C2004/6811, Transcript of Proceedings [2006] AIRCTrans 1135 (10 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15856-1

DEPUTY PRESIDENT LEARY

C2004/6811

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION-TASMANIAN BRANCH
AND
DERWENT VALLEY COUNCIL
s.99 - Notification of an industrial dispute
(C2004/6811)

HOBART

FRIDAY, 29 SEPTEMBER 2006

THE FOLLOWING PROCEEDINGS WERE TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS

PN1

MR O'BRIEN: - - - business that was being transmitted and the details associated with it, and whether the contract should say that it was a transmission of business or give information concerning whether it was a transmission of business or give the information concerning whether it was a transmission of business and leave in no doubt. Now, the contract will be for the operation and the maintenance of a wastewater treatment plant called Turriff Lodge. Now, the treatment plant remains the property of Derwent Valley Council, but the employees who operate the treatment plant who are Derwent Valley Council employees will continue to do so but as employees of Hobart Regional Water Authority.

PN2

Now, this has been going on for some 20 months and the employees have in actual fact been under the control for the last 12 months of Hobart Water even though they remain employees of Derwent Valley Council. At the last hearing I asked for a range of questions to be answered. I provided written questions which will possibly be on the Commission's file. I have received a response, but sadly there's no real link in those responses that we can really determine as to whether there's a bona fide transmission of business taking place, and at that particular time we were refused any information from the documentation. So we didn't know when the contract was going to be signed, we didn't know what was in the contract, and it really wasn't a heck of a lot of help.

PN3

On 20 September - now, at this point, Deputy President, I think I'd better say that I'm going to be making a formal application later, and the documents I hand up I would like marked if possible. I have asked the other side before the hearing as to what sort of ground rules they wanted to employ concerning what will essentially be a request for an arbitration.

PN4

THE DEPUTY PRESIDENT: On what?

PN5

MR O'BRIEN: I'll get to that. It's concerning the termination of employment of the employees until certain information is available. I'll give you a bit more information on that. But there were some directions which I issued, I wrote to you about and I circulated them to the parties, the Derwent Valley Council and the local branch, and they had been received and they're aware of. Now, so the documents I hand up which I would like marked would be the response from Derwent Valley Council, and that's 6 September 2006.

PN6

THE DEPUTY PRESIDENT: That's the response to the questions that you raised previously?

PN7

MR O'BRIEN: That's correct, yes.

EXHIBIT #A1 RESPONSE FROM DERWENT VALLEY COUNCIL

PN8

MR O'BRIEN: Now, I'll just give an overview. Most of the suggestions that the ASU made concerning the suggestions that we should get some assistance from the council with Hobart Water concerning enterprise bargaining and the right to represent employees within the Hobart Water Authority. We though there may be some assistance we could get in the contract that was going to be signed. Most of those suggestions were rejected.

PN9

THE DEPUTY PRESIDENT: But how could Derwent Valley Council give you commitments for the employees of Hobart Water?

PN10

MR O'BRIEN: Well, the way I saw it was, there was an ability for Derwent Valley Council to impose certain conditions on Hobart Water concerning the employment of the employees who were to transfer, they had the opportunity to do that. They had the opportunity - - -

PN11

THE DEPUTY PRESIDENT: That's pretty ambitious.

PN12

MR O'BRIEN: Well, there was a possibility that we could make some ground with the council on that one.

PN13

THE DEPUTY PRESIDENT: But I don't think that you could bind them legally to anything if they're not their employees, that's the point. Presuming - and I don't know what the circumstances are, but presuming these people become employees of Hobart Water, Derwent Valley has got nothing to do with their employment relationship then. So how do you - - -

PN14

MR O'BRIEN: No. But they are collaborating with Hobart Water concerning
the - - -

PN15

THE DEPUTY PRESIDENT: Define collaborating. I don't quite know what you mean by that word.

PN16

MR O'BRIEN: What I mean is, there's been a lot of discussions go on concerning the operation of a treatment plant and the details of the contract. Now, they can do such things - - -

PN17

THE DEPUTY PRESIDENT: Of the commercial contract?

PN18

MR O'BRIEN: Of the commercial contract. And they can do such things as, when it comes to transferring accrued benefits they can make provisions in the contract concerning accrued benefits.

PN19

THE DEPUTY PRESIDENT: Well, I think they've done that haven't they?

PN20

MR O'BRIEN: They have done something towards that, but I'll get back to that too. I've got more points I'd like to make on that. So we're still in the dark at this stage. We didn't know what the situation was with regard to contract or the proposed transfer date. On 20 September - this is the next document I'd like to have marked if I could. That's a facsimile message from Hobart Water to Sean Kelly, who is the secretary of the ASU here.

EXHIBIT #A2 FAX FROM HOBART WATER TO SEAN KELLY

PN21

MR O'BRIEN: And that particular notice was, it refers to an article in the Mercury, Tuesday, regarding the Derwent Valley Council's new arrangement in water and wastewater management. The council formally agreed to the management of services. The contract is still to be finalised by lawyers. Steve Mackey is on holidays, so is Danny Sutton, Hobart Water. Both are dealing with the contract arrangements. I checked with the human resources officer at Derwent Valley and they advised that the letters to the employees listing leave entitlements have been sent, and there's a photocopy of what was in the Mercury. So we're starting to get a little bit of information by indirect means and direct means.

PN22

THE DEPUTY PRESIDENT: You don't want to ever rely on anything in the Mercury.

PN23

MR O'BRIEN: No, well, I'm not. But I then did contact Mr Mackey, who had been on holidays, or had a discussion with him, and I told him on the telephone that we wanted to be sure of the instruments that applied at Hobart Water after the transmission of business, and that required some information of a definite nature as to whether or not there was a transmission of business. Now, Mr Mackey - and I informed you of that in this letter - said that he would provide that information, and so I thought now there's every possibility that it won't be adequate, and I found out also that it looked like the termination of the employees was to be on 1 October. Now, we're now facing - - -

PN24

THE DEPUTY PRESIDENT: Okay, so you've got the date.

PN25

MR O'BRIEN: 1 October is the date that I have been given.

PN26

THE DEPUTY PRESIDENT: Which is next week I think isn't it?

PN27

MR O'BRIEN: Sunday. In anticipation of us not getting that information I drafted directions for you today, which I'll speak to in a minute, but we do require that proof. Now, I'd like leave to - - -

PN28

THE DEPUTY PRESIDENT: So what proof are you asking the council to provide? And there's no one here from Hobart Water is there?

PN29

MR O'BRIEN: No, there's not, no. The proof is, that sufficient proof that we can rely upon that there being a legal transmission of business. Now, only they can do that, your Honour.

PN30

THE DEPUTY PRESIDENT: Only Derwent Valley?

PN31

MR O'BRIEN: Only Derwent Valley Council can do that. They are the ones with all the information, they know what's in the contract and they - - -

PN32

THE DEPUTY PRESIDENT: But all I'm asking, what sort of proof do you want? Do you want a letter or - - -

PN33

MR O'BRIEN: Documentary, documented proof. And also the type of proof I want - - -

PN34

THE DEPUTY PRESIDENT: What's documented proof?

PN35

MR O'BRIEN: I would say a legal opinion from their lawyers.

PN36

THE DEPUTY PRESIDENT: Why is there such a misunderstanding about all this?

PN37

MR O'BRIEN: Because we've got no information concerning anything that you could rely upon.

PN38

THE DEPUTY PRESIDENT: So what have the employees been given? I think this email said that they had been given - talking about listing leave entitlements.

PN39

MR O'BRIEN: That's right, they have, up until 31 August.

PN40

THE DEPUTY PRESIDENT: And what was the purpose of that?

PN41

MR O'BRIEN: The purpose would be I should imagine for accrued benefits that would be transferred across.

PN42

THE DEPUTY PRESIDENT: Transferred across, okay.

PN43

MR O'BRIEN: I've got no more information other than.

PN44

THE DEPUTY PRESIDENT: Right, so you don't know whether that - - -

PN45

MR O'BRIEN: So I'm surmising that. I do know the date was to 31 August. So it didn't really tell us - - -

PN46

THE DEPUTY PRESIDENT: So there's nothing much perhaps in it.

PN47

MR O'BRIEN: Yes, it didn't really tell us what the termination date was going to be at that stage. Now, your Honour, whilst you've got that letter in your hand with the directions I'd like leave just to amend it slightly. There's some word processing words that have dropped out. The other side, have you got a copy of the directions and the letter? I'll hand that up to you. Can that be marked too please, your Honour?

PN48

THE DEPUTY PRESIDENT: Your letter?

PN49

MR O'BRIEN: Yes, the letter and the directions.

EXHIBIT #A3 LETTER TO AIRC WITH ATTACHED DIRECTIONS DATED 26/09/2006

PN50

MR O'BRIEN: Thank you.

PN51

MR CURTIS: Should you notify that part of that has been amended by you?

PN52

MR O'BRIEN: Yes. Well, I'm about to amend it now, and I'll get you all to amend it as we go.

PN53

MR CURTIS: No, I'm talking about what's said to be an extract from the EBA with the underlining there.

PN54

MR O'BRIEN: Yes. Well, I'll also speak to that, yes. Yes, it is - it's not amended by us, there's nothing amended in the - - -

PN55

MR CURTIS: It's not actually underlined in the - - -

PN56

THE DEPUTY PRESIDENT: It's been highlighted by the union, it's not highlighted in the EBA, is that what's you're saying?

PN57

MR CURTIS: Yes.

PN58

MR O'BRIEN: Yes. No, that is my underlining. To avoid doubt, my underlining.

PN59

THE DEPUTY PRESIDENT: Okay. All right, so what's the - - -

PN60

MR O'BRIEN: Okay. The change that I wish to make to it - - -

PN61

THE DEPUTY PRESIDENT: It's 1A I presume?

PN62

MR O'BRIEN: It's in 1, and on the very bottom line the words that are missing, after Holloway, should be inserted in there, and transfer their employment. So that will read "Holloway and transfer their employment to Hobart Water."

PN63

THE DEPUTY PRESIDENT: Okay. And there needs to be some further - - -

PN64

MR O'BRIEN: Now, I met with Mr Mackey yesterday and Mr Mackey informed me that the contract would be signed either today or tomorrow, and that was on the 28th of the 9th, so we may have a signed contract, or we may not. Now, he said that that would be Hobart Water signing, he didn't say about Derwent Valley Council, and I omitted to ask him, so it would be good if we could get some clarification on that point.

PN65

THE DEPUTY PRESIDENT: Well, I gather it won't be Kingsborough Council. Two parties sign a contract don't they, so I take it it's Derwent Valley and Hobart Water?

PN66

MR O'BRIEN: It hasn't been signed though, that's what I'm getting at.

PN67

THE DEPUTY PRESIDENT: Has it been signed?

PN68

MR CURTIS: Well, when we get a chance to respond we'll tell you all of that.

PN69

MR O'BRIEN: Right. The extracts, certain extracts from the contract are given to me, and I asked the other side if they mind me handing those up, they have said no, so I'll hand that up, if we can mark that.

PN70

THE DEPUTY PRESIDENT: Okay, I'll mark the extracts from the contract, and note that they're strictly commercial in confidence.

EXHIBIT #A4 EXTRACTS FROM CONTRACT

PN71

MR O'BRIEN: Thanks, your Honour. Now, there's nothing in these documents that says there's a transmission of business under the Act, that's the first point. There's nothing there that gives you any real indication that it is a transmission of business. Clause 42 cross refers - it talks about a schedule 1 which lists the transferring employees. So the named employees are named there and they are the same employees who I've named in the directions. My opinion of the drafting, it's lacking in clarity and specificity and doesn't say, for example, how service is transferred and how it will be recognised.

PN72

It doesn't define what accrued benefits are, it doesn't give any detail of what accrued benefits are. It doesn't say what pay and conditions will apply upon transfer or what instruments will apply later. There's no indication as to what will happen afterwards and what the conditions of the employment will be. It doesn't give any indication at all regarding the service or redundancy, or provide any quantum or how it's applied. I'm just surprised. I think it's a very vague and ambiguous bit of drafting, and certainly employees don't have any - employees have got no access to this and it doesn't provide them anywhere rights apart from this ambiguous wording.

PN73

THE DEPUTY PRESIDENT: What's ambiguous about it? Are you talking about 42?

PN74

MR O'BRIEN: It talks about all accrued entitlements of each transferring employee. Well, what are the accrued entitlements? It doesn't list them, it doesn't say it's long service leave - - -

PN75

THE DEPUTY PRESIDENT: So it's detail you want rather than - - -

PN76

MR O'BRIEN: Details, yes, specificity. It doesn't give the details, whether it's longer service leave, whether it's sick leave. It could mean a whole range of things, and then there could be arguments about what it really does mean. But the employees don't have access to this. What rights do they have as a result of this that they can refer to?

PN77

THE DEPUTY PRESIDENT: So it's the detail of the accrued entitlements, that's one thing, yes.

PN78

MR O'BRIEN: The detail. Does accrued entitlements refer to service?

PN79

THE DEPUTY PRESIDENT: Well, we all know what it means I presume.

PN80

MR O'BRIEN: Well, I don't. I don't know what it means service. Does it mean service for the purposes of redundancy?

PN81

THE DEPUTY PRESIDENT: Well, presumably if it's a transmission of business and they're transferring, yes, their service counts for all purposes, there's no termination.

PN82

MR O'BRIEN: That's right. But if it's not a transmission of business.

PN83

THE DEPUTY PRESIDENT: If it's not a transmission of business it's termination, is that what you're saying?

PN84

MR O'BRIEN: If it's not a transmission of business, well, it's a transfer of employment against the employees' will.

PN85

THE DEPUTY PRESIDENT: All right. So that's a termination?

PN86

MR O'BRIEN: It's a termination of employment, yes. Now, I was not particularly enlightened by that and I didn't feel that our members were adequately protected by that. And after I had finished speaking with Mr Mackey I went to the treatment plant, and the employees were there for a meeting, and this document here had been presented previously to Mr Michael Swanton from the Australian Services Union. If I could have that one marked please, your Honour.

EXHIBIT #A5 DOCUMENT GIVEN TO MR SWANTON, ASU

PN87

MR O'BRIEN: I'll give you a copy of that down the other end there, A5. This lists the wishes of the employees in broad terms, being the right of representation by the ASU on their behalf, the recognition of qualification and skills with equivalent Hobart Water Classifications, and the accrued entitlements be moved over to Hobart Water with the process of transition or paid out on as an individual option.

PN88

THE DEPUTY PRESIDENT: So what were the accrued entitlements referred to there?

PN89

MR O'BRIEN: Well, the accrued entitlements there would be the same accrued entitlements which would be provided for within the award I would think and the enterprise agreement, and that's what they would think it referred to.

PN90

THE DEPUTY PRESIDENT: So there's a general understanding of what accrued entitlements are?

PN91

MR O'BRIEN: If the award and the agreement apply. If there's no award and agreement - - -

PN92

THE DEPUTY PRESIDENT: Well, they apply now.

PN93

MR O'BRIEN: Yes, that's right, yes.

PN94

THE DEPUTY PRESIDENT: So we're talking about currently.

PN95

MR O'BRIEN: That's right, exactly. Now, at the meeting I attended, I suppose the best way of describing that was that it was a sort of a boiling cauldron of issues, and there were issues of loss of overtime and changes in duties, jobs are changing, people are uncertain as to what's going to happen in the future, that employees have got a reduction, some have a reduction of disposable income due to loss of overtime and call out.

PN96

THE DEPUTY PRESIDENT: Who has all this come from?

PN97

MR O'BRIEN: This is from the employees yesterday.

PN98

THE DEPUTY PRESIDENT: Yes, but where has it come from, who has told them this?

PN99

MR O'BRIEN: This is them telling me.

PN100

THE DEPUTY PRESIDENT: Yes, but who has told them that all that's going to happen?

PN101

MR O'BRIEN: Well, what has happened, during the time that they have been working under the direction of Hobart Water these issues have emerged and these are the issues that they have sort of catalogued and given to me.

PN102

THE DEPUTY PRESIDENT: Over the last 12 months?

PN103

MR O'BRIEN: Over the last 12 months.

PN104

THE DEPUTY PRESIDENT: So what are they seeking, reinstatement of the prior 12 months?

PN105

MR O'BRIEN: What the employees are seeking is basically their conditions to remain as they were previously.

PN106

THE DEPUTY PRESIDENT: Twelve months ago?

PN107

MR O'BRIEN: Yes, and as they started to erode during this period.

PN108

THE DEPUTY PRESIDENT: Yes, okay.

PN109

MR O'BRIEN: They made it clear that they are not happy with the arrangement and they haven't consented to any transfer of employment. One particular employee made it very clear that he wants out.

PN110

THE DEPUTY PRESIDENT: Well, has he resigned?

PN111

MR O'BRIEN: No. But what he has done is he is presenting a letter which I have, I understand that as a result of the meeting yesterday he has decided to go ahead with that. That doesn't need to be marked, but it can be handed to the other end as well. But he wants representation of an individual nature by the union and that will be dealt with by the union and may be the subject of a separate notification. So in summary, the dispute now involves the impending termination of eight employees on 1 October, that's next Sunday. It now involves the employees being transferred to Hobart Water Authority as employees of that authority as of next Sunday against their will and without their consent. It also involves the ongoing lack of certainty as to the future pay and conditions of the employees as employees of Hobart Water as there's no certainty as to whether there is a bona fide transmission of business under the defined meanings of the Workplace Relations Act.

PN112

THE DEPUTY PRESIDENT: And if there is does that change everything?

PN113

MR O'BRIEN: I think it does. The lack of certainty is due to Derwent Valley Council failing to provide the employees and the union definite written information as required by the introduction of change provisions which are in the Derwent Valley Council enterprise agreement. And we submit that the transfer of employment without the employees' consent and without a bona fide transmission of business would be an illegal act by Derwent Valley Council. And unless we're satisfied today we'll be seeking directions from you, your Honour, to prevent that termination of employment occurring on 31 October until we have received adequate proof by way of documented legal evidence, either a letter from a lawyer which we can have checked with our lawyers and gain some certainty, and once we're sure - so we just want proof, we want a legal opinion.

PN114

We don't want the terminations to occur until after we are sure of a transmission of business. We want certainty about what the conditions of employment will be and what instruments will apply well before they transfer over.

PN115

THE DEPUTY PRESIDENT: So are you saying that the documents that council have given you don't give you what you want?

PN116

MR O'BRIEN: Definitely not.

PN117

THE DEPUTY PRESIDENT: Well, you may need to explain in detail what it is that you want. I mean, this quite clearly says - it defines transferring employees. That's not an issue. It says all accrued entitlements.

PN118

MR O'BRIEN: What part of the business? What part of the business is being transferred?

PN119

THE DEPUTY PRESIDENT: Well, I think you know better than I do by now.

PN120

MR O'BRIEN: Well, there's eight employees are going over. Is that a transmission of business?

PN121

THE DEPUTY PRESIDENT: Well, I don't know.

PN122

MR O'BRIEN: Well, that's what I don't know either, and I want to get a legal opinion on whether it is or it isn't.

PN123

THE DEPUTY PRESIDENT: Well, I'm trying to find out from you what it is that you want to know, because if you picked this up and read it and you understood how the business was operating and what part of the business was taken over by Hobart Water, prima facie it would appear to be a transmission of business. But you say that that's not good enough, and I want to know what more you want.

PN124

MR O'BRIEN: Yes. Well, I have got nothing apart from that that I can be sure of. Now, I don't have - I'm not a lawyer.

PN125

THE DEPUTY PRESIDENT: And this I take it is a copy of a commercial contract between Hobart Water and Derwent Valley Council?

PN126

MR O'BRIEN: It's some extracts from. It may not be what their contract says today. That was what we were given yesterday. There could be changes to the contract.

PN127

THE DEPUTY PRESIDENT: You're not inferring that they're being dishonest about it are you?

PN128

MR O'BRIEN: No. But I'm just saying is there or isn't there? Has there been any - there was to be some discussions yesterday following our meeting, Mr Mackey and I, and we did discuss some things, and it could have resulted in some changes to the contract.

PN129

THE DEPUTY PRESIDENT: All right. Well, if there were I'm sure that they will tell us.

PN130

MR O'BRIEN: Yes, sure.

PN131

THE DEPUTY PRESIDENT: Okay. But you accept, subject to what they may say, that that's part of the contract?

PN132

MR O'BRIEN: I'll accept that that is part of the contract if they tell me it.

PN133

THE DEPUTY PRESIDENT: All right. Now, reading the extracts that are here, it defines transferring employees, which appears to meet the definition of a transmission of business as to the provisions under 42. I'm not too sure what else it is that you want council to give you that's going to let you sleep well at night.

PN134

MR O'BRIEN: Well, okay, I'll be very clear in what I want.

PN135

THE DEPUTY PRESIDENT: Okay. Just so the council can come back respond to that, and we don't sort of go backwards and forwards.

PN136

MR O'BRIEN: In the draft directions, your Honour, attached to that there's the introduction of change provision with my underlining. Now, the rights the employees and the union have:

PN137

For the purpose of such discussions the council shall provide in writing to the employees concerned and the unions to which those employees are members all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on the employees and any other matters likely to affect the employees.

PN138

That's what we want. We want that in writing, which is in the introduction of change provisions of the enterprise agreement. And somewhere around here I've got the sections of the Act which we're referring to. The section of the Act I think that is relevant, it's a legal opinion concerning the section of the Act as the business arrangements in the contract which we are not privy to apart from some extracts, how they actually apply in terms of transmission of business as per schedule 9, transmission of business rules, and it refers to the transitional instruments.

PN139

THE DEPUTY PRESIDENT: Are you talking about 602?

PN140

MR O'BRIEN: No. I'm talking about the section of the Act that would apply to transitional instruments. The agreement that applies would be defined as a pre reform certified agreement, and it's in volume 2 of the Act and it's at page 488 on.

PN141

THE DEPUTY PRESIDENT: Section?

PN142

MR O'BRIEN: It's in schedule 9. So it's in schedule 9 of volume 2 of the Act.

PN143

THE DEPUTY PRESIDENT: Whether it was taken from a different Act. But there's some fairly onerous requirements under the Act for notification to the Office of the Employment Advocate about the transmission of business. Are you familiar with all of that? Yes, okay. Thank God I don't have to go through it again.

PN144

MR O'BRIEN: The problem is, Commissioner, that it's 28 days after the transferring employees starts being employed by the employer. Now, what about the introduction of change provisions which relate to well before the change? That's a different issue again.

PN145

THE DEPUTY PRESIDENT: All right. So what is it that you're asking the council to provide you with?

PN146

MR O'BRIEN: I want written proof based on the contract, legal opinion and reasons why this is a transmission of business under this section of the Act that we're referring to.

PN147

THE DEPUTY PRESIDENT: If it satisfies the definition of the Act surely it's a transmission of business. Why would you require anything else?

PN148

MR O'BRIEN: Are they going to admit that it's - why isn't it in the contract that it's a transmission of business?

PN149

THE DEPUTY PRESIDENT: Well, I don't know whether it has to be in the contract. I mean, the Act defines what is a transmission of business. If that's what they've done, and I'm not sure whether that is or it isn't, surely that would satisfy what you - - -

PN150

MR O'BRIEN: Okay. Well, all I can do is repeat in writing - that we want in writing that it goes to the employees' concerned and the union all relevant information about the changes. That's the generality that we're seeking, including the nature of the changes proposed, the expected effects of the change on employees, namely, are the instruments going to apply to them? There's nothing in that contract that says the instruments will - - -

PN151

THE DEPUTY PRESIDENT: Well, the Act requires what happens.

PN152

MR O'BRIEN: That's right, if it's a transmission of business.

PN153

THE DEPUTY PRESIDENT: Yes. I'm just looking for that. The business or part of a business for which the new employer is successor, transmitter or assignee as the business being transferred in terms of this part.

PN154

MR O'BRIEN: That's right. That's a fairly clear part of it. But is the transference of eight employees part of the business?

PN155

THE DEPUTY PRESIDENT: Well, it tells you about transferring employees in this section.

PN156

MR O'BRIEN: Yes, it does.

PN157

THE DEPUTY PRESIDENT: They're not part of the business, they're part of the - the employees transferring.

PN158

MR O'BRIEN: What's the defined part of a business?

PN159

THE DEPUTY PRESIDENT: Well, part of a business, a discrete part of a business being transferred. And I presume that's something like what's happening. The company can respond to that. I just seem to be getting bogged down in documentation, legal opinions which are sometimes questionable, with all due respect. But it may not be necessary because the employees firstly are protected by - I hate to say - but they're protected by the Act.

PN160

MR O'BRIEN: But only if there's a transmission of business.

PN161

THE DEPUTY PRESIDENT: That's right. And that's what we need to establish.

PN162

MR O'BRIEN: Well, this is where it's becoming circular, because until we get something which is our right under the introduction of change provisions - - -

PN163

THE DEPUTY PRESIDENT: Well, forget that. Look at the Act.

PN164

MR O'BRIEN: But if I look at the Act what do I then put into the Act that tells me whether it's a transmission of business?

PN165

THE DEPUTY PRESIDENT: It defines it, business or part of a business.

PN166

MR O'BRIEN: What is a part of a business?

PN167

THE DEPUTY PRESIDENT: Well, the company will explain that.

PN168

MR O'BRIEN: Well, maybe they better do it, but we want it in writing, which is our right.

PN169

THE DEPUTY PRESIDENT: Well, I don't know whether it's your right. I think you're getting bogged down in paperwork and we're missing the point, or I'm missing the point.

PN170

MR O'BRIEN: Well, I might be getting bogged down in paperwork, your Honour, and I'm not trying to be - - -

PN171

THE DEPUTY PRESIDENT: With unnecessary paperwork.

PN172

MR O'BRIEN: And no disrespect at all, but it's very important to people that they know what they're going over on and what instruments apply to them.

PN173

THE DEPUTY PRESIDENT: The Act requires that they know, and I don't have a problem with that.

PN174

MR O'BRIEN: Yes, and so does the enterprise agreement. And the enterprise agreement provides an obligation on the council to provide that information.

PN175

THE DEPUTY PRESIDENT: The Act provides the council, or requires that
they - - -

PN176

MR O'BRIEN: But not until 28 days after the change. We want it before the change.

PN177

THE DEPUTY PRESIDENT: Okay. Well, perhaps if the company can tell me, is this a transmission of business?

PN178

MR CURTIS: We've treated it as if it is.

PN179

THE DEPUTY PRESIDENT: It is a transmission of business. It's a part of the - I mean, I'm not familiar with the water plant but I presume it's a discrete part of the business. It's been loaned to somebody else or something?

PN180

MR O'BRIEN: It's one thing treating it as it. Is it?

PN181

MR CURTIS: Could we have an opportunity, I hope helpfully, to respond?

PN182

THE DEPUTY PRESIDENT: I'd appreciate that. The fundamental issue here that the council is trying to achieve is to ensure that the existing employment conditions, remuneration, position and accrued entitlements and service recognition are preserved and passed over and taken on legally by the new employer so that in every respect no employee is disadvantaged. And that's what those provisions in the proposed contract are striving to do. If there is a suggestion that they could be refined or expanded to make it even clearer that that's what we're trying to do, then my instructions are that the council would be happy to respond to that.

PN183

Our view at the moment is that there isn't a lack of clarity, and I can demonstrate that by, if we look at 42, which has been criticised, what it says firstly, and I think importantly to support the point I've just made, is that Hobart Water agrees that it will employ each of the transferring employees from the commencement date so that there is no loss of employment. And in that regard they agree, firstly, as far as the accrued entitlements of each transferring employee is concerned, as more particularly described in schedule 1, that's the employees, they shall be preserved subject to contributions of council set out in schedule 17. And if you go down to the last paragraph there:

PN184

Council will make provision for adjustments to the accrued liability specified in schedule 17.

PN185

So that sets up the clear obligation, bearing in mind - if you go to schedule 17, which you've got a copy of there I think, this document confirms the accrued entitlements for the employees transferring from DVC to Hobart Water as at 1 October, which was what was anticipated at the time this was drafted.

PN186

The parties undersigned agree that these entitlements described below represent all of the council's entitlement obligations to the employee -

PN187

Et cetera. Now, what's intended to be attached to that is the final up to the minute detailed entitlements including years of service for each of the eight employees. Now, when that comes with it the council can't see what more possible detail it could put into this document to make it absolutely clear what it's trying to do. But again I repeat my earlier comment, if there's a genuine refinement or improvement that's reasonable the Derwent Valley Council will be only too happy to do it because it genuinely wants to preserve their jobs and ensure that each of the employees can go across with no disadvantage in terms of their current provisions.

PN188

THE DEPUTY PRESIDENT: So accrued entitlements, or what will be attached to schedule 17 will be their starting date with Derwent Valley Council?

PN189

MR CURTIS: Yes.

PN190

THE DEPUTY PRESIDENT: So each of them will have a starting date, and that gives them continuity of employment for purposes of - I hope it never happens - redundancy, or long service leave particularly.

PN191

MR CURTIS: Yes, indeed.

PN192

THE DEPUTY PRESIDENT: But their accrued entitlements will be annual leave and sick leave?

PN193

MR CURTIS: Yes.

PN194

THE DEPUTY PRESIDENT: Annual leave, sick leave, long service leave. Is there anything else?

PN195

MR CURTIS: No, I think that's - - -

PN196

MR O'BRIEN: Redundancy service, service for the purpose of redundancy.

PN197

THE DEPUTY PRESIDENT: Well, I've just said that.

PN198

MR CURTIS: I've just said that, yes.

PN199

THE DEPUTY PRESIDENT: Yes, that's covered. There's nothing else. They're the standard things.

PN200

MR CURTIS: So that's what we come to. The only reason it's not there at the moment is because it's the very last thing. Now, in fairness, at 31 August the employees were all written to and said, look, just as at that date here's our calculations.

PN201

THE DEPUTY PRESIDENT: That's that email that Mr O'Brien referred to.

PN202

MR O'BRIEN: I haven't seen the actual document that's gone to the employees at this point in time.

PN203

MR CURTIS: So to give them a progressive, if you like, because obviously it changes day to day, that was an advice as to the obvious intended approach at that point.

PN204

THE DEPUTY PRESIDENT: So in effect what happens is that their commencement date with Derwent Valley Council, whatever that might be, becomes their commencement date for the purpose of long service leave and/or redundancy for as long as they're employed by Hobart Water?

PN205

MR CURTIS: Absolutely.

PN206

THE DEPUTY PRESIDENT: So you could say that nothing's changed other than the name of the employer, everything else continues the same. Is that - - -

PN207

MR CURTIS: That is absolutely the aim of the document and that's what the parties have discussed.

PN208

THE DEPUTY PRESIDENT: All right. Does that clarify that?

PN209

MR O'BRIEN: Well, partly. If there's refinements to be made to the contract and it is the intention of the Derwent Valley Council to treat this as a transmission of business under the Act, are they prepared to put that into the contract?

PN210

THE DEPUTY PRESIDENT: Well, if I could make a suggestion, and you can shoot me down if you like. Where you've got transferring employees as defined in the Workplace Relations Act.

PN211

MR CURTIS: I'm very happy to make - seriously, the council are not trying to play funny buggers with us.

PN212

THE DEPUTY PRESIDENT: No, I'm not suggesting that, but I can understand the concern, and I'm trying to find a way around it without us getting bogged down in things that are not going to help the employees basically. I think we need to consider them.

PN213

MR O'BRIEN: Will they write to the employees and say that this will be dealt with under the transmission of business provisions of the Workplace Relations Act?

PN214

THE DEPUTY PRESIDENT: Do you have a problem with that?

PN215

MR CURTIS: I don't, our client doesn't have a problem.

PN216

THE DEPUTY PRESIDENT: I don't have a problem with it. I don't think that's a difficulty. That then locks them into the provisions of the Act which offers them protections. That should address most of your concerns.

PN217

MR O'BRIEN: If it's water tight and it is - they're going to, irrespective to - - -

PN218

THE DEPUTY PRESIDENT: Well, that's sort of suggestive of Work Choices is water tight, and we won't get into that.

PN219

MR O'BRIEN: No, I agree. I woke up last night in a sweat over that one. But what I was thinking is I would like to see the words, and I would like to have the ability to make sure it is water tight in terms of being legally binding on the council in terms of the contract and in terms of what is provided to the employees. Now, if that can be done, and it leaves no doubt that everything is going to be dealt with under the transmission of business provisions then I suppose we don't have an argument.

PN220

THE DEPUTY PRESIDENT: You're pretty safe, yes.

PN221

MR O'BRIEN: But I want the right to come back and I want the right to make sure that it is water tight. Now, I still ask one thing, and that is that these words are presented to you today because we haven't got any time. If I was to proceed with my application the termination of employment on 1 October is Sunday.

PN222

THE DEPUTY PRESIDENT: Is it still the 1st?

PN223

MR CURTIS: There has been no exchange of contract because these proceedings have held it up.

PN224

THE DEPUTY PRESIDENT: Not much happens on a Sunday does it?

PN225

MR O'BRIEN: Well, could I ask then, your Honour, that the transfer of employment and the termination of employment does not occur until we've reached agreement on those words going into the contract.

PN226

THE DEPUTY PRESIDENT: Well, I can't go quite that far, but I'm certainly happy that you reach agreement on the words. I really don't know what the concern is, I have to be honest. All that's been said is on the record here anyway, it's all being transcribed.

PN227

MR O'BRIEN: Is it?

PN228

THE DEPUTY PRESIDENT: Yes.

PN229

MR O'BRIEN: I thought that we were off the record.

PN230

THE DEPUTY PRESIDENT: No, it's all recorded, for no other reason than I thought it was a hearing.

PN231

MR O'BRIEN: Okay.

PN232

THE DEPUTY PRESIDENT: So it's all there, their commitments. And my understanding is, as I said, prima facie it is a transmission of business. They have agreed to treat it as a transmission of business. So there's no terminations, they wake up on whatever day it is and start work as an employee of Hobart Water but they maintain all of their accrued entitlements that they have with Derwent Valley. And I think if in the contract where it talks about the employees, that it refers back to the Act, that they're transferring employees as defined under section 577 onwards, 579 is the definition. And that then covers - - -

PN233

MR O'BRIEN: Now, this is Derwent Valley Council. This is a contract we're talking about between Derwent Valley Council and Hobart Water. Is Hobart Water going to agree to this?

PN234

THE DEPUTY PRESIDENT: Well, they've signed the contract.

PN235

MR O'BRIEN: Okay. But we're making arrangements for - - -

PN236

MR CURTIS: Can I answer the question? The first requirement was that Derwent Valley Council send a letter out to the transferring employees of the kind that was described. No difficulty with that.

PN237

MR O'BRIEN: Number one.

PN238

MR CURTIS: In relation to an adjustment to that definition in the way that you've suggested, Derwent Valley Council has no problem with that. The issue of the introduction of rules such as transmission of business or words around that were discussed between the parties earlier on today as a possible thing that might come up to further improve the document. We're very confident that Hobart Water won't have a problem with it, but we're happy to say we won't sign it unless they agree.

PN239

THE DEPUTY PRESIDENT: Okay, that's pretty fundamental.

PN240

MR O'BRIEN: I'm sorry to be paranoid.

PN241

THE DEPUTY PRESIDENT: Yes, you are.

PN242

MR O'BRIEN: Well, I've been bitten on many a time over my career and I'm - - -

PN243

THE DEPUTY PRESIDENT: Haven't we all? But I don't think that this is going to be one of those cases.

PN244

MR O'BRIEN: Well, I reserve the right to come back.

PN245

THE DEPUTY PRESIDENT: Sure.

PN246

MR O'BRIEN: And if there is any problems I would holding whoever is the employer at the time responsible.

PN247

THE DEPUTY PRESIDENT: Well, it would be highly unlikely and certainly not in their interests if Derwent Valley walked out of here and changed their mind because they'd have to come back too.

PN248

MR O'BRIEN: Can we go off the record for a few moments?

PN249

MR CURTIS: Just before we do, we would like to hear a commitment from the union that they won't launch any challenge to this being a transmission of business, because we come from the opposite point of view. We're treating it that way, we want it to be treated that way, and far from needing a legal opinion it's our view that the only thing that could ever unsettle that is if someone launches proceedings trying to challenge that it is. And if we're really being genuine about trying to make sure that that's how it's treated let's have a commitment that they won't try and challenge that at a later date, because then it's absolutely protected.

PN250

Derwent Valley Council surely are not going to try and alter that, nor Hobart Water, and we don't want to see - it's certainly not in the employees' best interests - to find ourselves back here at some point in the future because for some unknown reason there's a challenge to that.

PN251

MR O'BRIEN: Yes, I think that's fair enough. And I think that if we can refine some words concerning the commitment that is in the contract to it being - say it wasn't an actual transmission of business. If the contract treats it for all purposes as if it was a transmission of business we certainly challenge it. And if it is found later that some impediment existed, so long as it's treated as a transmission of business via the two parties to that contract and there's no disputes about them doing anything else, we will never challenge it. Why would we?

PN252

THE DEPUTY PRESIDENT: Well, it's in your interests, otherwise we wouldn't be here, that it be treated as a transmission of business.

PN253

MR O'BRIEN: That's right, exactly.

PN254

THE DEPUTY PRESIDENT: And you'd agree that that's how it should be. Prima facie it would appear that that's exactly what it is anyway, and may not withstand any challenge if it were ever likely to happen. But that's what both parties want. And if you can draw up a document that addresses that you've got what you want, and all your protections are there.

PN255

MR O'BRIEN: That's right. That is the protection that we're seeking today.

PN256

THE DEPUTY PRESIDENT: Yes, and that's reasonable, certainly from my point of view, and it may be that somewhere in the document if you refer to the references in the Act it may consolidate what it is that you're saying.

PN257

MR O'BRIEN: That's right.

PN258

THE DEPUTY PRESIDENT: I've seen enough of these agreements, as have you no doubt, apart from those words. Maybe pre Work Choices would have been - but that's the new world that we live in. I don't have any difficulty with - - -

PN259

MR O'BRIEN: Okay. Well, if we do have some particular problem and there's some impediment we see to the words, et cetera, there's no problems about coming back here and refining it with your assistance.

PN260

THE DEPUTY PRESIDENT: No, I'm happy to assist if necessary.

PN261

MR CURTIS: Is it in our interests - and this might be difficult, but, Deputy President, you suggested some words before in the definition of transferring employees, which I'm instructed are fine. What I'm exploring is whether it's in everybody's interests to see whether a relatively small amendment like that could actually be clearly uttered now, agreed on as the one that we have to get in the contract, and then rather have a situation where we go away, use our imagination, try to achieve what we think we're all talking about, and find out that it was at issue with it. If it's as narrow as that, if it's as easy as that let's do it now is what I'm saying.

PN262

MR O'BRIEN: Well, the types of words that I'd be looking at, it's not just limiting it to the transferring employees. This contract will be deemed to be under the terms of the Workplace Relations Act transmission of business - - -

PN263

THE DEPUTY PRESIDENT: Well, only the part referring to the employees, yes.

PN264

MR O'BRIEN: Well, the transferring instruments. The transmitting instruments really is the issue.

PN265

THE DEPUTY PRESIDENT: Well, if it's a transmission of business the Act talks about what transmits.

PN266

MR O'BRIEN: That's right, and it's the transmitting instruments that provide the protection and binding the new employer.

PN267

THE DEPUTY PRESIDENT: Which is the award or the agreement.

PN268

MR CURTIS: I don't think you need to restate what's in the Act as being the law.

PN269

THE DEPUTY PRESIDENT: No, that's what I'm saying.

PN270

MR O'BRIEN: So long as we're saying we're committing to the Act one way or the other, and this will be in accordance with the Act.

PN271

THE DEPUTY PRESIDENT: Or if you can sort it out, why don't you just put sections A, B, C, D, whatever they are, the Workplace Relations Act will apply?

PN272

MR O'BRIEN: Well, I'd be happy with - - -

PN273

THE DEPUTY PRESIDENT: Tell me if it's not too clear. It jumps all over the place.

PN274

MR O'BRIEN: The generality of the transmission of business provisions as defined under the Workplace Relations Act.

PN275

MR CURTIS: Where would you like that?

PN276

MR O'BRIEN: Somewhere in the contract.

PN277

THE DEPUTY PRESIDENT: Where it refers to transferring employees.

PN278

MR O'BRIEN: Transferring employees would be a suitable spot.

PN279

THE DEPUTY PRESIDENT: And then perhaps a sub heading.

PN280

MR CURTIS: So we put in - I mean, I'm not trying to slow it up. I think it's worthwhile to actually try and put the words.

PN281

THE COMMISSIONER: No, I think it's well worth it. So what exactly do you want to put in there? After transferring employees, and sort of a dot point, and then say - - -

PN282

MR O'BRIEN: Okay, I'll just get that part and have a look at that. And I might have to confer with my two associates here, and we might just get the right words down by doing that, in case I miss something.

PN283

THE DEPUTY PRESIDENT: It's 42, which has got a heading Transferring Employees, and then it says:

PN284

Hobart Water agrees that it will employ each of the transferring employees from the commencement date -

PN285

And that's in the main part of the contract -

PN286

- so that there is no loss of employment. In respect of each transferring employee the council and Hobart Water agree that -

PN287

And then if you put the transfer being treated as, or whatever words you said.

PN288

MR O'BRIEN: The transfer of employment will be in accordance with the transmission of business rules.

PN289

THE DEPUTY PRESIDENT: Part 2 of Division 1?

PN290

MR O'BRIEN: I just say just within the Workplace Relations Act.

PN291

MR CURTIS: Transmission of business rules.

PN292

THE DEPUTY PRESIDENT: Transmission of business rules which is Part 2, Division 1 which starts at section 577. I think Barry just wants transmission of business rules of the Workplace Relations.

PN293

MR O'BRIEN: I think so, because if we're wrong with the section - there's two sections, and I think it's just a generality of the Act is all we're after - rules in the Workplace Relations Act 1996, yes.

PN294

THE DEPUTY PRESIDENT: And what that then does is goes through and gives you definitions of what's transferring employees. It talks about how they're to be treated, it talks about the transferring of the particular industrial instruments, and then there's the obligation to notify the Office of the Employment Advocate, and I'm sure you're aware of that, because you'll be fined if you don't. Don't ask me why but that's what it says. So that should cover it. I had a quick look through it earlier today because the transmission of business provision - - -

PN295

MR O'BRIEN: Now, this is the main purpose of today's hearing, but I just raise, your Honour, this. A lot of issues, there are issues galore, and some of those I spoke to Mr Mackey about yesterday. And one of the problems that we're encountering as the new employer, even though it's not the new employer as yet, is that we have been - there's a round of enterprise negotiations going on at Hobart Water. Now, Mr Kelly and Mr Swanton attended that two weeks ago, he was at the meeting, and Hobart Water are attempting to lock these employees out of being involved in the enterprise agreement negotiations.

PN296

They're attempting to put them into a situation where they're being pressured into workplace agreements even before they're actually employees of the organisation, and contrary to your words last time around cautioning against that, the pressure has still been on. And I asked Mr Mackey as a partner in this contract to attempt to stop this from happening and to assist the union by putting pressure on and looking after his employees, that they are not dealt with in such a shoddy way.

PN297

THE DEPUTY PRESIDENT: So why in your view is Hobart Water not prepared to negotiate?

PN298

MR O'BRIEN: Because they have got a posse of industrial AWAs and trying to get people off collective agreements because it's in their interests and weakens the workforce in terms of their bargaining power, simply that.

PN299

THE DEPUTY PRESIDENT: Well, once they're employees of Hobart Water they can't be forced into AWAs.

PN300

MR O'BRIEN: No.

PN301

THE DEPUTY PRESIDENT: But if the rest of the people are on AWAs there wouldn't be any negotiations would there?

PN302

MR O'BRIEN: Well, they're not all on AWAs. They're attempting to get people on AWAs. There's a core of people who are on the enterprise bargaining negotiations who haven't succumbed to the pressure, and we're seeking to include these transferring employees into those negotiations. And if this transfer of employment takes place as it's mooted for whenever it is, there will be a dispute notification before you concerning the new employer.

PN303

THE DEPUTY PRESIDENT: Well, that's all right. I don't know what the Commission can do under those circumstances but - and this will be on the record - I'd be taking them straight to the Anti Discrimination Commission. They'd have more chance of getting something done there, that they're being treated differently to other employees.

PN304

MR O'BRIEN: I'll take that advice on board.

PN305

THE DEPUTY PRESIDENT: But the transferring of industrial instruments stays in place for these people for 12 months.

PN306

MR O'BRIEN: That's right.

PN307

THE DEPUTY PRESIDENT: And they can't be forced - in fact there's a case going on in Perth at the moment about some new employer who tried to get people onto AWAs before the business was transmitted. There will be a lot of these things going on, as we all know.

PN308

MR O'BRIEN: Sure.

PN309

THE DEPUTY PRESIDENT: But you've at least got an employer here who is trying to do the right thing, and hopefully Hobart Water will also try to - well, will do the right thing. But if they start doing those sorts of things that is discrimination by locking them out of any negotiations.

PN310

MR O'BRIEN: The enterprise agreement will apply at Hobart Water, and in addition to that there's a dispute settlement procedure which can result in arbitration and gives the Commission the power to arbitrate.

PN311

THE DEPUTY PRESIDENT: That's under the Hobart Water one.

PN312

MR O'BRIEN: Under the Derwent Valley Council transmitting instrument that they'll be bound by, you see, and we'll be using - - -

PN313

THE DEPUTY PRESIDENT: And you've got access to that as well.

PN314

MR O'BRIEN: A number of forums.

PN315

THE DEPUTY PRESIDENT: Yes. It's just that there's not much power left in this one.

PN316

MR O'BRIEN: Well, your jurisdiction in this one is good because the enterprise agreement gives you that jurisdiction in terms of arbitration.

PN317

THE DEPUTY PRESIDENT: Well, if that's what it says, yes. Okay, that's right.

PN318

MR O'BRIEN: It is.

PN319

THE DEPUTY PRESIDENT: Until that's regulated out of existence. And one shouldn't be cynical should one?

PN320

MR O'BRIEN: No, but we can see it happening before our eyes.

PN321

THE DEPUTY PRESIDENT: We're living the dream. Did you want to add anything else?

PN322

MR CURTIS: Only that how we wash this up in terms of these proceedings, because obviously we need to have some finality to it.

PN323

THE DEPUTY PRESIDENT: Well, you've now got agreed words that you're going to put into the contract. I guess the next step is advice as to when it's all going to happen, presuming it's not going to happen on 1 October.

PN324

MR O'BRIEN: Well, that's right, there should be something. They shouldn't be let off the hook completely in terms of the rights to provide the employees with written information.

PN325

THE DEPUTY PRESIDENT: Well, they have to give them a date.

PN326

MR O'BRIEN: Under the introduction of change provisions.

PN327

THE DEPUTY PRESIDENT: Well, I think that's all been done.

PN328

MR O'BRIEN: Well, it hasn't.

PN329

MR CURTIS: It has. And to be fair, the only thing that's created uncertainty in recent times has been how we're going to resolve this issue, which has just kept us - we couldn't exchange a contract when this issue is left unresolved. Now it's resolved - - -

PN330

THE DEPUTY PRESIDENT: Okay. So that issue is now resolved with the words that you've agreed upon.

PN331

MR CURTIS: Yes.

PN332

THE DEPUTY PRESIDENT: So that now means doesn't it that the contract can be signed?

PN333

MR CURTIS: Yes.

PN334

THE DEPUTY PRESIDENT: And an operative or an implementation date.

PN335

MR CURTIS: Yes.

PN336

THE DEPUTY PRESIDENT: And you'll advise the employees they'll be given what their entitlements are, et cetera, and you'll advise the Office of the Employment Advocate.

PN337

MR O'BRIEN: And have a good read of what the introduction of change provisions are and address those headings in there, because that's what people need, they need to know what is happening.

PN338

MR CURTIS: We're well aware of what the requirements are there.

PN339

THE DEPUTY PRESIDENT: I would have thought that with all the discussions going on that it was possibly pretty clear. Maybe if you want it in writing.

PN340

MR O'BRIEN: Once again - you see, they're not all here. They've got nothing in their hands really, Commissioner, nothing - Deputy President I should say.

PN341

THE DEPUTY PRESIDENT: But you'll undertake to do that, advise them what their entitlements and the implementation date and when all that happens.

PN342

MR CURTIS: Absolutely. The agreement is structured so precisely that happens.

PN343

THE DEPUTY PRESIDENT: Yes, okay. And you have obligations to do that anyway. And don't forget to let the good old Office of the Employment Advocate know.

PN344

MR O'BRIEN: What is it, 5000 penalty points or something isn't it, under the Crimes Act.

PN345

THE DEPUTY PRESIDENT: All right. Look, well, we'll leave this matter on the basis that you've now got an agreed position that can go ahead. If it goes pear shaped I'll see you back here, but I doubt that that will happen. I think the contract will go ahead and be signed, and these guys can get on with their lives knowing exactly what's going to happen. Just before we go, do any of you want to add anything while we're on the record? Do you understand all of that?

PN346

UNIDENTIFIED SPEAKER: We're just happy for our union and what they've done today.

PN347

THE DEPUTY PRESIDENT: Good. So you understand what we've been talking about and the protections that you're going to get?

PN348

UNIDENTIFIED SPEAKER: That's what we wanted in the first place. Yes, that's what we were after in the first place.

PN349

THE DEPUTY PRESIDENT: Good, okay. Nice to have happy customers. We'll adjourn the proceedings, and hopefully we won't have to list it again, but that's available. Okay, thank you.

<ADJOURNED INDEFINITELY

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 RESPONSE FROM DERWENT VALLEY COUNCIL PN7
EXHIBIT #A2 FAX FROM HOBART WATER TO SEAN KELLY PN20
EXHIBIT #A3 LETTER TO AIRC WITH ATTACHED DIRECTIONS DATED 26/09/2006 PN49
EXHIBIT #A4 EXTRACTS FROM CONTRACT PN70
EXHIBIT #A5 DOCUMENT GIVEN TO MR SWANTON, ASU PN86