AG2005/8660, Transcript of Proceedings [2006] AIRCTrans 23 (5 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13894-1

SENIOR DEPUTY PRESIDENT LACY

AG2005/8660

APPLICATION BY SILVERTON TRAMWAY COMPANY LTD
s.170MD(6) - Variation of certified agreement to remove ambiguity
(AG2005/8660)

MELBOURNE

1.01PM, THURSDAY, 22 DECEMBER 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Hearing continuing

PN1

MR C O'GRADY: I seek leave to appear as counsel on behalf of Silverton Tramway Company.

PN2

MR M BARNES: I appear on behalf of the applicant for the adjournment, the RTBU.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Barnes. Yes,
Mr Barnes, what's the - by the way, both parties have leave to appear. What's the grounds for the adjournment? I have read the material that you've filed by the way.

PN4

MR BARNES: Yes, thank you, your Honour. Might I just say at the outset I had some trouble hearing my friend when he responded to you regarding his appearance. I hope you can all hear me.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, you're quite loud and clear. We'll arrange for the loud speaker or the microphone to be moved here.

PN6

MR BARNES: Yes, thank you, your Honour. The basis of our application is essentially one of ensuring we're fully and properly on notice of the case we have to meet. Briefly put, the first notice the union had of such an application was a complimentary copy of the proposed proceedings that was sent on 12 December and thereafter there has been what I might loosely call an arm wrestle between the parties as to whether the proceedings should be adjourned or maintain the hearing date. We have been served with no supporting material other than the application, no outline of submissions, or no statement of intention of whoever we have reliance upon any evidence to support the alleged ambiguity.

PN7

We're uncertain as to the anticipated listing of the matter for hearing because there's been some suggestion that in fact it's not only listed just for one day on the 9th but also listed for the 10th, so we really don't know what we are meant to meet. We are mindful that the respondent - sorry, Fisher Cartwright Berriman in their correspondence suggested that the matter is, not their words precisely, but of short compass should be dealt with reasonably spritely and should proceed in everybody's interests as a matter of urgency on the 9th and I'm just paraphrasing their letter addressed to yourself of 19 December.

PN8

We take issue with the notion of urgency and we do so with respect because the parties had some discussions direct this morning and as we understand the employer's position the catalyst for the application before you now is the proposed sale of what I'll loosely call the business. But that said, it was put this morning as we understand it that the proposed sale is not contingent upon your hearing and determining this application for variation. The transaction date is nominated as
30 December but it appears from some other information we have some doubt as to whether that is the actual date. It could be that date or it may be some date subsequently.

PN9

THE SENIOR DEPUTY PRESIDENT: Sorry, what date did you say?

PN10

MR BARNES: The correspondence from Fisher Cartwright Berriman suggests:

PN11

We anticipate settlement of the transcript of 30 December.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR BARNES: But further information we received today suggests it might not be that date, it may be subsequently possibly later into January. So for our part being mindful of the principles of equity and fairness that are embedded in sections 110 and 111, we say we should be looking to deal with the matter in a procedurally regular way and, your Honour, you know only too well when you're dealing with issues of uncertainty it's a two tier process. There doesn't appear to be any timetable in this matter that addresses that tiering issue. Firstly, is there an ambiguity or uncertainty that warrants consideration, and secondly, subject to evidence, seeking to glean the parties intentions.

PN14

So for our part we are uncertain as to whether the Commission is minded to be seeking to deal with both matters virtually back to back and if so that would raise further issues of evidence, but apart from the bare bones that are provided by the applicant in their application and we've sought in conference today to glean from the applicant, the actual employer, what is the alleged ambiguity or uncertainty and no assistance was given in that meeting as to those issues directly between the parties.

PN15

Noting that you've read the paperwork that we have submitted care of your associate, your Honour, I don't want to unduly drag this issue out. We say it's simply an issue of fairness and proper case management.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thanks, Mr Barnes.
Mr O'Grady, what do you say?

PN17

MR O'GRADY: Yes, thank you, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: I think when the camera swings around it's probably more appropriate if you sit down, Mr O'Grady, otherwise our people in Sydney won't see you.

PN19

MR O'GRADY: As your Honour pleases. Your Honour, we start from the position that under section 111(1)(t) the Commission to, among other things, do all such things as necessary and expedient for the speedy and just determination for the industrial dispute, and of course industrial dispute would extend to an application of this type. Your Honour, the position that we're in is that it is anticipated that there will be an exchange of contracts with respect to this transmission on 30 December or shortly thereafter. It is irrespective of whether it occurs on 30 December or shortly thereafter.

PN20

My instructions are that the transmission of the business is to take place on
16 January. Now, your Honour, the reason for our application was that whilst we say the better view is that anybody who is offered employment by the transmittee on terms and conditions that are no less favourable would not be entitled to a severance payment if they were to refuse that offer of employment. There might be some scope for debate about that and what we sought to do, your Honour, was clarify that issue through the proposed variation that we appended to our application and your Honour will have noted that that proposed variation is substantially similar to the current redundancy test case standard. There are some changes and those have been flagged in the application itself.

PN21

THE SENIOR DEPUTY PRESIDENT: That's been served on the other side?

PN22

MR O'GRADY: As I understand it, your Honour, yes. Yes, it has. What we wanted to avoid, your Honour, is a situation where as at 16 January the employees who have been offered employment with the transmittee decline to accept such offer of employment in the belief that upon them rejecting that offer they might be entitled to a severance payment and there are two adverse consequences that flow from that, your Honour. One is the purchaser of the business is going to be expected to be able to run the business from 16 January and if it doesn't have employees to work for it it won't be able to do that or do that to the requisite standards.

PN23

The second issue, your Honour, is that an employee who rejects an offer of employment made by the purchaser of the business may well find that they have done themselves out of both a job and any severance entitlement because as we say, properly construed the current provision would not give rise to any severance payments where an offer of comparable employment was made. What aggravates that concern, your Honour, is that it is clear from the material which the union served on us this morning that we're being - - -

PN24

THE SENIOR DEPUTY PRESIDENT: The material the union provided or - - -

PN25

MR O'GRADY: Yes, the material the union provided.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR O'GRADY: That we're currently being subjected to what can only be described as a scare campaign by the union both in respect of this particular variation and in respect of the basis upon which the purchaser intends to offer employment for the employees concerned. If I can take your Honour to exhibit RTBU8 - - -

PN28

THE SENIOR DEPUTY PRESIDENT: What I might do is mark the correspondence provided by the solicitors White Barnes for the RTBU.

EXHIBIT #RTBU1 CORRESPONDENCE PROVIDED BY WHITE BARNES FOR THE RTBU
EXHIBIT #RTBU2 BUNDLE OF DOCUMENTS PROVIDED BY THE UNION

PN29

MR O'GRADY: Yes, your Honour. Well, it's exhibit 8 of RTBU2 as I understand it, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN31

MR O'GRADY: And your Honour will see that document is a flier that's been distributed by the union in respect of this application and it starts with the heading Attack on Redundancy Provision by Owners and then proceeds to say:

PN32

Silverton owners are planning to reduce your right to severance pay under the current enterprise agreement.

PN33

Well, it's hard to reconcile that assertion, your Honour, with the terms of the variation that we've proposed -

PN34

Silverton proposes to change the current system where redundancy is paid if no alternatives of termination are found.

PN35

Well, perhaps technically that's right, your Honour, but it gives in my submission a misleading impression. Then we have in the italics in the right hand side of the box:

PN36

Effectively Silverton wouldn't have to pay redundancy to an employee in say Sydney who have been made redundant if they were offered comparable employment in Perth.

PN37

Now, with respect, your Honour, that's just a nonsense and cannot be reconciled with the terms of the proposed variation that we've filed which, firstly, require that the offer be no less favourable considered on an overall basis of the terms and conditions applicable to the employee at the time of ceasing employment and it's difficult to see how a requirement that somebody move to Perth would clear that hurdle, but secondly, provide for the matter to be referred to the Commission under the disputes resolution procedures in clause 12 which your Honour will have a mechanism for compulsory arbitration.

PN38

So we're concerned, your Honour, that delay will be used to encourage employees not to take up a position with the new employer and absent some degree of certainty as to the how the clause works, they may well be prejudiced, in addition to the prejudice occasioned to the purchaser. Your Honour, if I can simply note, similar observations can be made with respect to the offers that have been made to the employees and there's a pamphlet set out in RTBU12, I think it is, of exhibit number 2, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes.

PN40

MR O'GRADY: Which also asserts that the terms and conditions are worrying and various other sorts of phrases are used to try and derogate what's been put on the table. So it's for those reasons, your Honour, that we say the matter should go ahead as listed. Clearly any delay is also going to occasion considerable expense. On my instructions, your Honour, the figures are in the realms of $100,000 a day that the business can't operate and we would obviously seek to avoid that. Further, your Honour, if the matter were to occur after the transmission it's unclear as to how any determination your Honour might make would impact upon those employees who reject an offer of employment.

PN41

I note that, you know, Mr Barnes hasn't, for example, come to the Commission saying we will consent to a variation of the enterprise agreement under MD1, that preserves if the like the situation until the determination of this application. If for example he had said look, we will consent to a variation that there'd be no severance payment to any employee offered employment by the transmittee pending the outcome of this application and that upon this application then any severance payments will be made in accordance with the certified agreement as varied or not as the case may be. One might understand how that would enable his position to be preserved whilst this delay takes place but that hasn't been forthcoming.

PN42

THE SENIOR DEPUTY PRESIDENT: In those circumstances who would be liable for the severance payments in the event that the matter is not determined in favour of your client?

PN43

MR O'GRADY: Well, that would have to be a matter that my client would have to deal with and I should say, your Honour, I don't have instructions to put that on the table.

PN44

THE SENIOR DEPUTY PRESIDENT: No, I understand. I understand what you're doing, what you're saying on this subject.

PN45

MR O'GRADY: Yes. What I'm concerned about, your Honour, is that if this application for an adjournment were granted the union may well have a victory by default if you like, given the timing of the transmission.

PN46

THE SENIOR DEPUTY PRESIDENT: You act for Silverton Tramway Company?

PN47

MR O'GRADY: Yes, I do.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. So that would be the transmitter.

PN49

MR O'GRADY: Yes, and it is trying to provide certainty to the purchaser through this application and as to the suggestion that there's some uncertainty about the evidence, your Honour, this is not an ordinary provision in a certified agreement to the extent to which the parties the agreement - I'm sorry, the current provision would not be seen to be in the normal class of provision in a certified agreement where the parties have negotiated its terms and chosen words based upon some objective intent that was manifest in what was said in the course of the negotiations.

PN50

The clause, as your Honour will have seen, is very much modelled on the old test case standard and to that extent, your Honour, we see this very much as a question of law and that's why we don't anticipate that there would be a need for significant evidence. As to any suggestion that there may not be ambiguity, if Mr Barnes indicates on transcript that he agrees that if an employee is offered employment that would fall within the descriptors contained in our proposed variation that there is no entitlement to severance under the current provision, well, then it might be said that there is no ambiguity, but once again that hasn't been forthcoming from the union.

PN51

THE SENIOR DEPUTY PRESIDENT: All right.

PN52

MR O'GRADY: So it's for those reasons, your Honour, that we resist the application for an adjournment.

PN53

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

PN54

MR BARNES: Yes, thank you, your Honour. With respect to my friend, I didn't come here today with instructions to make admissions. I came here today with instructions to make an application and we press our application. With respect, your Honour, what you're dealing with here is a calculated effort by the employer, or if not calculated, indifferent application in terms of the interests of the workers in terms of the timely management of this matter. We too rely upon subsection (t) in terms of justice between the parties.

PN55

It was the employer that calculated and determined when this application would be lodged. It was the employer that calculated and determined the nature, level and extent to which it communicated its position to its employees. Relevantly in terms of that bundle of documentation my friend sought to take you to in terms of RTBU1 can I just take you to that briefly, in terms of what is in fact being put forward and I caution your Honour just as a matter of care, this is not a document as I am instructed is advanced by the employer as transmitter but rather it's a document forthcoming from the transmittee, the prospective employer.

PN56

I would also say as I'm currently instructed, your Honour, and just as an aside I would refer you to clause 25 of the Silverton agreement, that the company still has not submitted anything in writing to its employees as to the proposal and its implications for them. Now, against that background as I'm instructed, the transmittees have access to the employer's employees, it's had access to their premises and it's the transmittees who've distributed the document RTBU1. If I can just take you to that document, in terms of what this alleged offer of employment is you will see that the employees must accept an attached - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Sorry, which one are you referring to, which document is it?

PN58

MR BARNES: Sorry, RTBU1.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes.

PN60

MR BARNES: Subclause (8) on page 1. This is the transmittee's, as we understand it, the alleged offer of employment.

PN61

THE SENIOR DEPUTY PRESIDENT: No, hold on, just bear with me a moment. RTBU1, you're talking about the document RTBU1 in exhibit RTBU2, are you?

PN62

MR BARNES: Yes, thank you, your Honour. My apologies.

PN63

THE SENIOR DEPUTY PRESIDENT: No, no, that's all right. Yes, go on.

PN64

MR BARNES: You will see that there's a document, a letter on Southern Silverton Trading letterhead, sub-item 8:

PN65

You accept the attached Australian Workplace Agreement.

PN66

Over the page there are a series of conditions precedent which gives the employer, the prospective employer the opportunity to opt out of the process rather than bind him to it and further, ceasing Silverton employment the document dictates that you must resign your position with Silverton Rail, the current employer. Your Honour, they're saying that there's an offer of employment is giving both the transmittee and the transmittor, the current employer, the very best of it. There's highly conditional structured process in place -

PN67

The employees in question will be called upon to sign an AWA.

PN68

It's difficult to understand when that's meant to be operative but at worst if I can take you to RTBU2 in that bundle, page 2 there under thereof under the recitals - I withdraw that, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: But all of that, Mr Barnes, is inconsequential, isn't it, to what is the meaning of the clause that the company is seeking declarations on, isn't it?

PN70

MR BARNES: Your Honour, it's inconsequential in the context of the actual determination that would fall to you to make, but it's my friend's submission the need for urgency is to create an environment of certainty for everyone. The employees he contents needs certainty. We're putting you on notice that that submission is of very limited if any weight because the very documentation that's forthcoming from the transmittee is highly conditional and the only offer is in part resign your position with the current employer. So if my friend is suggesting it adds to certainty, it only adds to certainty for the transmittor. It doesn’t add a certainty for us.

PN71

THE SENIOR DEPUTY PRESIDENT: But the real issue in terms of the question of certainty is the transmission date of the business, isn't it?

PN72

MR BARNES: Well, that's only been told to us today, being 16 January 06.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MR BARNES: Again that's the first time we've been told that date. So we still say that these matters need to be managed in a timely rather than in a way that suits the applicant employer in circumstances - - -

PN75

THE SENIOR DEPUTY PRESIDENT: But what's the prejudice to you in having the matter dealt with on 9 January? I should add that my diary indicates that it's only listed for one day but that's not to say that another date couldn't be made available. What's the prejudice to your client for - - -

PN76

MR BARNES: Yes, thank you, your Honour. In terms of prejudice the simple fact is that we have limited resources available between now and 9 January. We make no apology for that because of this particular time of the year. The relevant union officers are on leave and others will be going on leave. It will be heard to get the matter ready, it's as simple as that. I too have a family, my wife has expectations. We've booked a holiday house.

PN77

THE SENIOR DEPUTY PRESIDENT: I think all wives have that, Mr Barnes, at the moment.

PN78

MR BARNES: Yes. But now, your Honour, given that we're in such an eminent tribunal, we're dealing with issues of family care and parental issues, surely my personal convenience is also of some weight - I withdraw that. Your Honour, the real point is that there is work to be done to prepare this case, there are limited resources available. It does create genuine hardship for us to deal with it in that timeline.

PN79

THE SENIOR DEPUTY PRESIDENT: What sort of time are you suggesting, taking account of course of the transmission date or the proposed transmission date of 16 January?

PN80

MR BARNES: Well, we would in fact, well, not being mindful of that date but mindful of our general availability, we were contemplating early February.

PN81

THE SENIOR DEPUTY PRESIDENT: Well, I think that's out of the question given the transmission date, Mr Barnes, at the moment. Well, I am cognisant of the point you make about it being a two step process but I didn't understand her Honour Senior Deputy President Marsh to indicate that that meant the matter now needed to be dealt with I think by way of two hearings or procedurally any other way apart from a hearing of the evidence and the submissions in relation to those issues. That is, first of all, whether there is an ambiguity, and secondly, if there is, what is necessary to remove the ambiguity.

PN82

MR BARNES: Certainly, your Honour. I don't cavil with the notion that those issues could be prepared concurrently in a timely way for a single hearing date. It's just far more onerous to be seeking to look to be preparing affidavit material or witness statements .....

PN83

THE SENIOR DEPUTY PRESIDENT: Mr O'Grady, what do you say about the notion of an adjournment but in the context of the proposed transmission date of 16 January?

PN84

MR O'GRADY: Your Honour, my instructions are to oppose any adjournment and the basis upon I think those instructions are given are that we want to be in a position to run the business effectively from 16 January and whilst this issue is hanging around, for the reasons that I outlined earlier, that impact upon that. Your Honour, I note that Mr Barnes hasn't proffered the undertaking that I flagged earlier or the consent that I flagged earlier that would obviate at least some oft the concerns and in light of the material I took you to earlier, your Honour, we think it would be undesirable for there to be any adjournment. But I can't take it any further than that, your Honour. I can't issue with the proposition that this is a difficult type of the year for everybody.

PN85

MR BARNES: Your Honour, I'm reluctant my friend and I appreciate what he says that he understood that the 16th was the definite date, but from my client's discussions this morning with the employer that wasn't put that definitively. They wouldn't confirm that it was the 16th. I don't say that to criticise my friend but that's simply what we were told this morning.

PN86

THE SENIOR DEPUTY PRESIDENT: Mr Barnes, what do you say about the proposition that's been advanced by Mr O'Grady about a without prejudice undertaking not to seek any severance payments in respect of any of the existing employees if they have any right to it until the determination of the application?

PN87

MR BARNES: Yes, I have heard what my friend has said about that. It's clearly a matter which I would like to take instructions. I would appreciate if my friend if he's seriously pressing - I mean but I also thought with respect he said he didn't have instructions to put that to us.

PN88

THE SENIOR DEPUTY PRESIDENT: No, he didn't. He was suggesting that that was something that you might have put to show some goodwill or genuineness on the part of your client I suppose.

PN89

MR BARNES: Yes. I would certainly have to have an adjournment to contemplate that and take instructions and understand it in writing before I could comment on it at this stage, I'm sorry, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: Well, how much time do you need to do that?

PN91

MR BARNES: It would be a matter of at least - I'm just trying to find out. I'm sorry, your Honour, could I before I do that, could I have the precise text of what my friend suggests and which he has no instructions on?

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, he certainly could do it a lot more eloquently than I did so I will ask him to just say it again.

PN93

MR O'GRADY: Your Honour, what I was putting forward is that there be a consent variation under section 170MD(1) and I think it would have to be put as such because otherwise individuals might still pursue applications and that would be to the effect that there would be no severance payable to any employee offered employment by the transmittee pending the outcome of this 170MD(6) application.

PN94

MR BARNES: I'm sorry, my friend is just going too fast.

PN95

MR O'GRADY: I apologise, Mr Barnes. I will start again. There will be no severance payable to any employee offered employment by the transmittee.

PN96

THE SENIOR DEPUTY PRESIDENT: Just a sec. Yes.

PN97

MR BARNES: Yes.

PN98

MR O'GRADY: Pending the outcome of the section 170MD(6) application. Upon the determination of the section 170MD(6) application the severance entitlements of all such employees will be - - -

PN99

THE SENIOR DEPUTY PRESIDENT: Just a sec.

PN100

MR BARNES: Yes.

PN101

MR O'GRADY: Will be determined in accordance with the certified agreement as varied or not, as the case may be.

PN102

THE SENIOR DEPUTY PRESIDENT: Could I just comment, it seems to me if that sort of proposal was accepted then the application for variation may need amendment to incorporate some trigger for removing that provision.

PN103

MR O'GRADY: Yes, your Honour.

PN104

MR BARNES: Subject to me taking instructions one issue I just seek some assistance in clarifying how much friend anticipates this would work, if this amendment was put in place and if an employee was offered a position by the transmittee and accepted it on the terms as referred to in RTBU1, that is, that he's resigned his position from Silverton, how does he ever come back to pursue a claim under this provision in the event your variation application is unsuccessful? Because with respect, if they've accepted the position they've all had to resign.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, I suppose that might be an obstacle, Mr O'Grady, wouldn't it?

PN106

MR O'GRADY: Your Honour, if it be said that the effect of clause 25 is that an employee - of the current certified agreement, clause 25.7, that an employee does not have to accept an offer that is made by the transmittee, even if it be a comparable offer that is made, then it seems to me there may be some scope for arguing that notwithstanding the acceptance of the offer there was a redundancy situation as contemplated by that clause, given that there will be a transmission of the company and that's the trigger if you like for the entitlement to severance such as it is set out in 25.7. But if my friend has a variation on what I have put that would clarify that issue and give his client some comfort in that regard, well, obviously I would get instructions on it.

PN107

What I was primarily putting to your Honour is the adjournment may give rise to, if you like, a victory default, absent some mechanism along these lines being put in place. I should reiterate, your Honour, that my client's instructions are that its preference for the reasons I flagged is that there be no such undertaking but if your Honour was flagging an adjournment within the period of up to 16 January and something along these lines was put forward then clearly that would go some way towards meeting the concerns that I have raised.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Barnes.

PN109

MR BARNES: ..... interrupt.

PN110

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN111

MR BARNES: I'm sorry, your Honour, an issue was just being raised with me. I'm not quite sure I fully understand it but the nominal term of this enterprise agreement expires on 16 February. There may well be an issue if the matter isn't determined by that date that the respondent simply gives notice and terminates the agreement as well. I think that's the nature of the concern raised by my client. So there are a multiplicity of issues that could arise in trying to find away forward. I don't know that I'm going to get instructions on what my friend has just put there then in the next few minutes.

PN112

THE SENIOR DEPUTY PRESIDENT: Perhaps what I might do, Mr Barnes and Mr O'Grady is to stand the matter down for an hour and perhaps the party - or you could perhaps get some more instructions, Mr Barnes, as with Mr O'Grady, and then perhaps the parties could even speak with each other or confer over the course of that one hour and we'll come back and see where we go from there.

PN113

MR O'GRADY: After your Honour rises, if I might give Mr Barnes a telephone number so he can ring me if wants to in that period.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes. Did you hear that, Mr Barnes?

PN115

MR BARNES: Yes, thank you, I appreciate that.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, in fact if you wish to have some further discussions between yourselves immediately after I adjourn then we'll keep the video link up for another 10 or 15 minutes if you like.

PN117

MR O'GRADY: I understand Mr Barnes needs to get some instructions anyway, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, in any event you can exchange phone numbers and perhaps discuss the matter with each other. I will stand the matter down until 20 to three.

<SHORT ADJOURNMENT [1.37PM]
<RESUMED [2.50PM]

PN119

THE SENIOR DEPUTY PRESIDENT: Mr O'Grady or should I ask Mr Barnes?

PN120

MR O'GRADY: Perhaps if I go through what we've discussed, your Honour, and if I get it wrong Mr Barnes will correct me.

PN121

THE SENIOR DEPUTY PRESIDENT: Yes.

PN122

MR O'GRADY: Thank you for the time firstly.

PN123

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN124

MR O'GRADY: What Mr Barnes has indicated to me - sorry, I will start again. I think what the parties could live with, to put it in neutral terms, an adjournment to either the 11th or 12 January 2006. My client's preference is for 11 January simply because, as I indicated before the break, we have got the deadline of
16 January which I've been told is a firm deadline. It would assist Mr Barnes' client if the proceedings on the date that's fixed upon by your Honour, assuming your Honour is available on either of those dates, were to occur in Sydney.

PN125

We have indicated that we can accommodate that, however we have a concern obviously that your Honour is apprised of the matter and we'd ask that your Honour continue to deal with it if it were to be heard in Sydney and if that suits your Honour's convenience. What's going to happen, your Honour, is in the meant time, early in the new year, there are going to be discussions between the transmittee and the union and my client is going to make endeavours to - sorry, transmittor and the union and my client is going to make endeavours to have the transmittee participate in those discussions as well to discuss a number of issues, including the proposed variation that I flagged on transcript or a variation along those lines which, you know, will be worked out by the parties, but those discussions, it's understood, would not be confined to that issue.

PN126

It's hoped that those discussions, as I say, will commence early in January, so that's really where we got to in the discussions as I understand it.

PN127

THE SENIOR DEPUTY PRESIDENT: Sorry, could I just clarify that, the proposed variation or the variation that you suggested that Mr Barnes might
adopt - - -

PN128

MR O'GRADY: Yes.

PN129

THE COMMISSIONER: And if that occurred then it's possible, is it, that the date of the 11th or the 12th could be vacated to a later date anyway?

PN130

MR O'GRADY: Well, we didn't get their - I haven't got instructions along those lines and that wasn't something that he and I discussed. But if there are discussions between the parties then, well, things may develop, your Honour.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Barnes - sorry, have you finished, Mr O'Grady?

PN132

MR O'GRADY: Yes, your Honour.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Barnes.

PN134

MR BARNES: Yes, thank you, your Honour. My friend has fairly summarised what was discussed.

PN135

THE SENIOR DEPUTY PRESIDENT: Very well. Is there going to be any evidence as far as you're concerned, Mr Barnes?

PN136

MR BARNES: Yes, thank you for raising that point, your Honour. We would like to say yes, we will be putting on some evidence and we'd seek - I didn't raise this with my friend directly during the break but I had raised it in correspondence at an earlier stage. It would assist in our respectful submission to facilitate the hearing if some hopefully consent directions could be given that each party would file an outline of submissions and if they are to rely upon any evidence that they file witness statements. But for our part we anticipate we will be putting on some evidence but regrettably because of the timeline we've foreshadowed that evidence will only be filed just before the hearing or at the hearing.

PN137

There's another matter I think in fairness I should raise which albeit as an aside but it does relate to documents, it was suggested this morning in the meeting between the parties that the employer would be producing some other documents to the union relating to the proposed transmission and we don't want what we're discussing here today in relation to documents to be confused with that issue. Our client is still very keen to see anything that the transmittor proposes giving to them regarding the sale.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes. But that's something that's been discussed between the parties separate from these proceedings, is it?

PN139

MR BARNES: It's something that was discussed this morning, your Honour.

PN140

THE SENIOR DEPUTY PRESIDENT: I don't know whether it's appropriate or whether you would know at this stage, do you have any idea of how many witnesses you might have?

PN141

MR BARNES: From what I've been currently instructed, I would say that there would be two.

PN142

THE SENIOR DEPUTY PRESIDENT: Do you contemplate any witnesses,
Mr O'Grady?

PN143

MR O'GRADY: At this stage, no, your Honour, but perhaps if your Honour were to put in place a time frame that would leave that option open for my client and what I have in mind, your Honour, would be that something along the lines that we would file and serve any outline and/or witness statements but say on the 9th, then Mr Barnes would - well, depending on whether your Honour fixed upon the 11th or the 12th, the eve of the hearing date and then we could work from there. The eve of the hearing date on the 11th or on the 11th otherwise.

PN144

THE SENIOR DEPUTY PRESIDENT: Have further discussions been programmed at this stage?

PN145

MR O'GRADY: I don't know what the availability of people are and as I say, your Honour, I can't speak for the transmittee.

PN146

THE SENIOR DEPUTY PRESIDENT: All right. You have no objection to the matter being heard in Sydney?

PN147

MR O'GRADY: No.

PN148

THE SENIOR DEPUTY PRESIDENT: All I was asking about witnesses for is to ascertain where is the most convenient location in terms of movement of people.

PN149

MR O'GRADY: Yes. Your Honour, at this stage I don't know that we will be calling any witnesses. Mr Barnes says he will be calling two and so I can't really oppose the move to Sydney on that basis.

PN150

THE SENIOR DEPUTY PRESIDENT: All right. Very well. First of all let me congratulate the parties on the sensible and practical approach they've taken to this and I think in terms of allowing RTBIU the time available between now and the hearing date we will fix it for 12 January.

PN151

MR O'GRADY: Yes, your Honour.

PN152

THE SENIOR DEPUTY PRESIDENT: And I will direct that on or before close of business on 9 January any witness statements that the parties wish to rely on be filed in the Commission and served on the other party and that on or before close of business on 9 January the parties file an outline of their contentions of fact and law in relation to the application.

PN153

MR O'GRADY: Yes, your Honour.

PN154

THE SENIOR DEPUTY PRESIDENT: And I will give liberty to Silverton to notify the Commission on or before 2 January - no, 3 January its intentions to call witnesses if any.

PN155

MR O'GRADY: Thank you, your Honour.

PN156

MR BARNES: Pardon me, your Honour. With respect, I appreciate what you have just put in relation to the directions however my friend was suggesting a set of directions that were more liberal than yours in terms of us giving, us as for the union, having a bit more time given those witnesses being away and the proposed hearing date of the 12th. Could we have leave to file and serve our material by the 11th in lieu of the 9th?

PN157

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to that,
Mr O'Grady?

PN158

MR O'GRADY: I do, your Honour, in that obviously we would seek to I suppose respond or get instructions to respond and whilst I didn't propose this, your Honour, it does seem to me that the mutual exchange of outlines and witness statements has something to commend in the nature - given the expedited hearing of it. Can I suggest that we set the date of close of business on the 10th for both parties to file any witness statements upon which they seek to rely?

PN159

THE SENIOR DEPUTY PRESIDENT: Well, is it possible though for you to provide in those circumstances your contentions?

PN160

MR O'GRADY: On the 9th?

PN161

THE SENIOR DEPUTY PRESIDENT: On the 9th.

PN162

MR O'GRADY: Yes, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Barnes, does that satisfy your situation?

PN164

MR BARNES: Yes, that would of assistance, thank you, your Honour. There's a particular witness I'm instructed doesn't return from leave until the morning of the 9th.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the likelihood is that Silverton may not even have any witnesses so I think you would be assisted though if Mr O'Grady was to provide you with the outline of contentions of fact and law by close of business on the 9th and that any witness statements be filed on or before close of business on the 10th.

PN166

MR BARNES: Much appreciated. Thank you, your Honour.

PN167

MR O'GRADY: Yes, your Honour, and am I to understand that we will receive the union's outline of contentions on the 10th, at the same time as we receive their witness statements?

PN168

THE SENIOR DEPUTY PRESIDENT: That's right.

PN169

MR O'GRADY: Yes, your Honour.

PN170

MR BARNES: Yes, your Honour.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Anything else from you,
Mr Barnes?

PN172

MR BARNES: No, thank you, your Honour.

PN173

THE SENIOR DEPUTY PRESIDENT: Anything else from you, Mr O'Grady?

PN174

MR O'GRADY: No, thank you, your Honour.

PN175

THE SENIOR DEPUTY PRESIDENT: Well, again I thank the parties for their sensible approach and I congratulate the parties on the outcome and wish you all a very merry Christmas.

PN176

MR O'GRADY: Thank you, your Honour.

PN177

THE SENIOR DEPUTY PRESIDENT: And a safe and happy holiday.

<ADJOURNED UNTIL THURSDAY, 12 JANUARY 2006 [3.00PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RTBU1 CORRESPONDENCE PROVIDED BY WHITE BARNES FOR THE RTBU PN28
EXHIBIT #RTBU2 BUNDLE OF DOCUMENTS PROVIDED BY THE UNION PN28