C2005/5626, Transcript of Proceedings [2005] AIRCTrans 2617 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13757-1

COMMISSIONER DANGERFIELD

C2005/5626

CHUBB AUSTRALIA PTY LTD
AND
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5626)

ADELAIDE

9.42AM, WEDNESDAY, 14 DECEMBER 2005

PN1

MR A SHORT: I seek leave to appear for the company and with me is
MS D PRIESTLY, the HR Manager SAMT of Chubb Australia,

PN2

MR J SPRECKLEY: I appear on behalf of the Liquor, Hospitality and Miscellaneous Union. Commissioner, I have a preliminary matter in relation to section 42 of the Workplace Relations Act 1996 in relation to the representation of the parties before the Commission which I need to place on the record at the outset of the proceedings, if the Commission pleases. Commissioner, the union has attempted to obtain legal representation ourselves for this particular matter given the seriousness of the orders that are sought and to apply to our members. We have been unable at this stage to attain legal representation for these proceedings today.

PN3

We will have the ability to talk quite late this afternoon to our legal representative who is also available for a substantial part of tomorrow. I raise that at the outset on the basis that there may need to be some consideration given to the union at appropriate times for us to be able to seek that legal representation, however we're not making a submission this morning that the matter not proceed on that basis. I just wish to raise that with the Commission. In relation to the operation of section 42, a party may be represented by counsel, solicitor or agent by leave of the Commission and with consent of all parties under section 42(3)(a) of the Act and then there's other provisions in relation to section 42(3)(b) and (c).

PN4

I place on the record, sir, that we do not withhold consent in relation to section 42(3)(a) but we would ask the Commission to be mindful that we have ourselves been unable to attain legal representation and we would like the opportunity to be able to do so should this matter proceed further beyond this morning. If the Commission pleases.

PN5

THE COMMISSIONER: Yes, thanks, Mr Spreckley. I note that and I'm not quite sure what the status of this particular matter is. Perhaps we will find out from Mr Short in a moment.

PN6

MR SPRECKLEY: Yes, sir. Sir, there are a few other preliminary matters that I wish to raise in relation to section 127, the application in relation to 127. I had a brief conversation with Mr Short this morning and on that basis I think it might be that I hold off those preliminary matters in relation to the 127 but again I would flag to the Commission that should that 127 application proceed further this morning to hearing I think it would be of benefit and useful to the tribunal and all the parties if I raise those preliminary matters in relation of Mr Short proceeding as they are matters that might end up with that application being struck out, or at least a number of the issues narrowed down to the extent that we knew exactly what the arguments would need to be ventilated, sir.

PN7

The other preliminary matter and I'm sure Mr Short will have something to say about that I would hope early on in what he has to say, is that I have received also another application just this morning that we've been unable to see so naturally we'd have great difficulties in having anything to say about that. We've not been served other than it being foreshadowed this morning. If the Commission pleases.

PN8

THE COMMISSIONER: Thanks, Mr Spreckley. I think what that means,
Mr Short, is that leave granted in respect of this present matter, this present 127 matter, whilst noting Mr Spreckley's comments and just seeing where we're headed.

PN9

MR SHORT: Yes. Well, perhaps if I outline our position then we can, as you say, see where we're headed.

PN10

THE COMMISSIONER: Yes.

PN11

MR SHORT: Commissioner, I can say that I'm newly instructed in the matter and on having the opportunity to consider the papers last night it became apparent to me having regard to the seriousness of the intended industrial action than an appropriate course would be an application under section 170MW in relation to suspension of the bargaining period. To outline, in this matter, sir, you have before you presently a section 127 application dated 23 November and that relates to a notice of initiation of bargaining period 7260 of 2005. If you don't have that, sir, I'll hand up a copy and to Mr Spreckley and also a notice of intended action dated 12 December 2005.

PN12

THE COMMISSIONER: Yes. I'm just wanting to make sure that the documents I've got here, I just want to make sure they're the same.

PN13

MR SHORT: Yes.

PN14

THE COMMISSIONER: They're presumably talking about the same things. I've got a notice of initiation of bargaining period which is BP1443 of 2005.

PN15

MR SHORT: That is an earlier notice, sir, and it is not the one which is relied upon for the intended action. So you can put that to one side, sir.

PN16

THE COMMISSIONER: So that's an earlier one.

PN17

MR SHORT: That is an earlier one.

PN18

THE COMMISSIONER: And that was dated June 2005.

PN19

MR SHORT: That's correct. You're quite right, sir.

PN20

THE COMMISSIONER: So this new one - - -

PN21

MR SHORT: I think it's dated 25 November. I can't quite be sure if it's 25 or 20 but it's certainly accompanied by a letter dated 25 November.

PN22

THE COMMISSIONER: Yes.

PN23

MR SHORT: And that is the bargaining period 7260 of 2005.

PN24

THE COMMISSIONER: Just hang on a tick. I will make a note of that. There is in the letter, 7260 of 2005.

PN25

MR SHORT: Yes.

PN26

THE COMMISSIONER: Right, thanks.

PN27

MR SHORT: And that is the notice that is relied upon in relation to the intended action, Commissioner.

PN28

THE COMMISSIONER: Yes.

PN29

MR SHORT: If I can take you to the letter of 12 December 2005 you will see that makes it clear that it's 7260 of 2005 bargaining period that is relied upon.

PN30

THE COMMISSIONER: Yes. Yes, I note that.

PN31

MR SHORT: And you will also see, Commissioner, that the intended action involves a total cessation of work at Adelaide airport, both domestic and international for nominated times, on this Friday, 16 December and on Monday, 19 December. You will see that the total cessation of work will operate from 5.30 to 7.30 Friday, 16 December and from 2.30 to 4.30 in the afternoon on
16 December, then again on Monday, 19 December, from 5.30 to 7.30 in the morning and 2.30 to 4.30 in the afternoon.

PN32

THE COMMISSIONER: Yes.

PN33

MR SHORT: The background, sir, is, as I believe you're aware from an earlier hearing, that the parties have been conducting negotiations in relation to a proposed enterprise agreement. The current enterprise agreement reached its nominal expiry dated as I understand it on 3 November 2005. The contract under which the employer conducts the security operations comes up again in April. The company has a very real concern about the commercial viability of the enterprise agreement. It sees no value in entering into a non commercial agreement which will have an inevitable consequence that the contract will be lost because any other tenderer will be cheaper.

PN34

It also has a very real concern about he intended industrial action coming out of such a close time to the renewal of the contract and the adverse impact that it fears may flow from that. It won't be able to provide the contractor for security and on my instructions that would entitle the operator to terminate the contract. But at the very least it will do no good in relation to enhancing the company's prospects of winning the contract. The section 127 notice is live. The 170MW is a very rea and relevant provision in relation to these proposed conduct.

PN35

On my instructions, security operations are essential to the movement of passengers and baggage at the domestic and international airport. There are some 165 security operators. You're aware of the sensitivity, Commissioner, of the threat of terrorism these days and the increased security steps that have been taken at all airports and for very real reasons because there is a genuine threat to passengers in the community in relation to terrorism. Without the security operators working no-one can be processed through the airport, no flights will go out.

PN36

These security operators also ensure that there are what are called sterile areas which need to be security checked and kept sterile so people can't just go in and out and security operators need to be there to ensure that that secure state is maintained. That won't happen because they won't be working. This stoppage is of course going to be known if it goes ahead. It's going to be made known to the community very shortly. If anyone wanted to pose a threat to security that's the time to do it. The impact on passengers will be that thousands of people will not get their flights when they expect to.

PN37

I'm instructed that some 6000 departures will be impacted, that's passengers, that's from Adelaide, but the planes that are delayed here because they don't go are meant to take passengers somewhere else once they get to Sydney or Melbourne or Brisbane and they won't because they'll be stuck here in Adelaide. So 6000 in Adelaide, thousands more departures around Australia. I'm instructed that overnight there's a full apron of planes at the domestic terminal and as a consequence of that there's very limited room for arrivals, so the planes that would be coming here will also be delayed because there won't be room for them on the apron. So thousands more I'm instructed passengers will be impacted elsewhere because their planes won't come to Adelaide and then won't fly on to wherever they're supposed to go thereafter on time.

PN38

That means that people who expect to get to their business appointments and conduct transactions won't get there. People who have arranged interstate medical appointment won't get there. People who have arranged their holidays with connecting flights won't get there and there will be a very real threat to security, not only during the two hour stoppage but also after that there then need to be checks carried out to ensure that the area is sterile and until that is done no-one can be processed. So it's not simply a two hour stoppage and then the passengers start going, it's two hours plus check the secured areas, recheck the machines, then you start processing.

PN39

On my instructions there will be queuing out of the airport. They will be hostile and aggressive and it will be operators and airport staff who will bear the brunt of that and that also, although to a lesser degree I would suggest bearing in mind the potential consequences, would raise threat to security and health and welfare.

PN40

MR SPRECKLEY: Commissioner, might I just be heard on a point .....
Mr Short. I have a concern with the extent to which Mr Short is making those submissions from the bar table because it may well be that they need to be made all over again. I did raise earlier that there were some preliminary matters that I thought ought to be addressed and considered prior to Mr Short moving into submissions per se and - - -

PN41

THE COMMISSIONER: I took his comments to be, I mean this isn't evidence, Mr Spreckley.

PN42

MR SHORT: No.

PN43

THE COMMISSIONER: This is just context I suppose, that's all I took it to mean.

PN44

MR SPRECKLEY: I must say, based on my conversation with Mr Short this morning I anticipated there'd be some procedural issue raised by Mr Short rather than extensive submissions from the bar table about disputed or controversial areas of facts that might well be. Now, if it's the case that the preliminary matters that I raised in relation to the 127 order either resulted in that 127 order being dismissed or being unable to be heard, or narrowed to the extent that the range of issues that need to be discussed or ventilated are narrow, it might be that a range of material that Mr Short is describing don't need to be raised at this stage, they're raised at a later juncture or perhaps not raised at all.

PN45

The second matter is that the kind of suggestions that Mr Short is advancing appear to me to be dealing partly with matters that might arise in an application to suspend or terminate the bargaining period which is an application which hasn't been filed, hasn't been served, is not even before the Commission. We've not had the ability obviously to get any advice, instructions, legal advise or otherwise with it. So my concern is that where Mr Short is heading seems to be moving into too many areas of controversial facts that we might need to hear twice over and that he's taking you to areas that would appear possibly or certainly beyond issues in relation to an application to suspend a bargaining period which is not before the Commission and may well be beyond the application in relation to 127 of which those preliminary issues I have not yet ventilated, sir. If the Commission pleases.

PN46

THE COMMISSIONER: Yes. Perhaps if you could clarify that, Mr Short.

PN47

MR SHORT: Certainly.

PN48

THE COMMISSIONER: I get the general context.

PN49

MR SHORT: Yes, and having regard to those matters, sir, I am instructed to make application to suspend the bargaining period. I have provided to
Mr Spreckley and to you an application in that regard and it hasn't been filed because it's only been prepared this morning and I seek to proceed with an application to suspend the bargaining period having regard to the gravity of the consequences of the intended action. Now, I apologise for the delay. I'm newly instructed but this is an appropriate matter to have dealt with by the Commission d to have dealt with in as timely a fashion as we can.

PN50

THE COMMISSIONER: And what about the 127 application?

PN51

MR SHORT: I'm instructed to proceed with the 127 application as well. I will have some further things to say before few have any hearing which may set
Mr Spreckley's mind at rest but they may not, but perhaps if I say them we can see where we take them. In relation to the application under section 170MW, sir, you will see that that identifies the bargaining period 7260 of 2005 but it seeks to suspend all bargaining periods by the LHMU against Chubb until further order. In the second paragraph of the application, sir, this is not the numbered paragraph, this is from the top, he talks of an order to suspend or terminate. I seek to delete the words "or terminate". At this stage simply seek a suspension.

PN52

I recognise that the Commission if it sees it appropriate has the power to terminate of its own motion but we seek suspension and you'll see that in relation to the grounds that I've identified the two bargaining periods that have been instituted set out that we've been unable to reach agreement on a certified agreement. I've referred to the notice of intended industrial action which has been placed before you and I've referred to the threat that that industrial action creates and you will see that at paragraph 4. That, sir, would if made out enliven your powers under section 170MW.

PN53

THE COMMISSIONER: Well, let me just explain to the parties what would need to take place. This application first of all needs to be filed, it then goes to Melbourne, it goes to the relevant panel head and the head of the relevant panel who at the moment is Senior Deputy President Lacy, he then assigns it. So there's a process we've got to go through, filing here in Adelaide, they receive it in Melbourne, it gets to the SDPs office, he then assigns it, all that takes some hours. One would imagine that these things would be assigned within a matter of probably three to four or five hours but it would take that sort of time. I presume it would be assigned to me given that I've got the 127 application but I shouldn't really presume anything, it could be assigned to anybody. I mean there are a few things that have got to fall into place, Mr Short.

PN54

MR SHORT: I can understand all of that, Commissioner. What I was then moving onto to say, well all right, we recognise this is the situation that is coming up. It's clear that the union seeks an agreement. We also seek an agreement, no doubt about that. It's in a way fortuitous, the managing director of the company is here. He's in Adelaide and he's here in this court room and he is willing to enter into negotiations under the auspices of the Commission. That would be on the basis that this intended action is lifted, recognising however that the union would have the ability if negotiations fail to serve further notices of intended industrial action, just as the company would have the ability to file, either continue with present applications or file further applications in respect of any intended action in the future.

PN55

But in effect that the parties with your assistance conduct negotiations to see if they can actually resolve their substantive differences and that I would hope would be the best use of everyone's time and resources rather than worrying about the 127s and the 170MW, or any other barneys that we can find between us.

PN56

THE COMMISSIONER: So are you suggesting in effect that we go into conference on the 127 application?

PN57

MR SHORT: I think we go into conference on trying to get an enterprise agreement. I guess the formal vehicle would have to be the 127 because that's the application that's presently filed.

PN58

THE COMMISSIONER: Yes, that's what I'm saying. The formal vehicle is the 127 application which quite often one begins to hear and then you drift into conference anyway to try to resolve the thing, is that what you're suggesting in regard to that?

PN59

MR SHORT: I would suggest we go into conference and see if we can progress our discussions.

PN60

THE COMMISSIONER: Yes, and in the meantime you would be taking steps to file the 170MW.

PN61

MR SHORT: The one 127 I will ask Ms Priestly to head to the registry immediately we get an appropriate break, file it and mention to the registry where we are and how we'd like to progress it.

PN62

THE COMMISSIONER: Okay.

PN63

MR SHORT: Does that seem - that I hope is a sensible course.

PN64

THE COMMISSIONER: Yes, I understand where you're at. Mr Spreckley, does that clarify some things?

PN65

MR SPRECKLEY: It probably clarifies a number of things but the course suggested by Mr Short and raised by the Commissioner there'd be conciliation in relation to the 127 order, conducted under the umbrella 127 order I can say would not be acceptable to the LHMU. As far as our position is concerned is that 127 order would need to be considered as to whether or not it's even a valid application. They are amongst the preliminary matters that I have foreshadowed this morning so we would not ..... prepared to conciliate under the umbrella of that particular application.

PN66

Similarly we would not be prepared to conciliate under an application should it be filed in relation to the application to suspend or terminate the bargaining period until such time as it may be filed. I will need to discuss with our representatives and officials of our union who are also present here today in relation to their attitude towards conciliation conducted by the Commission under section 170NA of the Act which allows the parties to conciliate without applications such as apparently faced by members on the 127 or suspension of the bargaining period. I do not say now, sir, that we are prepared to do that. I will need to discuss that matter with our officials and possibly also as I foreshadowed earlier, we may need to get some legal advice.

PN67

But were we to enter into conciliation that would be the provision that we would consider, not under either of those two applications that Chubb Pty have - or one that's afoot that we say is probably invalid and the other one which has not yet been filed.

PN68

THE COMMISSIONER: Mr Short, what do you say about?

PN69

MR SHORT: What I have raised is the concept of conciliation with the Commission's assistance and how that comes about does not fuss me, but the qualifier we put on that is that we would not negotiate with the industrial action. The present intended action still being live, we would be prepared to conciliate with that intended action being lift but recognising that further intended action if negotiations were unsuccessful would be available to the union. Does that make sense?

PN70

THE COMMISSIONER: Yes, I think what you're saying is that if the union agree to lift the threat of action for, is it Friday and Monday?

PN71

MR SHORT: For Friday and Monday.

PN72

THE COMMISSIONER: Friday and Monday, the union agree to do that and you would be proposing to enter into discussions?

PN73

MR SHORT: Yes, and we would do that - - -

PN74

THE COMMISSIONER: Conciliation under the chairmanship of the Commission.

PN75

MR SHORT: Yes.

PN76

THE COMMISSIONER: And you would do that under whatever vehicle would be necessary.

PN77

MR SHORT: Yes, and we take advantage of the opportunity of the managing director's presence in Adelaide today to try and advance those discussions.

PN78

THE COMMISSIONER: Yes. And presumably, Mr Spreckley, you will tell me you will need to talk to your people about all of that?

PN79

MR SPRECKLEY: That's correct, sir.

PN80

THE COMMISSIONER: Yes.

PN81

MR SPRECKLEY: I should also, because I'm presuming that the Commission will provide an opportunity for us to have that discussion, I should also mention before we do have that break if that's convenient to the Commission, that it's probably unlikely in a similar way as been articulated by Mr Short on behalf of Chubb that it's probably unlikely that we would conciliate or negotiate with 127 orders and section 170MW orders hanging out over our head either, sir, so it may well be - - -

PN82

THE COMMISSIONER: I think both parties have got things hanging over their head at the moment. The employer has got industrial action on Friday and Monday hanging over their head and you've got a possible 170MW and a 127 hanging there.

PN83

MR SPRECKLEY: That's correct.

PN84

THE COMMISSIONER: So it's a case of both parties have things hanging over their head at the moment. I think what's being proposed by the employer is look, presumably, if the action is lifted for Friday and Monday you won't be wanting to proceed with 127 or 170MW even though what you're saying is you're going to file the 170MW anyway, you're going to file it but you won't be seeking to go on.

PN85

MR SHORT: But if that's a difficulty what I think we could do to address everyone's concerns, if we don't want to negotiate with threats hanging over our hands, if the applications, if the intended action and the 127 and the 170MW go off the table, that's not to say that if negotiations fail I suspect that they can't institute a new notice of intended action and we can't institute a new 127 and a new 170MW.

PN86

THE COMMISSIONER: Yes.

PN87

MR SHORT: But we will negotiate in the spirit of good faith - - -

PN88

THE COMMISSIONER: Yes. Are you in effect proposing that instead of one party moving before the other that contemporaneously you would withdraw your 127 and 170MW and the union would precisely at the same time say, well look, all bets off for Friday and Monday, is that what you're saying?

PN89

MR SHORT: That sounds a sensible course to me and then we both know
that - - -

PN90

THE COMMISSIONER: But how that is actually done doesn't matter but that's really what you're saying, at a certain contemporaneous point you say all bets off from both sides, we're back to square 1, let's deal with this and if we can't resolve it in the next 24/48 hours or whatever, well, then we can reinitiate bargaining periods and whatever.

PN91

MR SHORT: Yes.

PN92

MR SPRECKLEY: Commissioner, I would need some time to consider what's being put.

PN93

THE COMMISSIONER: All right. Well look, 10.30, Mr Spreckley, that sort of time frame or you want - - -

PN94

MR SPRECKLEY: I think perhaps a little bit longer, sir.

PN95

THE COMMISSIONER: You say, quarter to?

PN96

MR SPRECKLEY: Well, quarter to, Commissioner, and we can organise to contact your associate.

PN97

THE COMMISSIONER: All right. Well, not before quarter to anyway but see how we go. If I can just indicate to the parties that there are some time constraints that I've got as well. Now, I will need to clear the decks and whatever. I do have another matter this afternoon which I think I can clear and in fact I will clear. I have a full morning tomorrow morning but again given the importance of this issue, if need be I can clear tomorrow morning as well. I have a matter on tomorrow afternoon that cannot be cleared. That will have to go ahead and for that matter on Friday morning as well I'm involved in a Full Bench issue as well, so Friday is not looking good.

PN98

But I can clear the decks for today and for tomorrow and that's probably all I can do at this stage. I just indicate that and through my associate I will be looking into the possibility of that now. You keep in contact with my associate or he'll keep in contact with you and we'll resume at around about a quarter to or not before.
Mr Short?

PN99

MR SHORT: Commissioner, we'll get to the registry the 170MW, recognising that we may be quickly getting back to the registry and - - -

PN100

THE COMMISSIONER: To withdraw it.

PN101

MR SHORT: But I think that's probably the appropriate course for the moment.

PN102

THE COMMISSIONER: Yes, I think we understand both where we're at. Yes, all right. We will adjourn.

<SHORT ADJOURNMENT [10.12AM]
<RESUMED [10.57AM]

PN103

THE COMMISSIONER: Mr Spreckley.

PN104

MR SPRECKLEY: Yes, thank you, Commissioner. Commissioner, before the Commission broke I indicated I would consider some propositions that were advanced by Mr Short on behalf of Chubb and I've now had the opportunity to discuss those issues with officials and delegates of our union. I can advise the Commission that we would be in a position to be able to agree to a number of matters. Those matters presumably taken as a whole, if I could advance that in the first instance, Commissioner.

PN105

THE COMMISSIONER: Yes.

PN106

MR SPRECKLEY: (1), that the LHMU would withdraw the three days notice of the intent to take industrial action and that particular industrial action as identified in the notice would not proceed. Also, that the company, Chubb, withdraw their application pursuant to section 127 of the Act and their very recent application under section 170MW of the Act. The consequences of those previous two scenarios, sir, would be that if our members wish to avail themselves or exercise their rights to take protected industrial action in relation to the relevant bargaining period they would then be required under the Act to give three working days notice.

PN107

In respect of the employer, were they to seek orders under section 127 of the Act they would need to file a fresh application and similarly with a fresh application for section 170MW. We suggest that there be advice given to the employees, relevant employees in the form agreed between the parties of those actions by both the union and the company. In relation to the proposition about availing ourselves of the opportunity for further discussions and negotiations we certainly welcome that and believe that ultimately that would the best solution and the way forward to conclude an agreement and the bargaining period and are prepared and keen to do that.

PN108

In relation to the particular matters raised in relation to the powers of the Commission to conciliate, we would see in the first instance that direct discussions between the parties would be a beneficial course and the course most favoured by the union. If there needs to be an umbrella or it's desirable that there be an umbrella of this matter being before the Commission, then in our opinion that would be under section 170NA of the Act and section 102(2)(b) of the Act. Section 170NA provides the Commission with conciliation in relation to such matters as the making of an agreement and section 102 - sorry 170NA(1) provides that the Commission has the conciliation powers in relation to a matter arising in this part that it would have under part VI in relation to the matter as if it were a dispute, but in fact it's the making of an agreement.

PN109

Section 102(2)(b), Commissioner, provides that from the point of view certainly, if you like, a preliminary step which is what in fact this would be in relation under section 170NA of the Act for conciliation, would be that the Commission under section 102(2)(b) arrange for the parties or the representatives to confer amongst themselves at conferences at which the member is not present and it's the position of the union that if the parties felt that there was need to request the Commission to perhaps go further and be involved in a conference under section 102(2)(a) where the presiding member is present then the Commission could be notified accordingly.

PN110

But the union does believe that there is certainly benefit and prospects of concluding agreement by direct discussion between the parties and there's some administrative arrangement that hang off that that we don't need to trouble the Commission with but just on the basis of who gets there and how we get there and issues like that, sir. So that is the union's response to the matters that were ventilated before the break, sir. If the Commission pleases.

PN111

THE COMMISSIONER: Yes. Mr Short.

PN112

MR SHORT: Look, it's fleeting but there's if you like a preparedness to move forward without either of us needing to embark on litigation or industrial action. A difference between us and I've discussed it with Mr Spreckley is our perspective is that the parties are deadlocked and I'm instructed that the meeting on Friday, the observations made on behalf of the union that we're at a stalemate and from our perspective we would see it as beneficial to have a circuit breaker to have your assistance to try and progress the discussions and move beyond the stalemate.

PN113

Our theory is that if we go back to direct discussions we won't get anywhere. Now, without wanting to carry on, Commissioner, you're very skilled at assisting parties to resolve their differences and whether it be as a reality check or assisting the parties to progress their issues we would see your involvement as useful and we wouldn't want to see it delayed. I add to that that the managing director is here today and that's fortuitous but he's not here tomorrow and we don't want to lose that opportunity which is available to us. My suggestion, sir, would be that the parties enter into discussions with your assistance and that as a first step, this is a suggestion, as a first step that you would meet with the parties separately to obtain their perspectives on the issues that confront them and that would enable you to best assist the parties to try and resolve their differences.

PN114

So we're not seeking to impose anything by way of outcome, we're just looking for what's the best way forward. We have already tried on a number of occasions meeting directly and that hasn't got us to an agreement, so we seek your assistance. If we could do that then we would agree on the basis that the union's pulling the intended action we would pull the 170MW and the 127. They're not the end game for us, just as the intended action is not the end game for the union. We want to resolve our differences. The best way forward I genuinely suggest is with your assistance.

PN115

THE COMMISSIONER: Do we need separate applications under NA, 170NA?

PN116

MR SHORT: I don't believe so, sir, particularly in a situation where both parties are saying we want to have conciliation and I think there's an agreement that we want to have conciliation. We're standing here today saying we both want the Commission's assistance. We have got a slight variation between us about whether we should talk among ourselves first or whether we should involve you now. Our preference is to involve you now, but there's a common ground that we both want conciliation under section 170NA.

PN117

THE COMMISSIONER: Yes, and therefore we don't need to formalise that?

PN118

MR SHORT: We don't need to formalise it because we're in agreement.

PN119

THE COMMISSIONER: No, I think that's correct. Sometimes the Commission gets application under 170NA and separate files are made up but I don't think that's necessary where both parties agree. I think that can be done informally.

PN120

MR SPRECKLEY: I think that's correct, sir.

PN121

MR SHORT: Yes.

PN122

THE COMMISSIONER: Okay. Well, then the only issue then seems to be - well, there are two issues I suppose. (1), the parties need to take steps, and I don't know how you're going to advise the employees, but you need to take steps to withdraw your applications and - - -

PN123

MR SHORT: And can I state now that on the basis that the notice of intended action is withdrawn and it will be subject to just finalising I think the process by which we move forward and you may have some comments on that and indeed you may wish to speak to the parties separately in order to form a view about what's the proper way forward, I don't think Mr Spreckley would oppose that course, that you might speak to the parties separately and then come back with a recommendation about the best way forward. That might address both our issues. But we would then withdraw and we say it on transcript, we withdraw our two applications.

PN124

I should for the record say that the section 170MW application has been filed during the adjournment and a copy has been provided to Mr Spreckley and to your associate.

PN125

THE COMMISSIONER: Yes.

PN126

MR SHORT: So if that's seen as a sensible way forward?

PN127

THE COMMISSIONER: It will be one of the shortest lived MW applications I know of. It didn't last an hour.

PN128

MR SHORT: I said that to Mr Spreckley before you came in.

PN129

THE COMMISSIONER: Yes.

PN130

MR SHORT: But the quickest end to one of my applications but a good one.

PN131

THE COMMISSIONER: All right. Well, then I will assume that the parties can coordinate between themselves. I mean you have indicated that those applications are withdrawn forthwith as long as the notice of industrial action is withdrawn.

PN132

MR SHORT: That is presently subject to sorting out I think the way forward.

PN133

THE COMMISSIONER: Yes.

PN134

MR SHORT: But I think my way forward can be accommodated by
Mr Spreckley on the basis that you can speak to the parties separately to form a view about what you would recommend as the best way forward.

PN135

THE COMMISSIONER: All right. Mr Spreckley, what do you say about that?

PN136

MR SPRECKLEY: Just one short comment, sir, and that is on the basis that we wouldn't object to the proposition that's been put by Mr Short that the Commission speak to each party separately. I should say in relation to whether or not the Commission might be minded to make a recommendation or not that if the parties reach some agreement then there would be no need or requirement for the Commission to issue a recommendation on the matter.

PN137

MR SHORT: I agree.

PN138

MR SPRECKLEY: And if we agree ourselves then we would prefer that course, if the Commission pleases. I think the real issue seems to be whether or not the Commission chairs a conference directly or arranges for a private conference between the parties.

PN139

THE COMMISSIONER: Yes, all right. Well look, what I'm going to suggest is that we'll go off the record. I think it would be useful to have just a brief discussion with each party first. It makes no difference to me who I speak to first, I don't have a preference, one party or the other.

PN140

MR SHORT: We have had our say, why not let John have his say and then we'll meet with you.

PN141

THE COMMISSIONER: Okay. I'm happy to meet with the union first. It should be not too long.

PN142

MR SHORT: That’s all right, we will pop out.

PN143

THE COMMISSIONER: We will go off record and I think we can say we probably won't need then to go back on the record again.

PN144

MR SHORT: Well, perhaps ..... application so John can formally withdraw his intended action so we've got that out of the way.

PN145

THE COMMISSIONER: All right. We are going back on record just so that we can formally indicate that the action that's been taken by each side, Mr Spreckley.

PN146

MR SHORT: Is withdrawn, okay. So we will on record withdraw our 127 and 170MW. You will on record withdraw your notice of intended action and we'll then do our discussions off record with Commissioner Dangerfield and try and move it forward.

PN147

THE COMMISSIONER: About how to proceed, yes.

PN148

MR SPRECKLEY: Yes, yes, that's fine.

PN149

THE COMMISSIONER: Right. So with that Mr Spreckley indicates his agreement to that, so with those undertakings on the record we will now go off the record and enter into some discussions.

<NO FURTHER PROCEEDINGS RECORDED