grievance and dispute resolution procedure separate from those proceedings.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Wilcox. Mr Trumble, similarly is the council able to give me an equivalent sort of undertaking with regard to clauses 17.3 and 20?

PN121

MR TRUMBLE: Thank you sir. Yes we would certainly endorse that undertaking that Mr Wilcox has mentioned to you on both those clauses and indeed throughout the agreement wherever that applies.

PN122

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. What I will do in this matter is I will take the advice provided to me by the parties today away and ponder upon it. I can advise the parties that the only clause that is causing me great difficulty is clause 13. I fully understand the intention of the parties in that regard. The struggle that I am having is reconciling that intention with the actual words in the document. If I can certify the agreement then the parties can expect a certificate within the next few days with effect from today.

PN123

That certificate would in accordance with the normal approach identify the various clauses about which clarification has been sought but your responses provided to me on 21 November and the advice provided today would stand in its own right. If I wasn't able to certify the agreement then I would set out the reasons for that and try to do whatever I could under the confines of the current Act to allow the parties to expedite the certification process. I would hope that I can have some conclusion reached in that matter within the next three or four days. I can't give you a guarantee on that respect. I will adjourn that matter on that basis.

<ADJOURNED INDEFINITELY [11.47AM]