C2006/3262, Transcript of Proceedings [2006] AIRCTrans 1217 (17 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16055-1

SENIOR DEPUTY PRESIDENT WATSON

C2006/3262

FELTEX AUSTRALIA PTY LTD
AND
TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3262)

MELBOURNE

12.36PM, FRIDAY, 03 NOVEMBER 2006

Continued from 1/11/2006

PN181

THE SENIOR DEPUTY PRESIDENT: Any changes in appearances?

PN182

MR P ROZEN: Yes, I think I'm the only change, your Honour. I seek leave to appear on behalf of the TCFUA.

PN183

THE SENIOR DEPUTY PRESIDENT: Yes. Any objection, Mr Parry? Hardly in any position to object? Yes, Mr Rozen, leave is granted.

PN184

MR ROZEN: Thank you, your Honour.

PN185

THE SENIOR DEPUTY PRESIDENT: Very well. I have received a great deal of material from the parties. It appears the union has foreshadowed an application for adjournment. It's not entirely clear to me on what basis that application is being put and whether it is simply a procedural application to fall within the programming issues in any case, or on some other basis. Then there are issues, given the absence of any agreement between the parties, as to programming and any directions which will be issued. They are the matters I propose to deal with. Mr Rozen, are you able to advise me more fully as to the basis of the foreshadowed application that the Commission take no further steps in hearing and determining until after the termination of the application in the court?

PN186

MR ROZEN: Certainly, your Honour. Thank you for the opportunity to do that. We have prepared a brief - with the emphasis on brief - outline of submissions setting out that application, and copied to my learned friend.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes. Just a moment.

PN188

MR ROZEN: I will hand that to your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: So I can find it in the future, I'll mark it.

EXHIBIT #TCFUA5 - BRIEF OUTLINE OF SUBMISSIONS

PN190

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rozen?

PN191

MR ROZEN: Your Honour, the first matter that I wish to address the Commission on is the statutory power available to the Commission to deal with this application. Ultimately, your Honour, for the purposes of today it may well be that not a lot turns on whether your Honour's power is derived from the pre-reform section 111 or the Act in its current form. But that is a matter which I understand was agitated briefly in respect of the intervention application on Wednesday.

PN192

THE SENIOR DEPUTY PRESIDENT: Yes, and skilfully avoided.

PN193

MR ROZEN: Yes. And your Honour may decide to take a similar approach today, and we would not say that a lot would turn on it, but we do for the sake of completeness wish to make some brief submissions on it, because in the time available we have been able to find a couple of cases which seem to deal with the issue and may be of assistance to the Commission. If not today, then certainly once the substantive matter, if it in due course comes on, then obviously it will be an issue of - well, it may be an issue of some significance, your Honour.

PN194

THE SENIOR DEPUTY PRESIDENT: Yes.

PN195

MR ROZEN: Our starting point, your Honour, is that the Commission's powers do derive from the Pre-Reform Act and our application is made pursuant to section 111(1)(g)(iii), a provision which will of course be familiar to your Honour. We say that the Commission should refrain from further hearing of the application on the basis that proceedings are certainly not desirable in the public interest, and we'll expand that application. In terms of the powers available to your Honour, the starting point, as I think was indicated on Wednesday, is schedule 7 of the Workplace Relations Act in its current form, in particular Part II dealing with pre-reform certified agreements.

PN196

In division 1 of Part II, in what I think I can refer to as clause 2 which is entitled, "Continuing Operation of Pre-Reform Certified Agreements under Old Provisions", the schedule provides as follows:

PN197

Subject to this schedule, the following provisions of the Pre-Reform Act continue to apply in relation to a pre-reform certified agreement despite the repeals and amendments made by the Workplace Relations Amendment Work Choices Act 2005.

PN198

Then paragraph (e), your Honour, preserves the operation of section 170LW and paragraph (r) provides, perhaps a little cryptically that any other provisions relating to the operation of the abovementioned provisions, including of course section 170LW, continue to operate. So the question really becomes what does provisions relating to the operation of, in this case section 170LW, mean.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes.

PN200

MR ROZEN: Your Honour, in the decision by Lacy SDP in the matter of Transport Workers Union of Australia v Brinks Australia - I'll hand a copy of that to your Honour, and whilst I'm at it, I might hand up a copy of the other decision that we rely upon.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes.

PN202

MR ROZEN: The first case that we rely upon, Transport Workers Union of Australia v Brinks Australia is print number PR973306. It's a decision of Lacy SDP dated 12 July 2006. Your Honour can see, if I can refer to the decision briefly, from paragraph 1 that the application that the Commission was dealing with was an application by the union for a direction in the nature of an interlocutory injunction, restraining Brinks Australia from terminating the employment of its employees engaged under that agreement. Your Honour, the substantive application that the Commission was dealing with was a dispute about the application of the agreement under section 170LW. At issue in this particular application was whether the Commission had power to grant the relief that was sought on an interlocutory basis or an interim basis by the union.

PN203

His Honour ultimately decided that he did have power to grant that relief, and in fact granted it, and the relevant part of the decision that we rely upon, your Honour, starts at paragraph 17 on the fourth page of the print. His Honour was referring there to section 111(1)(p) of the Pre-Reform Act, and his Honour held:

PN204

In my view, the power to make interim decisions under section 111(1)(p) permits me to make a declaration ...(reads)... settled between the parties. I do make that declaration.

PN205

His Honour went on at paragraph 18 to make the observation that he was not persuaded that the powers to make interim orders under section 111(1)(t) as it was in the Pre-Reform Act have been removed by the Act. Then there is a reference to schedule 7, Part II, Division 1, clause 2(1)(r) which is the provision that I just took your Honour to. Then a reference to a decision by the Full Bench in the Telstra matter, where as your Honour will be aware it was held that the powers in section 111(1) are available for the settlement of disputes over the application of an agreement, subject of course to any specific clause in the agreement which would lead to a contrary position. At paragraph 21, in conclusion, his Honour held:

PN206

Arguably, section 111(1)(t) relates to the operation of section 170LW.

PN207

It was on that basis that his Honour was satisfied that he had the power under the pre-reform section 111 to grant the relief that was sought. The other case, your Honour, that we rely upon is the matter of Tristar Steering and Suspension Australia Limited Certified Agreement. It's a decision of Marsh SDP dated 1 November 2006, PR974417. I won't take your Honour to the detail of this, but I will just make a couple of observations about it if I may. It was an application for the termination of a pre-reform certified agreement, the nominal expiry date of which was 30 September 2006. This particular decision concerned an application under section 111(1)(g), as it turns out, by the union for the Commission to refrain from further dealing with the substantive application.

PN208

As we read the decision, which is fairly lengthy, your Honour, it seems that it was common ground that the Commission had powers under section 111(1)(g) to grant the various forms of relief set out in the paragraph. There doesn't appear to have been any argument directed to that, other than the construction of the particular provisions as they applied to the application, but the sort of starting point seemed to be that everyone accepted that 111(1)(g) applied in the circumstances. So, your Honour, our starting point - - -

PN209

THE SENIOR DEPUTY PRESIDENT: In the old Act form, or the current Act form?

PN210

MR ROZEN: Yes, in the old Act form.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes.

PN212

MR ROZEN: Our starting point, your Honour, is that 111(1)(g) applies. Your Honour may well be aware that under the Work Choices Act, I call it that, the current Act, the equivalent provision to section 111(1)(g) would appear to be 111(1)(e), however when one compares the old (g) with the current (e), it's apparent that the Commission's powers to refrain from further hearing or from determining a dispute have not been reproduced, so what one is left with is a power to dismiss a matter or part of a matter, and further, the grounds upon which that can occur are narrower than were the grounds in the old Act. Having said all that, your Honour, as I indicated at the outset, there's probably not a lot that turns on it for today's purpose because in effect what we are asking the Commission to do is adjourn the hearing of the substantive application that's before the Commission.

PN213

THE SENIOR DEPUTY PRESIDENT: Which could be done - - -

PN214

MR ROZEN: Which could be done, under the general powers the Commission has, whether under the old or the new legislation.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes.

PN216

MR ROZEN: If I could turn, then, your Honour to the basis upon which that application is made? It's really quite a simple point, your Honour, and I refer to paragraph 5 of the outline that I've handed up, which is TCFUA5. Your Honour was told on Wednesday that there are proceedings that have been commenced by the TCFUA and by a number of other applicants in the Federal Court of Australia. In these proceedings, your Honour, what the Commission is being asked to determine is that certain offers of employment which were made on 26 October 2006 - we say offers of employment in quotes, your Honour, in our outline because if one examines the offers, and once again, not a lot turns on this for today's purposes, but if one examines them, they are contingent offers.

PN217

Various things like dates and important details like that are clearly to be determined. What the Commission is being asked to do is to determine that those offers exclude employees from any severance pay entitlement under clause 26 of the Feltex Australia Enterprise Agreement 2004. The Commission is being also asked to determine that the offers constitute acceptable alternative employment under clause 48E of the Textile Industry Award, or that the offer that's made is substantially similar and no less favourable to employees within the meaning of clause 22.7 of the 2000 award. In a practical sense, the Commission is being asked to compare the conditions of employment under the proposed AWA with those provided for in the 2004 Enterprise Agreement.

PN218

The Federal Court proceedings, your Honour, involve an allegation by the union that Feltex Carpets Pty Ltd and Godfrey Hurst Australia Pty Ltd have contravened the Freedom of Association provisions, and continue to contravene the Freedom of Association provisions by refusing to employ the employees for the reason that they are entitled to the benefits of the 2004 agreement, to paraphrase the application. Your Honour, bearing in mind the circumstances, the applicants have sought from the Federal Court an expedited hearing of that application. That is, an expedited hearing of the application for final relief, and the court has indicated to my instructors that it can accommodate that and can hear the application on 13 and 14 November 2006.

PN219

THE SENIOR DEPUTY PRESIDENT: I noticed in correspondence the union sought the acquiescence of the company to those dates. Has that matter been resolved?

PN220

MR ROZEN: We haven't received a response to that, your Honour. In fairness, we asked for it by 3 o'clock this afternoon.

PN221

THE SENIOR DEPUTY PRESIDENT: I see.

PN222

MR ROZEN: And we asked for it because obviously we're interested to know, but also the court in its communication to my instructors asked that they seek the acquiescence of the employer to that. We would be most surprised in the circumstances, your Honour, if they didn't acquiesce to that, but of course, that's a matter for them and we await to hear what they say. Your Honour, if we succeed in the Federal Court, if the union succeeds, then the practical effect of that will be that Feltex Carpets will no longer be able to offer the AWAs to the employees. That in effect is the relief that we seek in the Federal Court. What will follow from that, we say, is that the question of whether the AWAs constitute acceptable alternative employment will be of no practical utility to the parties, or for any purposes.

PN223

In the meantime, your Honour, as my learned friend Mr Parry told you in making his application for leave on Wednesday, the Commission will be dealing, and I quote, "With fairly convoluted questions of which redundancy provisions and which dispute resolutions apply. There will be fairly detailed legal and factual debate", and we agree entirely that the case will involve considerable complexity. We say that on the basis that we have had the benefit, and we're grateful for the brief opening that my learned friend gave to your Honour on Wednesday, in which the employer's preferred construction of the various industrial instrument was set out. I can indicate to your Honour that we take a very different view and will be making different submissions if necessary as to how the various industrial instruments fit together.

PN224

So they are essentially the legal questions. Then there are also factual questions which clearly arise. Now, precisely how it's put by the applicant, that the AWA amounts to suitable alternative employment to the agreement, we're not aware of at this time, but however it's put, it is going to involve a detailed and no doubt clause by clause consideration of the different industrial instruments to determine that. Now of course, if that has to be done, it has to be done, your Honour, but the point is we say that it will be - if we succeed in the Federal Court, it will be a fruitless exercise to be doing that, when ultimately the question will have no practical effect. It's on that basis, your Honour, that we say the Commission ought not program this matter or list it for hearing until such time as the Federal Court proceedings have been heard and determined.

PN225

Of course, if the matter was to be heard on 13 and 14 November, as has been proposed by the court, then there's no certainty that the matter would be determined then and there. In fact, it's probably quite likely that it wouldn't be determined then and there, but one would anticipate, and we certainly will be asking the court, to make a decision in relation to the application as quickly as the court is able to. So, your Honour, that is our application as to why the matter should not be programmed and the subject of a hearing listing at the present time. Your Honour, in the event that the Commission - - -

PN226

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Rozen, in the event that injunctive relief were granted, that wouldn't preclude Feltex seeking to activate its claim under subclause 48E of the Textile Industry Award, it says. It might simply result in the basis of employment offered being different to that now offered? Is that correct?

PN227

MR ROZEN: That could be right, your Honour, but of course that would then be a different case, as we understand it being put.

PN228

THE SENIOR DEPUTY PRESIDENT: Yes.

PN229

MR ROZEN: A different comparison would be - a different comparator would be involved in looking at the existing conditions and comparing them with what's being proposed.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes. The determination of the matter currently before me with the offer presently made, if that results in a finding that it wasn't acceptable alternate employment, then that would have some utility. If it resulted in a finding that it did, but then injunctive relief were granted, then presumably the company would be bound to offer the employment on even more favourable bases, which would by definitely readily meet the alternate employment requirement.

PN231

MR ROZEN: Yes. I think that's right, your Honour.

PN232

THE SENIOR DEPUTY PRESIDENT: Yes.

PN233

MR ROZEN: Your Honour, in the event that the Commission is against us, then we do have submissions which we would seek to make in relation to the proposed directions. I don't know if that's something I should do now, your Honour, or perhaps if your Honour would prefer to deal with the matters sequentially?

PN234

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps I'll deal with them sequentially. I'll hear from Mr Parry at this stage.

PN235

MR ROZEN: If your Honour pleases.

PN236

THE SENIOR DEPUTY PRESIDENT: And come back if required. Mr Watts?

PN237

MR WATTS: Your Honour, I feel I'm making a habit of this. As you're aware, I'm in another matter just down the corridor. Apologies for making a late appearance. The ACTU simply wishes to put on record its support for the TCFUA's application. If the Commission pleases.

PN238

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Watts.

PN239

MS DE PAZ: Commissioner, the AMWU and the CEPU do support the TCFUA's submission.

PN240

THE SENIOR DEPUTY PRESIDENT: I'm assuming you're authorised to represent the CEPU?

PN241

MS DE PAZ: Yes. I do apologise for not making that clear. Yes, I just spoke to Geoff Borenstein, and we do apologise for not - - -

PN242

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. Mr Parry?

PN243

MR PARRY: If your Honour pleases. I'm not going to raise an issue about your power. Obviously you have power to adjourn proceedings if you so desire. We do come here today, firstly opposing the application, and seeking directions that would allow for this Commission to deal with this application next week. I have a set of directions here. I'm not sure whether your Honour wants them now or at some later time?

PN244

THE SENIOR DEPUTY PRESIDENT: Perhaps at a later time, Mr Parry.

PN245

MR PARRY: As your Honour pleases. There are a number of points we would make in opposition to any suggestion that there be some indefinite adjournment of this application. Firstly, it's my no means unusual that there are proceedings going on in the Federal Court and in the Commission at the same time. The Federal Court almost invariably takes the view that it should continue to exercise its jurisdiction, and in my submission, it would be rare and unusual for this Commission not to continue to exercise its jurisdiction. Your Honour would be well aware of the onuses that exist on applicants with regard to section 111(1)(g) applications in the public interest.

PN246

Secondly, the nature of the proceedings are fundamentally different. This is an application by the receiver for a dispute to be settled as to whether offers of employment to be made are a suitable alternative or materially different, or whatever other instrument applies, and there will no doubt be debate about which instrument, but ultimately each of the instruments that applies has provision in it which says something to the effect that if we provide similar or not materially different employment, the receiver does not have to make redundancy payments. The Commission will decide that question one way or the other. If it decides the proposed offers are not such to meet that standard, presumably it will identify why; then either the offers to be made are amended to meet the concerns identified by the Commission, or they're not made, and there's no offers made at all.

PN247

If the Commission decides the proposed offers are a suitable alternative, then offers will be made. At this stage, absent agreement with the union, the offers will be made as AWAs. We make clear, as we made clear on the record on Wednesday, that the receiver understands that Godfrey Hurst remains open for continuing discussions or negotiations about the terms of the offers to be made. On the other hand, the proceedings in the court at this stage seek an expedited hearing of an application for penalties and an order compelling Godfrey Hurst to employ employees under the existing industrial instruments. As to expedition, somehow somebody has spoken to the court, we don't know who, and there are dates that have cropped up that are being floated around, of 13 and 14 November.

PN248

The solicitors for Godfrey Hurst haven't had any contact with the court. We don't know what the court has been told about this matter. The motion next Wednesday will be strongly opposed. The court is told it is absurd to think that a major piece of litigation, penalties and for an injunction that would have such an impact on the future operations of the business could be properly prepared, run and considered within seven days. It would be a total denial of fairness, we will tell the court, to the company to do so. Inevitably there will be witnesses, much legal debate, and to think that that can all be prepared and argued within that timeframe is absurd. As to the ultimate application, that's going to be opposed. The solicitors for Godfrey Hurst have not taken any detailed instructions regarding that matter.

PN249

As your Honour would appreciate, there's rather a lot going on at the present and the staff of Godfrey Hurst are dealing with an impending purchase of a bankrupt business that it wants to operate. Now, there has to be, in our submission, a sense of reality here. Godfrey Hurst's solicitors advise that there is a completion date for the sale of 24 November. On that date, there will be a purchase of the business of Feltex. Godfrey Hurst wants to thereafter operate the business by getting the confidence of retailers and commercial customers, and that's essential for the survival of the business. Obviously, Feltex lost that confidence and that needs to be regained. Preliminary instructions are that Godfrey Hurst wants industrial and commercial certainty, from having a workforce engaged on clear, fair and intelligible conditions, in enforceable instruments that will operate well into the future.

PN250

As a collective agreement appears unlikely, the real option is an AWA. Now, that's the context in which we're here, and that's why this matter needs to be dealt with urgently. Ultimately, as your Honour has identified, the worst option is that the court makes an order that compels employment. The only argument seems to be put that somehow your Honour's ruling in this is going to be superfluous. We don't accept that, and your Honour has identified correctly, we say, why. There's no prejudice to the TCFUA if this matter proceeds. There's no effect on the court proceedings. Great irony here is that in the biggest transmission case, I think it was Amcor, both the High Court and the Full Federal were critical of Amcor for not going to the Commission and doing precisely what we're doing here. We say we've taken the right approach and we're in the right forum.

PN251

We seek that this application for an indefinite adjournment be dismissed and we seek that the matter be programmed, as we say, next week with some directions about witness statements and submissions. If your Honour pleases.

PN252

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry. Mr Rozen?

PN253

MR ROZEN: Nothing in reply.

PN254

THE SENIOR DEPUTY PRESIDENT: Nothing in reply? I think I'll adjourn for perhaps 10 minutes at this point.

<SHORT ADJOURNMENT [1.04PM]
<RESUMED [1.18PM]

PN255

THE SENIOR DEPUTY PRESIDENT: I have before me an application by the TCFUA for, in effect, an indefinite adjournment of the application by Feltex in the Commission until after the determination of the TCFUA application in the Federal Court of Australia. Whether the application is to be determined as an application pursuant to section 111(10(g) of the Workplace Relations Act in its pre-27 March terms or as a procedural application for adjournment, I'm not satisfied that these proceedings should be adjourned pending the determination of the TCFUA application in the court for these reasons. Firstly, I am not satisfied that these proceedings and those before the court overlap in a manner requiring the adjournment of one or other of the sets of proceedings.

PN256

Secondly, the determination of the application by Feltex before me seeks to exercise rights it argues are available indirectly under clause 48E of the Textile Industry Award, and in my view, the determination of that application has utility. A finding against the company would have effect independent of any determination of the TCFUA application in the court, and a finding in favour of Feltex in this matter would not interfere with such a determination. Thirdly, in my view, the interests of both the employers, Feltex and Godfrey Hurst, and the employees concerned, would be best served by an expeditious hearing and determination of the matter before me, and finally, there is no certainty that the application in the court will be heard and determined expeditiously. Presently, that is a matter for argument before the court.

PN257

For these reasons, I refuse the TCFUA application to adjourn these proceedings indefinitely, or to refrain from further hearing the matters indefinitely until the determination of the union application in the court. I will deal now with the issue of programming, and I think I'll start with you, Mr Parry. Well, I'll leave it open. I won't go back to what was previously submitted in writing to myself and the union. Is that the position which is still pursued by the - - -

PN258

MR PARRY: As my learned friend said to me earlier, I've handed him some proposed directions which are a bit more generous to him, so - - -

PN259

THE SENIOR DEPUTY PRESIDENT: Perhaps you should start from scratch.

PN260

MR PARRY: Perhaps I should hand up the document which contains our proposed directions.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #F4 - PROPOSED DIRECTIONS DOCUMENT OF APPLICANT

PN262

THE SENIOR DEPUTY PRESIDENT: If you just let me read those, Mr Parry.

PN263

MR PARRY: If your Honour pleases.

PN264

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN265

MR PARRY: Those are the directions that we seek, your Honour.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes. Very well, I'll hear from Mr Rozen in relation to that. Mr Rozen?

PN267

MR ROZEN: More generous, sir, but starting from a fairly low base, we would suggest. Your Honour has the previous proposal which your Honour will recall had the applicant's material coming to us at 6 o'clock tonight, or by 6 o'clock tonight. We would respond by 6 o'clock on Monday. What is now being proposed, your Honour, is that the applicant has the benefit of the weekend and that they provide us with their material on Monday at 10 am and that we are expected to reply within 48 hours. Bearing in mind of course, your Honour, that Tuesday is a public holiday and Monday, your Honour, is a day, as I am instructed, on which three of the Feltex sites have RDOs and the employees are not at work, obviously, at those sites.

PN268

Your Honour, once again we adopt, but with application to these proceedings, what my learned friend said only a few minutes ago in relation to the Federal Court proceedings, where it was suggested that a period of 10 days to get ready for a hearing in which there would be complex legal issues, complex factual issues, was - I think the word used was absurd. Your Honour, the issues in this proceeding will be at least as complex and perhaps more so, because it's in the nature of the Freedom of Association provisions, generally speaking, that whilst there may be factual disputes, it seems to us unlikely for there to be much in the way of factual dispute. Whereas here, these proceedings are, as has already been indicated, all about an analysis of the two instruments.

PN269

So the starting point, your Honour, is that these are complex proceedings and there is a lot at stake for all of the parties, and in those circumstances, the Commission's approach to procedural directions should be to ensure that the parties have, within reason, an adequate time to prepare material and to provide it to the Commission so that the case can be adequately and fairly argued on both sides.

PN270

THE SENIOR DEPUTY PRESIDENT: Can you remind me, Mr Rozen, I understand through a very long, convoluted process, where Feltex ends up in terms of what award provision applies. Can you remind me of whether there is any disagreement, at whatever route one gets to the applicable provision, whether there is a provision which provides for in effect non-payment of redundancy in circumstances where alternative employment is provided?

PN271

MR ROZEN: Yes, I can try to, your Honour, in summary form. Our position, your Honour, I think it's common ground that the starting point is the same, and that is the 2004 agreement, the redundancy clause, clause 26, which calls up the terms of the Capital Carpets Industry Pty Ltd Enterprise Agreement Redundancy Provision. There is no such clause in that redundancy agreement, your Honour. What there is, and your Honour will recall Mr Parry putting to your Honour that despite the fact that there is a clause in it entitled, "Alternative Employment Other Support", that it's not an alternative employment clause. There is also in that clause 5, your Honour, which provides:

PN272

Where an employee has been notified of his or her impending retrenchment and an alternative position is available offering a reduced rate of pay or materially different conditions of employment, the employee involved shall have the choice of accepting transfer into such alternative position or opting for redundancy in lieu.

PN273

So we say that that's the starting point, your Honour, for the inquiry. As we understand what's put against us, it is said that - excuse me a moment. We understand what is put against us, your Honour, the employer relies on clause 2(c) of the Capital Carpets Agreement which provides that the Textile Industries Award 1994 for present purposes applies where the agreement is silent. Now, the starting point for the Commission's consideration is to construe what is meant by "is silent" in that sense, whether that means that the redundancy agreement doesn't deal with the subject matter which ought to have been dealt with in the agreement, or would ordinarily be dealt with in the agreement. It's not clear how it is put, as a starting point; this agreement is silent on a matter, and if so, what matter.

PN274

THE SENIOR DEPUTY PRESIDENT: Yes.

PN275

MR ROZEN: So that's our first point of departure, your Honour. Then it is said, assuming for present purposes that the Commission concludes that the agreement is silent, then one goes to the 1994 award and particularly clause 48E. If we understand the case that's put against us, or the case that's put to the Commission, what is said is that if the Commission concludes that 48E applies in the sense that the alternative employment being acceptable alternative employment, then that gives the employer the out from not just paying the redundancy - the severance obligations in the award, but also the considerably high severance entitlements in the Capital Carpets Agreement. Whereas we would say, your Honour, that even in the event that they're successful on their primary argument, what their entitled to is the variance of the general severance pay prescription, ie. the prescription in the award itself, rather than the severance payments in the agreement.

PN276

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN277

MR ROZEN: So in a nutshell, your Honour, obviously those submissions will be developed and they're relatively convoluted, I think is a fair description, given the various instruments that apply, your Honour. But they are matters that we would ultimately seek to agitate. Now, the upshot of all of that, your Honour, is that we say that a suggested period of two days to respond to material in the circumstances is most unfair and puts the union in a very invidious position, particularly bearing in mind, your Honour, that this application was brought to this Commission four days ago, Monday of this week. The applicants had at least those five days to prepare its material; now wants the weekend as well, giving them a full period of seven days and allowing us two to reply. So we would say, your Honour, the starting point as with any directions along these lines would be that we would get a similar amount of time for the time that they have had for preparing their material.

PN278

So we would say the starting point would have to be that we would have a week to respond to their material. Now, if they can't get it to us by - until Monday at 10 am, then we should have until the following Monday to respond in our material. The difficulty, your Honour, is we don't know what's coming, of course. We don't know if we're going to get mountains of witness statements, we don't know what we're going to get. We of course need to be in a position to seek instructions from our members. There are members in different categories of employment. There are members, obviously enough, of different ages and different experience and we will need to pursue and explore whether the proposed AWA, or AWAs - we don't know if there is just one that is to be offered to all the employees in identical terms, or whether there are different AWAs. The document that's been provided doesn't have a rate of pay in it.

PN279

THE SENIOR DEPUTY PRESIDENT: Yes, is that correct? I understood on the last occasion Mr Parry suggested that the AWA had been provided to the union, and was the - had been already provided to the union.

PN280

MR ROZEN: We've seen a document, your Honour, but we would certainly welcome clarification of that, if what is being - if the case is that the same AWA in identical terms is going to be put to all the workers, then that's a matter that - - -

PN281

THE SENIOR DEPUTY PRESIDENT: Well, I presume the preparedness of the company to enter into a collective agreement with the union in the same terms suggested one set of terms reflected in the AWA.

PN282

MR ROZEN: I've learnt not to presume too much, your Honour. One might make that assumption.

PN283

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'd also presume that some of these issues might have been discussed in conciliation otherwise between the parties. But you are pleading total ignorance of what the company is proposing?

PN284

MR ROZEN: They're certainly my instructions, but if that can be clarified, it's a fairly straightforward matter to clarify, and we'd seek that clarification.

PN285

THE SENIOR DEPUTY PRESIDENT: Yes.

PN286

MR ROZEN: It doesn't answer, your Honour, the question about what the rate of pay is because the document that we have seen is silent on that and that's a matter that would, we say, be at the heart of the tasks that the Commission has been asked to meet.

PN287

THE SENIOR DEPUTY PRESIDENT: It seems to be the model these days. The Fair Pay Commission seems to adopt a similar approach.

PN288

MR ROZEN: Makes it fair, your Honour, doesn't it I suppose, if nothing else. If your Honour will excuse me for a moment. The other matter that we would say in response to the proposed directions, your Honour, is that proposed direction 3 is somewhat unusual, certainly in my experience. It would ordinarily be implicit in directions such as 1 and 2, putting the dates to one side for the moment, your Honour, ordinarily be implicit that the respondent would reply to the applicant's case in its outline of submissions. No doubt the applicant's case, one would assume, will set out how it is that the two offers are comparable, and will respond.

PN289

THE SENIOR DEPUTY PRESIDENT: Yes.

PN290

MR ROZEN: In those circumstances, direction 3 would appear in our submission to be redundant.

PN291

THE SENIOR DEPUTY PRESIDENT: You say that information would flow from direction 2?

PN292

MR ROZEN: Yes. We'll meet the case that's put against us, your Honour, put it that way. And if the case that's put against us argues, as one would expect it would, a case that the two are comparable, we'll meet it in terms. And if it doesn't, then we don't want to be saddled with direction 3 where we would ultimately wish to submit that the applicant doesn't make out the case that it seems to.

PN293

THE SENIOR DEPUTY PRESIDENT: Yes.

PN294

MR ROZEN: The final matter, your Honour, is that I understand the dates for the hearing that are set out in proposed direction 4 are not dates that have come from the Commission and of course, the usual starting point for directions in this nature is to work back from a likely hearing date. I don't know if your Honour is in a position to indicate to the parties, either on or off the record, what dates your Honour would be able to accommodate the parties, but that would obviously provide some assistance to us in the ordinary way in working out directions.

PN295

THE SENIOR DEPUTY PRESIDENT: Yes. I'm not at this point. There may well be discussion of that nature at some point.

PN296

MR ROZEN: Your Honour, beyond that I don't think there's a great deal I can say, except to emphasise that the proposed timeframe is totally inadequate from our point of view.

PN297

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Parry?

PN298

MR ROZEN: Sorry, there is one other matter while I'm on my feet, your Honour.

PN299

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rozen?

PN300

MR ROZEN: Your Honour may have seen amongst the various letters that are flying thick and fast a letter dated 3 November from the union to Mr Hartigan of Clayton Utz Lawyers, seeking various documents. A copy of that as I understand it was sent to the Commission this morning.

PN301

THE SENIOR DEPUTY PRESIDENT: Do you want that marked, Mr Rozen?

PN302

MR ROZEN: I think it probably would be helpful, your Honour.

EXHIBIT #TCFUA6 - COPY LETTER FROM UNION TO CLAYTON UTZ DATED 03/11/06

PN303

MR ROZEN: We would assume, your Honour, that - I should withdraw that. Those documents would assist us in preparing our material, your Honour, and we don't want to have to ask the Commission to issue a summons for the production of those documents, but in the event that they're not provided to us, or an adequate explanation provided to us as to why we shouldn't get them, then we may seek to do that, your Honour.

PN304

THE SENIOR DEPUTY PRESIDENT: Yes.

PN305

MR ROZEN: I don't think I need to trouble your Honour with the detail about that.

PN306

THE SENIOR DEPUTY PRESIDENT: Thank you very much.

PN307

MR ROZEN: If your Honour pleases.

PN308

THE SENIOR DEPUTY PRESIDENT: Mr Parry?

PN309

MR PARRY: Your Honour, as I indicated earlier, the dates on which the sale documents indicate the transmission of the business will occur is Friday, 24 November. If there are to be offers of AWAs made, they need to be made seven clear business days before that. Now, that takes, on my rough calculations, back to around, I think, 15 November. Seven clear days. So that's the sort of timeframe in which the Godfrey Hurst company is in, in respect of offers of employment.

PN310

THE SENIOR DEPUTY PRESIDENT: Were you presuming for what you I think on the first day described as a complex matter an extremely quick turnaround in the decision at the time, even on your dates?

PN311

MR PARRY: Well, can we say, your Honour, that negotiations, firstly the complexity, there's two aspects of this case where there's going to be debate presumably. One is the appropriate instrument to apply and I think although your Honour has heard our view and your Honour has just heard the opposing view. Now, they can be expressed fairly straightforwardly and your Honour will make a choice between one of them and then the matter can proceed on that basis. Your Honour will then hear the second aspect of the case will of course be the offer of the AWAs and there's been two forms of AWAs provided, your Honour, and there's absolutely no secret about this, one for Hallam which involves a 12 hour shift and one of the other sites which has eight hour shifts and apart from that they're essentially the same.

PN312

So those are the documents that have been provided and they've been debated and discussed these terms and conditions throughout October. So to be half suggesting that something new is going to fall out is a little bit rich in our submission. Secondly, so then you will have our material will not be unduly complicated on top of that. It will basically be a couple of witness statements which describe the operations, describe the sale and attach the documents, attach the various documents. Now, ultimately people will make submissions about the contents of those documents. The material is not complicated. It will be provided as I have said and we asked for Monday morning.

PN313

If your Honour decides it has to be provided sooner such as on the weekend, well, we'll comply with whatever directions your Honour.

PN314

THE SENIOR DEPUTY PRESIDENT: Well, I was going to ask you, the initial directions proposed that you provide the material by some time today I think some time today I think, late today. What is feasible from the applicant's perspective?

PN315

MR PARRY: Well, we will get everything we possibly can to the union today. Now, that's not to preclude that there might be something we don't provide on Monday morning but we would want to get the bulk of our material to the union today.

PN316

THE SENIOR DEPUTY PRESIDENT: And by today?

PN317

MR PARRY: By 6 o'clock I think, your Honour.

PN318

THE SENIOR DEPUTY PRESIDENT: By 6 pm. Yes.

PN319

MR PARRY: Now, that can be provided to the union. As to the intervener's name I have to wait for the weekend or Monday morning. I'm not sure that service on the interveners is absolutely essential today but that's a matter for your Honour.

PN320

THE SENIOR DEPUTY PRESIDENT: Will that material include number 1 and does that need to include the sorts of materials referred to in TCFUA6?

PN321

MR PARRY: Well, your Honour, if we go to that, in a funny way it requires the respondent which is the TCFUA, but leaving aside that, it refers to in the first dot point offers of employment. As your Honour has been told repeatedly, there haven't been offers of employment made. What have been provided is a draft AWA which has been provided to all employees at the sites. Now, number 1 - - -

PN322

THE SENIOR DEPUTY PRESIDENT: Well, just before you go on, in light of that I imagine Mr Rozen at some point will jump to his feet and seek to amend that to any documents, et cetera, relating to or about the draft AWAs.

PN323

MR PARRY: All right then. Well, let's assume it's so led, but how does that bear on the question that's in dispute? Your Honour, the question in dispute here is a comparison of what we propose to offer which will be made clear in the documents we provide and comparing that to the existing terms and conditions. Now, I'm not sure how this broad ranging discovery question of all these other documents, perhaps drafts, perhaps other analyses relate to that question. How are they going to be of assistance to your Honour in making that comparison? So we simply don't see how that first dot point deals with relevant material.

We note that we will provide the relevant extracts of the sale agreement that deal with the employment offers and the employment agreement between Feltex and Godfrey Hirst, but we do oppose this sort of fishing exercise which will cover on its face privileged documents. It will cover a range of other documents which really aren't going to assist your Honour and in making the decision which is the assessment that you will be required to make under the industrial instruments. Perhaps, your Honour, dealing with the second dot point, that concerns again various descriptions of a document outlining these people to whom offers of employment. Well, as I've indicated, there have been offers of employment made. People in the factories and operations have been provided with a copy of the draft AWA and asked for their comment and input and we've received some comment and input and there's been some improvements made hopefully to address those and we'll be providing that to the Commission and to the other side today.

PN324

THE SENIOR DEPUTY PRESIDENT: The AWA will be provided?

PN325

MR PARRY: Yes.

PN326

THE SENIOR DEPUTY PRESIDENT: Well, I perceive this to be going to in effect the impact at least of the proposed redundancy arrangements upon employees which would require some information as to date of commencement, rates of pay and the like in order to make some assessment of any change in the redundancy arrangements proposed in the offer of employment - sorry, in the AWA.

PN327

MR PARRY: Well, I suppose in simple answer, there isn't a document as I would understand simply summarising that material. As I say, the position is that the offers have been made. The document has been provided to the employees of the factories.

PN328

THE SENIOR DEPUTY PRESIDENT: You say there's a document in place which would deal with the effect of that on members of the workforce?

PN329

MR PARRY: Well, there will be documents that we will produce that will compare the AWA proposal and the existing terms and conditions which are as enshrined in the industrial instruments, in particular the Feltex agreement.

PN330

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I understood and it might be not from this hearing but from the relatively extensive media that one of the issues may well be, and if it is a difference it needs to be argued, change in the capping arrangements for redundancy which would have different effects upon different employees, the assessment of which would require some knowledge of the period of service and the like.

PN331

MR PARRY: Yes, your Honour.

PN332

THE SENIOR DEPUTY PRESIDENT: And that seems to be going to that sort of information in part of the - - -

PN333

MR PARRY: Well, I suppose we've obviously heard what your Honour has said but to be asked to produce a document that contains that material in summary form, that's not - we can't produce something we don't have, I suppose that's the long and the short of it. But a document outlining seems to be suggesting that we create such a document and, well, as I've said, we've heard what your Honour has had to say about that.

PN334

THE SENIOR DEPUTY PRESIDENT: Well, perhaps we can get some elaboration from Mr Rozen at some point and come back to you on that. I must say on reading the correspondence my view is perhaps that was going to the union is seeking to obtain information which would allow it to assess the effect of the proposed AWA against current terms and conditions.

PN335

MR PARRY: Yes, your Honour, I understand that. But as to there being a document outlining that, that's I suppose what I'm dealing with. We've noted your Honour's observations and we note what Mr Rozen said but we can't produce something that I suppose we don't have and that's a document outlining those things. I mean if it's possible a document can be created that contains dates of commencement but I'm not sure of the other matters. I simply can't go any further than that.

PN336

THE SENIOR DEPUTY PRESIDENT: How many employees are we talking about?

PN337

MR PARRY: Your Honour heard that, 320 or so.

PN338

THE SENIOR DEPUTY PRESIDENT: Yes. I was hoping it wasn't a question directed to me. Yes, thank you.

PN339

MR PARRY: So your Honour, we seek that this matter be dealt with in accordance with our proposed directions. The reason we were happy to do what we can about providing as much as we possibly can today, as I've outlined, with regard to number 1. Number 2, well, if it's all provided today that makes that time frame much more within the perimeters that my learned friend was referring to. As to the third one, well, it seems to be the public and negotiating position of the union has been that the offer isn't equivalent. Now, we'd like to know why. We just don't - just the blanket public statement that it's not equivalent - - -

PN340

THE SENIOR DEPUTY PRESIDENT: Presuming that's going to arise out of 2, wouldn't it? I mean the union would be struggling if its submission was it's not equivalent and they sat down, they're going to have to address where it isn't equivalent, aren't they, in their submission?

PN341

MR PARRY: Yes, your Honour.

PN342

THE SENIOR DEPUTY PRESIDENT: If they wish to have any hope of succeeding.

PN343

MR PARRY: Well, we would certainly think that that's implicit in the suggestion of outline of submissions I suppose.

PN344

THE SENIOR DEPUTY PRESIDENT: Yes.

PN345

MR PARRY: To highlight the importance of it as we see it.

PN346

THE SENIOR DEPUTY PRESIDENT: Yes.

PN347

MR PARRY: As to the arbitration dates, your Honour, well, we're available next Wednesday afternoon and we pick the afternoon because there's the proceeding before Marshall J apparently in the morning, Thursday morning, Friday, Saturday, Sunday. I'm not sure if there's going to be that much witness evidence but there will be some. I think there will be a lot of argument about what means what.

PN348

THE SENIOR DEPUTY PRESIDENT: Yes. And you would anticipate two witnesses giving evidence basically as to the nature of the operations and attaching relevant documents and identifying relevant documents?

PN349

MR PARRY: We will have a short statement from the receiver saying what's going on briefly. That is, there's been a sale and so forth. Secondly, from the company secretary that has been involved in the negotiations and the drafting of the document and to why the document has ultimately got to the form it has, and the third possibility and I haven't explored this fully at this stage, is somebody from the factory operations simply describing the operations in the factory and how the implementation of the AWA if it is so implemented would affect things. So that's a sort of a very rough summary sort of evidence we'd call. Now, we don't see them being huge statements. They'll basically be as I've described.

PN350

THE SENIOR DEPUTY PRESIDENT: Yes.

PN351

MR PARRY: I'm not sure I can assist your Honour much further.

PN352

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry.

PN353

MR PARRY: If your Honour pleases.

PN354

THE SENIOR DEPUTY PRESIDENT: Mr Rozen, may I ask you about in particular the 3 November letter in the first dot point and if you could elaborate further on the second as well?

PN355

MR ROZEN: Your Honour, I wonder if I could just seek your Honour's indulgence and just have a few minutes?

PN356

THE SENIOR DEPUTY PRESIDENT: You may. Perhaps I will raise with you other matters.

PN357

MR ROZEN: Yes, your Honour.

PN358

THE SENIOR DEPUTY PRESIDENT: Well, you have heard what Mr Parry has said about the capacity to - well, one, the nature and extent of the evidence they would bring and the capacity to get most if not all of that to you by 6 o'clock tonight, how does that affect your submission?

PN359

MR ROZEN: I will need to take some instructions on that.

PN360

THE SENIOR DEPUTY PRESIDENT: How long do you need?

PN361

MR ROZEN: Five minutes.

PN362

THE SENIOR DEPUTY PRESIDENT: Five minutes, very well. I will adjourn until 2 o'clock.

<SHORT ADJOURNMENT [1.54PM]
<RESUMED [2.04PM]

PN363

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rozen.

PN364

MR ROZEN: Thank you for that opportunity, your Honour. Your Honour, it's important not to lose sight of what's at the heart of this case and it's this, the employer has made a choice to try and avoid the operation of the transmission provisions in the Workplace Relations Act. It has chosen to offer these AWAs or proposed to offer, whatever it is, the AWAs in advance of the transmission and it has negotiated the settlement date. We have asked several times what the settlement was and we were told for the first time today that it's 24 November. Now, that's not a date of our making or a date of the employees making. That's a date that's been agreed to between the purchaser and the vendor.

PN365

THE SENIOR DEPUTY PRESIDENT: Yes.

PN366

MR ROZEN: Secondly, they've chosen the form of the conditions of employment that they're offering. They could have offered identical conditions to those which are presently in existence and they could then have some comfort that they meet the obligation in the sale document being suitably alternative, or whatever the characterisation is. They haven't done that. They've offered different conditions, significantly different we say in a number of important and substantive effects, and once again they're not issues that are of our making or of the employees making.

PN367

Thirdly, your Honour, and this is a very important point in terms of the programming of this matter, notwithstanding what fell from my learned friend's lips on Wednesday about the complexity of the case, your Honour is now being told it's actually quite a simple case of looking at two documents and making a comparison. In our submission it's nothing of the sort. The workers are individual workers, many of whom are paid at rates of pay which are in excess of those in the agreement. Different workers are on different rates of pay and have different relevant factual circumstances with shift arrangements and classifications.

PN368

Your Honour, the classifications in the proposed document are different from the classifications that are currently in operation. Making a comparison has to be a comparison between an apple and an apple, your Honour, not between an apple and an orange and it's not just a simple matter in our submission of making a comparison between two documents. And the significance of that from our point of view in meeting the employer's case is that they might be able to present a case based on two or three witness statements, we need to talk to the workers. We need to take instructions from them to be able to place evidence before the Commission which identifies their individual circumstances so that the Commission can make the comparison in a real and practical way rather than in an abstract and theoretical way between two documents.

PN369

Many of the workers don't have English as a first language, your Honour. Many of the workers are - well, the workers are working in 24 hour operations where we have to gain access to them and interview them in order to take instructions and prepare witness statements to set out those circumstances. The notion that we can do that in two days is fanciful and completely unfair. It's been said, your Honour, that we'll get some, perhaps most of the material by 6 pm today and the rest will come on Monday morning. That, it seems, is being done to convince your Honour that time for our reply ought to start from 6 pm today. In my submission, your Honour, time ought to start from when we have all of the material that the applicant is going to rely on.

PN370

If they can get some of it to us today that would be appreciated but the suggestion that the time would run from the time we get some of the material is unfair and is not in accordance with the normal practices of this Commission or courts that I appear in. It's well understood, your Honour, in my submission that time runs from when you've got all of the material that the applicant is going to rely on. If that's Monday morning, it's Monday morning. But it is unfair for time to start to running at a time when we get some of it today.

PN371

Your Honour, my learned friend has not clarified and we don't know whether the material that's going to be provided to us will clarify what the rate or rates of pay will be in relation to the AWAs and we are a little bit confused to say the least, your Honour, on whether the document that is going to be relied upon, the AWA document, is a document that's set in stone or whether, as has been suggested to our members on numerous occasions, remains something that can be negotiated and that's a matter that we say needs to be clarified so that the Commission knows whether it is comparing something that is set and won't be changed or whether it's something that may be changed depending on negotiations.

PN372

If it's something that may be changed then the Commission has a difficult task between comparing what currently exists with what may exist in future. Turning, your Honour, to TCFUA6 and your Honour has asked me to address the three categories of documents that are detailed there. If I can come back to dot point 1 in a moment, your Honour, and deal with dot points 2 and 3. Your Honour, as your Honour has anticipated, the relevance of that information is that it enables a comparison to be made not only about redundancy entitlements but of course they're significant matters for comparison of redundancy entitlements, but also other entitlements and matters such as shift arrangements for example. The Commission needs this information.

PN373

THE SENIOR DEPUTY PRESIDENT: What's the difference between dot point 2 and dot point 3? I see, the second goes to proposed arrangements, yes.

PN374

MR ROZEN: That's right, yes. So similar information to enable a comparison to be made between current and proposed, your Honour.

PN375

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN376

MR ROZEN: Now, it's said against us that the request requires the production of a document. We would be most surprised, your Honour, if some analysis of these matters hasn't already been done by Feltex. But be that as it may, we would seek at the very least to amend dot point 2 so that it reads documents detailing the list of matters, so too with 3, documents detailing. But your Honour, we would also press that that information be provided to us and to the Commission in summary form. We don't have that information and all the detail that is necessary to make a comparison.

PN377

THE SENIOR DEPUTY PRESIDENT: Yes.

PN378

MR ROZEN: We would also seek to amend the reference to offers of employment to be a reference to the AWA dated 30 October 2006.

PN379

THE SENIOR DEPUTY PRESIDENT: In the first dot point, correct?

PN380

MR ROZEN: In all of them, your Honour.

PN381

THE SENIOR DEPUTY PRESIDENT: I see, yes. Offer of employment, yes.

PN382

MR ROZEN: Turning to the first dot point, your Honour, we'd say the relevance of the documents described there goes to what if anything the employees have been told, for example, about whether or not the terms are negotiable. We say that's a relevant matter for the Commission to know and it's information that ought to be in front of the Commission.

PN383

THE SENIOR DEPUTY PRESIDENT: The scope of what is sought there goes well beyond that, does it not?

PN384

MR ROZEN: It does, your Honour. Can I make this suggestion, your Honour, subject to your Honour's view, in light of what's been said about dot point 1 we would perhaps have an opportunity to revisit the range of documents that sought there and we can do that this afternoon and I can indicate that would be with a view to narrowing the range of documents.

PN385

THE SENIOR DEPUTY PRESIDENT: Well, from what you've said, it's certainly any documents, correspondence, emails, memorandum communicated to employees in relation to offers of employment made by Godfrey Hurst and/or Feltex to current employees for that period, is it not?

PN386

MR ROZEN: Can I just clarify whether - - -

PN387

THE SENIOR DEPUTY PRESIDENT: Yes.

PN388

MR ROZEN: Your Honour, I'd like the opportunity for me to take instructions briefly in relation to the re-wording of dot point one, if I could do that.

PN389

THE SENIOR DEPUTY PRESIDENT: Very well. How long do you require?

PN390

MR ROZEN: I didn't wish for your Honour to stand the matter down to achieve that.

PN391

THE SENIOR DEPUTY PRESIDENT: Yes.

PN392

MR ROZEN: We would seek to amend dot point 1 to read as follows, your Honour. Any documents, correspondence, emails, memorandums relating - sorry. I just want to get this right, your Honour - recording communications to employees about the basis of employment made by Godfrey Hurst and/or Feltex Carpets, and so on, to, yes, current textile work employees.

PN393

THE SENIOR DEPUTY PRESIDENT: Sorry, what was the effect of the discussions at the bar table?

PN394

MR ROZEN: Drafting on the run by a committee is always challenging, your Honour. Perhaps if I could go back to my original suggestion, your Honour. I think it would be in everyone's interest if we re-drafted that perhaps from scratch and presented that to your Honour and to the parties. Perhaps after your Honour adjourns today we can undertake to do that within 15 minutes of your Honour adjourning.

PN395

THE SENIOR DEPUTY PRESIDENT: Yes.

PN396

MR ROZEN: It's not a matter that should hold up your Honour's consideration of the other matters. I think that's all I needed to say in response, your Honour. And we reiterate our initial submission that we would need at least a week from Monday to reply to the material.

PN397

MR PARRY: Your Honour, firstly, with regard to the first category of documents as amended, we will endeavour to - we think we've got an idea of what is sought there, that is, in respect to communications to employees. What we would suggest is that my learned friend write to us specifying that category, and we don't see an issue with providing those documents. Indeed we'll probably be attaching them to whatever statement we provide anyway.

PN398

THE SENIOR DEPUTY PRESIDENT: Yes. So you're suggesting no direction at this stage, and the union can renew its application if it requires it, and if that has any associated applications to it they would be dealt with.

PN399

MR PARRY: Yes, your Honour. Secondly, with regard to the second list, we will present, or prepare a document which will have a title and a date of commencement. As to the other matters, your Honour, number 3 through to 7, the position of Godfrey Hurst, as I understand it, is that none of those matters would change, or employment by Godfrey Hurst under the terms of the AWA.

PN400

THE SENIOR DEPUTY PRESIDENT: So you're suggesting dot points 2 and 3 would yield exactly the same information?

PN401

MR PARRY: No, not 1 and - I'm sorry, number 3 through to 7 - well, sorry, yes, your Honour. Yes, I understand. Yes, your Honour, they'll be exactly the same. The people will turn up, they will work in their current position, and they will be paid their going rate on the shift which they're presently on.

PN402

THE SENIOR DEPUTY PRESIDENT: With no change in the hourly rate?

PN403

MR PARRY: No change in the hourly rate, no. So we just make that clear. If your Honour pleases.

PN404

THE SENIOR DEPUTY PRESIDENT: Can I ask whether the company - presumably it does - have information for each employee describing all those matters, 3 to 7?

PN405

MR PARRY: Well, I don't know what the receiver has. Godfrey Hurst say they don't have a document which summarises that material. I'm instructed it's not currently on the computer system. But I suppose, as I said, the position of Godfrey Hurst is that 3 to 7 don't change on taking up employment on the AWA. That's the intent of the document.

PN406

THE SENIOR DEPUTY PRESIDENT: So for the union to ascertain the effect on particular employees it would need to speak to each employee to obtain that information? That's really the issue I'm getting at.

PN407

MR PARRY: Well, your Honour, what would be the effect if things don't change? I mean, I'm not sure that those matters don't change, what the effect is going to be, and what producing that document is going to show. It's going to show - - -

PN408

THE SENIOR DEPUTY PRESIDENT: I see what you say.

PN409

MR PARRY: And then there's not going to be an effect on any of those matters that are so identified there.

PN410

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Parry. Mr Rozen, in light of the position of the company the numbers of those matters would vary between the second and third dot point. Does the provision of the full name and title and commencement date satisfy what you need to defend the application?

PN411

MR ROZEN: I don't think it does, your Honour, because as I'm instructed, under the proposed AWA the location site of a worker can be unilaterally changed. That's one of the provisions of the AWA. And in those circumstances, in my submission, we need to know, the Commission needs to know the relevant matters set out in 3 to 7.

PN412

THE SENIOR DEPUTY PRESIDENT: And if the company were to give an undertaking that that wouldn't occur, no one would change their location, would that obviate the need for that material?

PN413

MR ROZEN: And it's the same with the classification structure. Now, if they're going to start giving those sort of undertakings on the run, then it's a changing case. That's the concern we'd have about that. We'd welcome such undertakings, but the effect they have on the comparison the Commission has to take, becomes an issue. We would also make the observation, your Honour, that one would expect most of that information would have been on the pay slip that the workers get.

PN414

THE SENIOR DEPUTY PRESIDENT: One would have thought in the normal course it would be recorded somewhere within the company.

PN415

MR ROZEN: Surprising if it isn't. I'm instructed the information has been compiled.

PN416

THE SENIOR DEPUTY PRESIDENT: Very well. That's all, Mr Rozen?

PN417

MR ROZEN: Yes, thank you.

PN418

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, I intend to adjourn this matter until 1 pm on Thursday, 9 November, continuing at 9.30 on Friday,
10 November, with the possibility of later than usual sittings on either date and, if necessary, proceeding into Saturday, 11 November. The matter will be relisted subject to the following directions.

PN419

1. The applicant will file in the Commission and serve on the respondent an outline of submissions and witness statements to the fullest possible extent by 6 pm on Friday, 3 November 2006.

PN420

2. The applicant will file in the Commission and serve on the respondent any outstanding materials if any by 10 am on Monday 6 November 2006.

PN421

3. The applicant will serve on the intervenors an outline of submissions and witness statements by 10 am, Monday 6 November.

PN422

4. The respondent and intervenors will file in the Commission and serve on the applicant and each other their outlines of submissions and witness statements by 6 pm on 8 November 2006.

PN423

I decline to issue the direction proposed by the employer in direction 3. I think that material naturally flow from the respondent's materials filed. If the respondent fails to disclose the bases upon which it argues that the terms of employment provided do not constitute acceptable alternative employment, it will obviously carry the risk of doing so.

PN424

I accept that the parties will by agreement seek to finalise an arrangement by which documents, correspondence, emails, memoranda in the possession of the applicant and recording communications to employees about the basis of employment will be provided. In the event that it does not occur in an appropriate and timely manner then obviously the TCFUA can renew its application. I understand that the company will provide a document outlining the full name and title and date of commencement of each employee. Again, if that does not occur the TCFUA can renew an application in respect to that matter.

PN425

The TCFUA is in a position to seek further direction or summons in relation to the remainder of the material in the second and third dot points of the 3 November document. If the material sought is relevant in light of the terms and conditions of employment proposed for the employees a further direction may well be given in those circumstances, and TCFUA will be open to seek to make an application for a period of time to deal with any relevant material arising from that material.

PN426

It follows that the company should give further consideration to any material there identified which might become relevant in terms of the terms of employment offered to the employees, and understand that a further application may be made by the TCFUA if relevant material within that description is not provided by the employer.

PN427

I've reached this decision having regard to my view, the interests of both employees and the companies of having these matters dealt with expeditiously, having regard also to the nature of the material which will be in issue in the proceedings, that being essentially the interpretation of the relevant industrial instruments in the first instance, and secondly, an assessment of the terms of alternative employment offered for the purpose of determining whether the employment constitutes acceptable alternative employment.

PN428

I will now adjourn until 1 pm on Thursday 9 November.

PN429

MR PARRY: If your Honour pleases, I just indicate that I think I have something that starts at 2 o'clock in the Federal Court on the Thursday. I think that's why we put in our directions we prefer to not have Thursday between two and four. So is it possible to start on Thursday two hours earlier and adjourn on that day? Is that asking too much of the Commission?

PN430

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I'm totally confused.

PN431

MR PARRY: I have something else in the Federal Court on that day.

PN432

THE SENIOR DEPUTY PRESIDENT: On Thursday the 9th?

PN433

MR PARRY: Between two and 3.30.

PN434

THE SENIOR DEPUTY PRESIDENT: I see. You've only sought the morning of that day?

PN435

MR PARRY: Yes, we sought the morning of that day.

PN436

THE SENIOR DEPUTY PRESIDENT: That creates a significant difficulty for me. I'm not proposing to take the time forward. When do you conclude in the Federal Court, Mr Parry?

PN437

MR PARRY: Well, perhaps, your Honour, I'll communicate with my learned friend later in the day, and I'll make some inquiries about that matter now.

PN438

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Rozen, are you prepared to start - - -

PN439

MR ROZEN: Your Honour, I was going to raise the matter of counsel availability, but I didn't think it carried much weight here. But I'm not available at all on the 9th, and whilst I am being led in this matter by Mr Borenstein, I don't know what his position is, and my instructors don't either. I am available on the 10th. A simple thing might be for the matter to commence on Friday the 10th.

PN440

THE SENIOR DEPUTY PRESIDENT: Is that a better course, Mr Parry, we commence on, well, let's say 9 o'clock on the 10th, and proceed as long as we need with the possibility of going into Saturday?

PN441

MR PARRY: Your Honour, appreciating the availability of counsel isn't a crucial thing, is your Honour's outline two possible dates - is it possible, your Honour, to leave the listing as of 1 pm on Thursday, and if I could find out about this thing in the Federal Court?

PN442

THE SENIOR DEPUTY PRESIDENT: Well, what I will do is retain one thing at a time on the 9th. If there's agreement between the parties, through counsel, that I should delay the start until Friday I'll do so.

PN443

MR PARRY: If your Honour pleases.

PN444

MR ROZEN: I think I might be able to indicate that now, your Honour. I'm committed all day on Thursday. And if counsel availability is to be a matter of relevant consideration that's got to work for both sides.

PN445

THE SENIOR DEPUTY PRESIDENT: Well, it has in the sense that if there's a joint position of counsel I'll accommodate it, otherwise I'll simply start at 1 pm and leave it there.

PN446

MR ROZEN: I'm just indicating my position is not going to change between now and later this afternoon. I cannot commit to anything on the Thursday.

PN447

THE SENIOR DEPUTY PRESIDENT: Well, I either ignore counsel all together or go to the 9th - or go to the 10th, sorry.

PN448

MR ROZEN: It's a matter for your Honour. If counsel availability is going to be an issue it's got to work both ways, that's all I'm saying.

PN449

THE SENIOR DEPUTY PRESIDENT: I understand that, and that's why if there was a joint position of counsel I would accommodate that. Very well, I'll commence the hearing at 8.30 on Friday the 10th, and sit as long as we need to sit, and into Saturday if we need.

PN450

MR ROZEN: Sorry to delay this, your Honour, but if that's to be the case, and the original directions were to be that we would file our material in effect half a day before the commencement, if we could have until 1 o'clock on the Thursday that would leave the respondent and the Commission in the same position, and will assist us.

PN451

THE SENIOR DEPUTY PRESIDENT: Is there any difficulty, Mr Parry, if I alter the direction, that the respondent file, not, I might say, to that time, but to 10 am on Thursday 9 November? I'll amend the direction to that effect.

PN452

MR PARRY: If your Honour pleases.

PN453

THE SENIOR DEPUTY PRESIDENT: Very well, I'll now adjourn.

<ADJOURNED INDEFINITELY [2.38PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TCFUA5 - BRIEF OUTLINE OF SUBMISSIONS PN189
EXHIBIT #F4 - PROPOSED DIRECTIONS DOCUMENT OF APPLICANT PN261
EXHIBIT #TCFUA6 - COPY LETTER FROM UNION TO CLAYTON UTZ DATED 03/11/06 PN302