AG2006/4509, Transcript of Proceedings [2006] AIRCTrans 881 (11 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15324-1
15326-1

DEPUTY PRESIDENT IVES

AG2006/4509 AG2006/4510

THIESS PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-VICTORIA BRANCH
s.170MH pre-reform Act - Application to terminate agreement (public interest)
(AG2006/4509)

THIESS PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-VICTORIA BRANCH
s.170MH pre-reform Act - Application to terminate agreement (public interest)
(AG2006/4510)

MELBOURNE

2.01PM, WEDNESDAY, 28 JUNE 2006

Continued from 22/6/2006

Hearing continuing

PN256

THE DEPUTY PRESIDENT: Yes, I note there are no changes to the appearances. Mr Maddison?

PN257

MR GOSLING: Before Mr Maddison - - -

PN258

THE DEPUTY PRESIDENT: Yes, Mr Gosling.

PN259

MR GOSLING: Your Honour, there are a few outstanding matters from when we were last before you and it may be appropriate if I could deal with those before Mr Maddison addresses you.

PN260

THE DEPUTY PRESIDENT: Yes, fine.

PN261

MR GOSLING: Your Honour, there was questions raised by Mr Maddison about the level of detail of some of the information I've provided to the Commission and to satisfy the questions from Mr Maddison I caused to be made additional material which was couriered to his office on Monday of this week under a covering letter from myself and the letter reads and I quote:

PN262

Please find attached for your information extracts from the National Building and Construction Industry Award 2000 detailing ...(reads)... complete copy of the Thiess Pty Ltd and AWU Electrification Project Civil Construction Enterprise Agreement 2006 to 2008.

PN263

THE DEPUTY PRESIDENT: Yes.

PN264

MR GOSLING: In part, your Honour, some of that information related to questions from yourself regarding the possibility of a public interest question arising thereby there being no award respondency in the event that you are pursuant to terminate these agreements. If I could, your Honour, I will tender to you the information that I provided to Mr Maddison save unfortunately except for a full copy of the Craigieburn Electrification Certified Agreement which I appear to have left on my desk.

PN265

If I could first deal with the National Building and Construction Award respondency issue, your Honour. Do you have a copy of that?

PN266

MR MADDISON: Your Honour, while Mr Gosling is getting the material for the Commission, if it may save some time this afternoon we don’t seek to agitate or contest the fact that Thiess is respondent to the National Building and Construction Industry Award. I'll just indicate that to the Commission.

PN267

THE DEPUTY PRESIDENT: All right, thanks, Mr Maddison. Well, I think it was partly in response to something that you had raised with Mr Gosling last time but it was also in response to a question that I'd asked myself as Mr Gosling said as to what would be the industrial instrument covering employees if employees were to be employed absent the agreements and as I understand you say that the instrument would be the National Building and Construction Award which would have coverage.

PN268

MR GOSLING: Yes, it would have coverage by virtue of a number of reasons, your Honour. Firstly being that the award itself was made common rule here in Victoria and I have extract from Commissioners decisions to that effect.

PN269

THE DEPUTY PRESIDENT: Yes.

PN270

MR GOSLING: Secondly, the fact is that on my search of the document Thiess is actually a named respondent of the award and would therefore continue to be bound in its own right.

PN271

THE DEPUTY PRESIDENT: Yes.

PN272

MR GOSLING: As I asserted on the last occasion, your Honour, we are members of both the Master Builders Associate and the Australian Industry Group who are bound to the award and by virtue of our membership would be bound also to that agreement.

PN273

THE DEPUTY PRESIDENT: All right. Good. Thanks, Mr Gosling.

PN274

MR GOSLING: Would it suit, your Honour, if I did for the record at least provide those extracts?

PN275

THE DEPUTY PRESIDENT: Yes, by all means.

PN276

MR GOSLING: The first document, your Honour, is so being the extract from the National Building and Construction Award. Given that its some 700 odd pages long I didn’t think it appropriate to actually tender the whole document.

PN277

THE DEPUTY PRESIDENT: No.

PN278

MR GOSLING: If I could take your Honour to the last page of the document you will see at the last line which indicates there that its Thiess Contractors Pty Ltd, 146 Archer Road, Archerfield, being the company.

PN279

THE DEPUTY PRESIDENT: Yes. I won't mark this document as it’s a document of the Commission, Mr Gosling.

PN280

MR GOSLING: Thank you, your Honour. Just to clarify the issue as it indicates there, your Honour, that its Thiess Contractors Pty Ltd. In the year 2000, Thiess Contracts Pty Ltd changed its name from Thiess Contractors Pty Ltd to Thiess Pty Ltd.

PN281

THE DEPUTY PRESIDENT: Yes.

PN282

MR GOSLING: I would tender to the Commission a copy of the ASIC search identifying that fact to clarify Thiess as it is now named or known is the same as Thiess Contractors as I've implied in the award.

PN283

THE DEPUTY PRESIDENT: If you want to just save my associate from becoming lame from walking back and forwards I suppose you just hand her the document, the full file of documents.

PN284

MR GOSLING: Yes, your Honour.

PN285

THE DEPUTY PRESIDENT: Then you can discuss, through with me what they are, Mr Gosling.

PN286

MR GOSLING: The only other document I would tender, your Honour, is a copy of the decision of Commissioner Wheelan on 10 December 2004 being the decision in relation to the declaration of common rule for the National Building and Construction Award and also the variation of that award to provide for the common rules.

PN287

THE DEPUTY PRESIDENT: Fine

EXHIBIT #A3 AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION DOCUMENT

PN288

THE DEPUTY PRESIDENT: The others are, once again, documents of the Commission so I won't mark those.

PN289

MR GOSLING: Thank you, your Honour. I think those are all of the matters or documents I wish to tender to the Commission to answer the questions raised by Mr Maddison and yourself and therefore your Honour leave you with the position that we say there are no impediments and no reasons why the Commission should not find that its not against the public interest to terminate these agreements. As I've indicated earlier the agreements nominal period has expired.

PN290

THE DEPUTY PRESIDENT: I'll have to think that one through, Mr Gosling. The Commission should not find that it's not against the public interest. I know what you mean but I'll have to think that through.

PN291

MR GOSLING: I'm sorry if I'm confusing the Commission, it's certainly not my intention.

PN292

THE DEPUTY PRESIDENT: The Commission should find that it's not contrary to the public interest I think is what you mean to say.

PN293

MR GOSLING: To terminate the agreements, yes.

PN294

THE DEPUTY PRESIDENT: Yes.

PN295

MR GOSLING: We indicated and gave evidence to the effect that there are no employees covered by the agreement and to the extent that the Commission may be concerned in relation to what may happen if future employees were engaged as I think there was a question raised by yourself that there would be some instrument in place that would provide wages and conditions for those future employees and at minimum it would be, the National Building and Contract Award.

PN296

THE DEPUTY PRESIDENT: Yes.

PN297

MR GOSLING: I would also submit then it would be then open to those employees to enter into negotiations around the improvement of their conditions but a base of conditions would be in effect and we would rely to a great extent the decision of yourself, your Honour, which I think you gave some indication of when we were last before you, I think, that is in matter number PR972689, a decision of yourself on the 26 May 2006.

PN298

THE DEPUTY PRESIDENT: Yes, that's the Chubb decision.

PN299

MR GOSLING: It is, your Honour. In that decision, your Honour, determined that it was not against the public interest to terminate those agreements even where the employees continued to exist albeit undertakings were given by the company - - -

PN300

THE DEPUTY PRESIDENT: I don’t think it was entirely on all fours with the situation here but nonetheless I accept what you say.

PN301

MR GOSLING: Thank you, your Honour.

PN302

THE DEPUTY PRESIDENT: Yes. Thanks Mr Gosling. Mr Maddison?

PN303

MR MADDISON: Yes, thank you, your Honour. Last time we reserved our position in respect of cross-examination of Mr Gosling and we do seek to cross-examine Mr Gosling this afternoon.

PN304

THE DEPUTY PRESIDENT: Yes. All right. Mr Gosling, if you'd take the stand please. Might readminister the oath seeing there's some time gone by.

<GRAHAM LESLEY GOSLING, RECALLED AND RESWORN [2.10PM]
<CROSS-EXAMINATION BY MR MADDISON

PN305

MR MADDISON: Mr Gosling, do yo have exhibit A1 which is the list of employees in front of you?---Yes.

PN306

That document, A1, shows certain information, the names, and has the date of birth, has the commencement - date commencement this position. Is that in relation to - see that column I'm referring to, Mr Gosling?---Yes, the dates commenced in this position about the fifth from the left I think it is.

PN307

Yes?---Yes.

PN308

Those dates are they referenced to when they commenced on the Craigieburn Electrification Project?---They reference - they commenced employment within Thiess which was on the Craigieburn Electrification Project.

PN309

Are some of these are employees who previously worked with Thiess prior to commencing at the Craigieburn Electrification Project?---They were.

PN310

All of them, Mr Gosling?---I'm not aware of all of them but I don’t believe its all of them were the case.

PN311

Do you know whether Mr Groves for instance had previously worked?
---Mr Groves had worked for Thiess prior to his employment on this project.

PN312

And Mr McGarry?---Mr McGarry had.

PN313

Mr Muller or Mueler?---Mr Muller has.

PN314

Mr Ogden?---I am unaware.

PN315

Mr Saliba?---Mr Saliba, yes.

PN316

Mr Tabb?---I'm unaware.

PN317

When you say unaware means you don’t know if they did or they didn't?---That's correct.

PN318

Are you able to find out that information?---I could later today, yes, but not immediately.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN319

Mr Wall?---I'm unaware of his previous employment with the company.

PN320

And ones that you are aware of and you've indicated that they have previously worked for Thiess prior to the Craigieburn Electrification Project were they engaged under the terms of either of the two agreements that you're seeking to terminate today?---They were in my recollection employed under what was called the Civil Enterprise Agreement.

PN321

Which is one of the agreements?---Which is one of the agreements there, yes.

PN322

And the three that you're unaware of, they may have been engaged under one of these agreements?---If they were employed by Thiess previously they would have been engaged under either one of those agreements provided that their employment was during the life of those agreements otherwise they would have been employed under previous agreements.

PN323

How long do you think it will take you to get the information as to whether the other three that you're unaware of? Is it just a phone call or something to
Mr Neilson?---That would be a matter of to phone payroll in our office and see whether they could do a computer search.

PN324

THE DEPUTY PRESIDENT: What's your relevance, Mr Maddison?

PN325

MR MADDISON: The relevance goes directly to 170MH(2) where you need to take steps to view the persons bound by the agreements whether it should be terminated.

PN326

THE DEPUTY PRESIDENT: Yes. So why would say that these individuals are bound by the agreement?

PN327

MR MADDISON: Your Honour, I will come to that.

PN328

THE DEPUTY PRESIDENT: Okay. Well, sorry, yes.

PN329

MR MADDISON: It is strictly relevant to your examination that you need to satisfy yourself about. I would like Mr Gosling to get that information because it is directly relevant to the matter before you.

PN330

THE DEPUTY PRESIDENT: Well, only, only I would thought, Mr Maddison, if you can somehow show that the individuals concerned are covered by either of the agreements which termination is sought for.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN331

MR MADDISON: And that's what I intend to demonstrate to the Commission.

PN332

THE DEPUTY PRESIDENT: Okay. Thank you. Go ahead.

PN333

MR MADDISON: I do need Mr Gosling to seek to get that information.

PN334

THE DEPUTY PRESIDENT: You want that to happen now?

PN335

MR MADDISON: Yes, that's why I asked whether it is something that he can do by virtue of a telephone call.

PN336

THE DEPUTY PRESIDENT: Yes. Mr Gosling, do you have any objection to making - - -?---I'll say I can make the phone call, your Honour, but I'm not aware of how long it will take for the payroll list.

PN337

No.

PN338

MR MADDISON: Well, we can at least get that information.

PN339

THE DEPUTY PRESIDENT: We can at least see what the result of the telephone conversation - telephone call is. So if I adjourn for 10 minutes that should be sufficient for you to?---I would hope so, yes, your Honour.

PN340

Yes. All right. I'll adjourn for 10 minutes. Thank you.

<SHORT ADJOURNMENT [2.15PM]
<RESUMED [2.27PM]

PN341

THE SENIOR DEPUTY PRESIDENT: How did you go, Mr Gosling?
---Successfully, your Honour.

PN342

And the answer is?---I can go through - - -

PN343

MR MADDISON: Can we go back to, I think the ones that, your Honour, the last time. The first one on the list is Mr Ogden?---If you like I can take you through the list and give you the employment dates.

PN344

Sure?---If that satisfies.

PN345

Yes, certainly, Mr Gosling?---Mr Groves was employed from the period of
14 January 04 to 8 May 06. Mr McGarry was employed from 9 September 05 to 8 December 05.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN346

Sorry, what was the second date, Mr Gosling?---8 December 05.

PN347

Yes, sorry?---Mr Muller was employed from 27 July 04 to 10 March 06.
Mr Ogden from 27 August 01 to 11 July 03. Mr Saliba from 3 January 01 to
7 January 03. Mr Tabb from 19 December 2000 to 16 April 2003 and there are no records of Mr Wall being previously employed by Thiess.

PN348

Thank you, Mr Gosling, you seem to have a very efficient pay office?---We try to.

PN349

Sorry?---It ensures our employees get paid correctly.

PN350

Some of the times I understand that is the case, Mr Gosling. Thank you for that information but Mr Gosling, absent the AWU agreement those employees who were currently engaged in the Craigieburn Electrification Project would be employed under the Civil Agreement that you're seeking to terminate today, would that be correct?---Had that agreement not been entered into.

PN351

With the AWU, yes?---Yes, had it not been in place, that is correct.

PN352

THE DEPUTY PRESIDENT: Well, assuming that they would have been employed at all?---That is certainly the question, your Honour. There were no employees employed until the new enterprise agreement was entered into. Attempts were made to do that with the CFMU unsuccessfully.

PN353

Yes, you went through that last time, thanks, Mr Gosling.

PN354

So if they were employed at all, they were to be employed in accordance with the terms of the - - -?---The AWU agreement.

PN355

MR MADDISON: If the AWA agreement wasn’t there, they'd be employed under terms of the CFMU Civil Agreement?---Civil Agreement, yes, if we'd employed them which we'd determined not to.

PN356

I understand that yes?---If they were employed at all, yes.

PN357

Mr Gosling do you have a copy of the AWU agreement in front of you?---No I think I indicated at the outset that I left it sitting on my desk so I'm sorry to say I didn’t bring with me.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN358

You provided us last time, I think, with one page which was the scope and application?---Yes I did.

PN359

Do you recall that, Mr Gosling?---Yes.

PN360

You also referred to the fact that it's in clause 6 of the agreement that the parent award is the Australian Workers' Union Construction and Maintenance Award of 2002?---That's correct.

PN361

In the scope of the AWU agreement is the scope of your - that's correct?---The scope of the agreement is the scope of the award and all employees are employed by Thiess on the Craigieburn Electrification Project.

PN362

I've only got one copy of this but I can lend you my copy. Here is from the scope and application clause, Mr Gosling, but it's only as wide as the award itself. Can I just provide you with that?---Yes.

PN363

I think Mr Gosling provide us - - -

PN364

THE DEPUTY PRESIDENT: Yes, I was just having a look for it, I've probably got it here but I just make - - -

PN365

MR MADDISON: It's clause 4 of the AWU agreement. Mr Quigley can provide his copy that he has.

PN366

THE DEPUTY PRESIDENT: Just before you do it certainly should be here somewhere.

PN367

MR MADDISON: It's just a two page document, I think your Honour. The certification - - -

PN368

THE DEPUTY PRESIDENT: Yes, I've got it here, thank you.

PN369

MR MADDISON: It's clause 4.

PN370

THE DEPUTY PRESIDENT: I won't bother Mr Quigley any more than I have to as long as he does me the same favour.

PN371

MR MADDISON: I'm not sure that he will, your Honour.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN372

MR QUIGLEY: I'm more than happy to oblige, your Honour.

PN373

THE DEPUTY PRESIDENT: Thanks, Mr Quigley.

PN374

MR MADDISON: Do you have clause 4 in front of you, Mr Gosling?---I do.

PN375

You see the point that I'm trying to ascertain from you that the scope of the agreement is no broader than the width of the award?---It certainly says in clause 4 that it applies in the State of Victoria, the company in respect of all of its employees engaged in civil construction work by the award as defined by the award.

PN376

Yes?---i.e. civil construction work as defined by the award on the project so in my submission it - in my position whatever the definition of civil construction work is as defined in that award is the scope of this agreement.

PN377

Can I provide you with a copy of the award, Mr Gosling, and to his Honour as well. Can I take you, Ms Gosling, to clause 5 of the award which starts at the bottom of page 3?---Yes I have that.

PN378

It refer to persons engaged in or in connection with the industries or callings of - you would say the project that you're engaged in come under 5.1.1, civil and mechanical engineering project?---At least in that part, yes.

PN379

Can you go down further, Mr Gosling, to clause 6, exceptions to limitations?
---Well, before we go to that you were saying covered by that. I could also indicate that it would appear at clause 5.1.7.

PN380

Yes?---Also applies, at least.

PN381

Yes?---Not just limited to. One would imagine clause 5.1.2, power transmission.

PN382

Yes?---There is overhead power lines to be installed as part of this project so I would imagine - - -

PN383

THE DEPUTY PRESIDENT: Your point is probably somewhere else is,
Mr Maddison, you want to get to?

PN384

MR MADDISON: Yes, but I'm happy for Mr Gosling to answer the question in the manner in which he seeks to. If I could then take you down to clause 6, exceptions and limitations?---Yes.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN385

You see 6.1?---I do.

PN386

Any building tradesmen?---Yes.

PN387

And provided us in your list in exhibit A1 the employees who are currently engaged on the project, a Mr Alan Ogden, who on your list is engaged as a carpenter?---Yes.

PN388

Would you say having a look at that award that Mr Alan Ogden is a building tradesman?---Not necessarily.

PN389

What would you say that is, Mr Gosling?---Well, it depends on the definition of the words, building tradesman as opposed to being a carpenter - not necessarily a connection that a carpenter has to be only a building carpenter.

PN390

THE DEPUTY PRESIDENT: Well, I think it's likely but we could take that further, Mr Gosling, but it might be a misuse of all of our time because I think its likely that we'll find the definition of carpenter is encompassed by the term, building tradesman?---Yes. I suppose my point is it might be wider than the term, building tradesman.

PN391

Yes, but in the circumstances of the current situation I suspect that we'll find that it's encompassed within that terminology. I mean, we could take it further but I suspect that's what we'll find and I don’t want to waste a whole lot of time with it unnecessarily. Go ahead, Mr Maddison.

PN392

MR MADDISON: Thank you, your Honour.

PN393

Mr Gosling, when we were last in the Commission was it fair to say that the main reason that you're seeking to have this agreement terminated is because its stopping the company from being able to successfully tender for partially funded or fully funded federal government work?---It has the potential to do that given a project in New South Wales. In part we were refused the ability to tender on that job because in New South Wales at the time they had a non compliant enterprise agreement in place and the reason we are seeking to terminate these agreements is to not run into the same difficulty that was encountered in New South Wales by the mere fact of an agreement being in place which did not meet the requirements of the national - - -

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN394

That was the recent refusal that you referred to last week, Mr Gosling?---It was.

PN395

You have correspondence or documentation from the Commonwealth that supports this view?---I do.

PN396

You can provide that to the Commission?---I sought to on the last occasion but it seemed the Commissioner didn’t believe that that would assist him in his deliberation so it wasn’t tendered on that occasion.

PN397

We are seeking a copy of that, your Honour.

PN398

THE DEPUTY PRESIDENT: Why, Mr Maddison? Why is it relevant to the matter that's before me?

PN399

MR MADDISON: It's relevant for two reasons, your Honour. I think at the outset last week and I thank you for referring me to the Chubb matter and I have read that but the matters that we say that it may fall fowl of are section 400 and section 804 of the Workplace Relations Act which are different sections that were argued before you last time. We would say that as I understand it that if the Commonwealth are saying because of the content of your agreement or because of the agreement that you have, cannot successfully tender, that would be potentially a breach of section, the old section 170NC which is now section 400.

PN400

THE DEPUTY PRESIDENT: Which is what?

PN401

MR MADDISON: Coercion.

PN402

A person must not engage or threaten to engage or organise any industrial action or take other action, to refrain or threaten to refrain from taking any action with the intent to co hearse another person relevantly to terminate a collective agreement.

PN403

We would say that an economic duress has been bound by the Federal Court to be - it can amount to coercion and we would say that the Commonwealth threatened not to give work on the basis of the fact that you've got an agreement - - -

PN404

THE DEPUTY PRESIDENT: Well, I think the problem that I've got with that argument, Mr Maddison, is reflected, I think, in that Chubb decision is that the argument then has to, as least as it seems to me, go further than that and say that the action of the Commission in terminating the agreement is somehow condoning the breach that you talk about.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN405

MR MADDISON: Yes.

PN406

THE DEPUTY PRESIDENT: That's the part of the argument that I have some difficulty with. There may or may not be a breach as you say. If there is a breach, it's an actionable breach under the Act and it would remain an actionable breach under the Act regardless of the actions of the Commission. It seems to me to be nothing in the actions of the Commission that could be made out to be in any way providing support or otherwise to such a breach if such a breach existed.

PN407

MR MADDISON: That analysis, your Honour, may be in accurate in respect to the freedom of association provisions.

PN408

THE DEPUTY PRESIDENT: Yes.

PN409

MR MADDISON: What we would submit that it is not the same in relation to the old section 170NC or section 400 where what the Commission is asked to do is the very vice that that provision said shouldn’t happen, that is, terminate an agreement. Now, I do not believe that there is any provision in the Act which would or the court would have the power to undo that wrong. Once an agreement is terminated it is terminated and it stays that way. It's not like the Arnold Schwarzenegger character in terminator movies where it can morph back into life, it's gone.

PN410

THE DEPUTY PRESIDENT: Yes.

PN411

MR MADDISON: That provision, the new section 400, it's an attempt to stop that vice and we would say if we are right that what the Commission is being asked to do is to shorten sort of criminal terminology is appropriate or not, your Honour, but be to aid and abet or be an accomplice to the wrong. We'd certainly say that's an analogise way of looking at it and that is something a little bit different than what was before you last time.

PN412

THE DEPUTY PRESIDENT: Yes.

PN413

MR MADDISON: Where the freedom of association provisions, where the termination of agreement may not of itself effect that right although I think that's certainly on one view the same kind of argument that I'm running in both the section 400 that maybe appropriate but I recognise your decision in Chubb and if I may have some powers, I may not be able to.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN414

THE DEPUTY PRESIDENT: Yes, you might persuade me if it was somebody else's decision it was wrong but you wouldn’t persuade me if it was mine probably.

PN415

MR MADDISON: That's my way of thinking, your Honour, too, but I think section 400 is a different matter where you as I said being asked to terminate an agreement.

PN416

THE DEPUTY PRESIDENT: Yes.

PN417

MR MADDISON: In circumstances if we're right that is the very vice that this provision seeks to prevent happening.

PN418

THE DEPUTY PRESIDENT: All right, so that's section 400. What was the other section?

PN419

MR MADDISON: 804, discrimination against employer in relation to industrial instruments. I should point its my understanding of the freedom of association provisions by virtue of 786 that this part of the Act does apply to the Commonwealth so where it talks about a first person in section 804, we would say that the Commonwealth can be that first person who should not discriminate against another person because their employees are covered by a particular kind of industrial instrument. We would say the particular kind of this circumstance is a union collective agreement or it may also be a non compliant agreement which has been validly served binding its lawful in all respects.

PN420

THE DEPUTY PRESIDENT: Yes.

PN421

MR MADDISON: It is for those reasons that we do seek the documentation as we say it's pretty relevant to those points to see how it is that the Commonwealth say that they are not allowing Thiess to successfully tender for a certain project and whether they are doing that lawfully or not.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN422

THE DEPUTY PRESIDENT: Is that documentation still available, Mr Gosling? I did mention it to you last time that it might become relevant depending on the position that was taken by the CFMEU in respect of opposing the terminations?
---I think the document is still in my files, your Honour, I'll check when I'm out of the stand.

PN423

Yes. Well, you can have a look now for that?---I do have a copy of correspondence, your Honour, from the Australian Government Department of Defence and attached to that is the letter detailing the fact that Thiess enterprise agreement is inconsistent with the national code.

PN424

Yes. All right. Was that the document that you mentioned last time, is it?---It is, your Honour.

PN425

Yes. All right, well, you might want to hand that up.

PN426

MR MADDISON: May I just take a moment to read the document, your Honour.

PN427

THE DEPUTY PRESIDENT: You right, Mr Maddison.

PN428

MR MADDISON: Yes, thank you, your Honour. Now, does this matter need to be marked?

PN429

THE DEPUTY PRESIDENT: Yes, I probably should mark this.

EXHIBIT #A4 INFORMATION ON REFUSING TENDER

PN430

MR MADDISON: Mr Gosling, could you describe what A4 is?---A4 was information provided to Thiess following our unsuccessful applications for tender for a project on HMAS Cresswell and it's an advice back to us indicating the fact that one of the reasons our tender was not accepted was that the agreement in force in New South Wales at that time did not meet the requirements of the national code and that is confirmed at 1.7 where it says:

PN431

In our view the three tenders being submitted by x x x and Thiess do not confirm with the mandate requirements of RFT

PN432

Which stands for request for tender -

PN433

And should be rejected.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN434

And it is our understanding that this information was provided to the Department of Defence by the Department of Employment Workplace Relations and was one of the reasons why our request for tender, as indicated in 1.7, was not accepted following some six months of work via our meeting.

PN435

Were there other reason you were aware of that the tender wasn’t successful?
---There were.

PN436

And what are they?---I am unaware, they are commercial issues, but there was more than one reason. I think there was three to four other reasons but in part one of them was the view of the Department of Workplace Relations that the agreement which was based in New South Wales would not meet the requirements, the national code. It wasn’t said that this was the reason but it was certainly one of the things that they found as stated in 1.7.

PN437

But the reason you're seeking to have these agreements before your Honour terminated is to ensure that the same problem doesn't happen again to the employer?---We are certainly seeking to remove what we've found to be one of the impediments. We'll see the other impediments were being matters dealt with by other people within the organisation if they are impediments on the subsequent tenders.

PN438

But those aren’t matters dealing with the agreement or things that the Commission can assist?---No they're not, they are commercial matters and I'm not aware of the details.

PN439

Have you sought to terminate the New South Wales agreement as well,
Mr Gosling?---The New South Wales agreement has been replaced by a subsequent agreement which has been found to be compliant.

PN440

Thank you, Mr Gosling. No further questions

PN441

THE DEPUTY PRESIDENT: There'd obviously be no re-examination in the circumstances, Mr Gosling, unless you want to ask yourself a few questions?---I might not like the answers, your Honour. You can step down - - -

PN442

MR QUIGLEY: I wonder if I could ask Mr Gosling some questions.

PN443

THE DEPUTY PRESIDENT: I'm sorry, Mr Quigley, I should have provided you the opportunity, I'm sorry.

**** GRAHAM LESLEY GOSLING XN MR MADDISON
PN444

MR QUIGLEY: Mr Gosling, Mr Maddison asked you a question about absent the AWU agreement whether or not that civil constructions agreement would apply to the employees at Craigieburn. What about absent the AWU agreement would the company have considered any other form of agreement to apply to those employees?---I think I've indicated at the outset, we wouldn’t have employed anybody absent an agreement at all but, yes, there was consideration of other forms of agreement.

PN445

Yes?---When we failed to reach an agreement with the CFMEU and we we're in discussions with the AWU it was seen that an agreement there was very possible and we continued on those negotiations until an agreement was entered into. Up until that point of time any workers who'd been undertaken by the classifications that might have been employed was undertaken by subcontracting arrangements and after the agreement was put in place a view was taken that some of that work should be done by direct labour and sought to reengage or engage some employees to carry out that work.

PN446

No other questions, your Honour.

PN447

THE DEPUTY PRESIDENT: Thank you, Mr Quigley, and thank you,
Mr Gosling, and I apologise Mr Quigley for not providing you with the opportunity.

<THE WITNESS WITHDREW [2.53PM]

PN448

THE DEPUTY PRESIDENT: Mr Maddison?

PN449

MR MADDISON: Your Honour, the first primary submission is in the view of the evidence of Mr Gosling in relation to the evidence before the Commission in relation to the engagement of carpenter. We say that a carpenter cannot be covered by the AWU agreement. It falls outside the scope of that and is therefore covered by the civil agreement which is being sought to be terminated today. Whether or not the company is paying that person pursuant to that agreement or not to say it doesn’t matter, if it's a matter of fact the company is paying the person under the AWA agreement - - -

PN450

THE DEPUTY PRESIDENT: If it was a matter of fact - if as a matter of fact the individual is covered by the civil agreement then the Commission has an obligation under the Act to seek - - -

PN451

MR MADDISON: That person's views.

PN452

THE DEPUTY PRESIDENT: That person's views so I'm not arguing about that Mr Maddison.

PN453

MR MADDISON: Yes, and we say that is the situation.

PN454

THE DEPUTY PRESIDENT: Yes.

PN455

MR MADDISON: Before any further action can be taken by the Commission, Mr Ogden, I believe it is, that person's views must be sought prior to what weight or what influence that has is obviously another matter but the prerequisite before we get to the termination is to obtain the views.

PN456

THE DEPUTY PRESIDENT: Yes.

PN457

MR MADDISON: We say that that is required. But if we are wrong about that we say that for the reasons identified if we can broadly call it that, that section 400 and freedom of association reasons specifically the submission in support in relation to section 400, a person must not relevantly engage in other action and that would be the refusal to allow somebody to successfully tender, that would be the action we say falls under the - outside industrial action in an attempt to co hearse another person to relevantly terminate a collective agreement. I've put submissions in relation to that.

PN458

We say that evidence before you is quite clear that the motivating force behind Thiess making this application I can understand it in an economic sense is how the agreement is terminated so it doesn't impede their ability to win future work of funded or partially funded or Commonwealth projects.

PN459

THE DEPUTY PRESIDENT: Can I just ask you, Mr Maddison, do you accept that in coming to the sort of determination that you are asking the Commission to come to with respect to the termination of the agreement would require a finding first of all by the Commission that there was in fact a breach of section 400 and for that matter the other one that you relied upon which I think was section 800, was it not, 804?

PN460

MR MADDISON: Whether you have to go so far as to make a finding, we don’t say you have to go quite that far.

PN461

THE DEPUTY PRESIDENT: Well, if the Commission doesn’t find that there is coercion or discrimination and any respectively then how can it come to a view that terminating the agreements is contrary to the public interest because it would have the effect of abetting, assisting, supporting, whatever word you want to use, such a breach, if no breach has been found.

PN462

MR MADDISON: I suppose in relation to finding I suppose what I was referring to perhaps is that the Commission couldn't make a declaration in those terms and perhaps form a view based upon the material.

PN463

THE DEPUTY PRESIDENT: Well, I don’t think there's anything that inhibits the Commission from, in the process of coming to a determination about a particular matter, making findings at law about other matters.

PN464

MR MADDISON: Yes.

PN465

THE DEPUTY PRESIDENT: I don’t think there's any and I think there's ample authority up to the High Court that supports that proposition.

PN466

MR MADDISON: Yes. I suppose I was perhaps getting a bit too legalistic in my terms, but yes, along the way I'll determine this matter using your terminology to make a finding that this would be a breach.

PN467

THE DEPUTY PRESIDENT: Yes. So you do say that to come to the view that you want the Commission to come to or you seek this Commission to come to with respect to the determination would require a finding of breach in respect of both of those provisions?

PN468

MR MADDISON: Yes, or at least one of those provisions.

PN469

THE DEPUTY PRESIDENT: At least one, yes.

PN470

MR MADDISON: Yes.

PN471

THE DEPUTY PRESIDENT: Okay. Thank you.

PN472

MR MADDISON: And we say that there sufficient material before you to make that finding, to form that view, your Honour. Your Honour, the third part of our argument - I think, last week Mr Quigley provided a copy of the Full Bench decision in Kellog Brown & Root or the Esso matter. I just want to refer the Commission to paragraph 23 which really picks up a distinction between private interests, if you can describe it that way of the parties before the Commission as opposed to the public interest.

PN473

THE DEPUTY PRESIDENT: Yes, to the public interest. Yes. Sorry, just give me a second to find it. Paragraph 23, you say?

PN474

MR MADDISON: Yes.

PN475

THE DEPUTY PRESIDENT: Yes.

PN476

MR MADDISON: Which refers to a notion that public interest refers to matters that might affect the public as a whole such as achievement or otherwise of various objects of the Act, employment levels, inflation, maintenance and proper industrial standards. They then give an example which is not relevant to the current situation given the further material provided to you by Mr Gosling but then goes on to say:

PN477

That while the content in relation to the public interest cannot be precisely defined as a distinctive nature from the interests of the parties although the public interest in which the parties ...(reads)... a distinction between them.

PN478

There is also a matter we have provided, one other decision, a decision that has been off quoted in other matters relating to section 170MH, the decision of Justice Munro in Joy Mining Machinery who also discusses other private distinction.

PN479

THE DEPUTY PRESIDENT: Any particular part of the decision?

PN480

MR MADDISON: Yes. Your Honour, if you could have regard to page 924, paragraph 34:

PN481

However it doesn't apply in my view that all considerations that may appear to be relevant to the merits of terminating an agreement from the parties' point of view are considerations relevant to establishing public interests and the effect of terminating an agreement.

PN482

Then a further two sentences into that paragraph, your Honour:

PN483

The concept of public interest doesn't in my view embrace considerations which are essentially derivative from the individual interest of the employer or employees.

PN484

We say that what is being put before you today, your Honour, and it is perhaps
Mr Quigley who has summed it up the best last week in PN239 where he says:

PN485

It would stand to reason that it is in the company’s interest to ensure that it in fact has an industrial instrument that does comply with the code.

PN486

We say that the material before you today is also centred around the private interest of Thiess and has not - - -

PN487

THE DEPUTY PRESIDENT: Well, I think I made it clear last time and I'll make it clear again to the extent that I need to, I won't be terminating these agreements because it's in Thiess' interest that I should do so. That's not the admonition of the Act. The admonition of the Act is that I must terminate the agreements on application unless it contrary to the public interest to do so.

PN488

MR MADDISON: Yes.

PN489

THE DEPUTY PRESIDENT: That's the assessment that I'll be attempting to make.

PN490

MR MADDISON: Yes, your Honour. I appreciate that. We've put some submissions to you as to why we say it's contrary.

PN491

THE DEPUTY PRESIDENT: You have, yes.

PN492

MR MADDISON: - - - to the public interest.

PN493

THE DEPUTY PRESIDENT: Yes.

PN494

MR MADDISON: But we also say it is, as in all matters before you, it's a matter of you forming a view or being satisfied of certain requirements. We say in the circumstances where it all has been put to you by the applicant is that it's in our interest, we, in our submission, fail to see how you can form a view that it's not contrary to public interest.

PN495

THE DEPUTY PRESIDENT: Well, with respect, Thiess has gone further than that. They have said as you rightly point out that or it was at least as I recall something similar was said by Mr Quigley and I think Mr Gosling that it was in Thiess' interests and I don’t think Mr Gosling would deny that it's in Thiess' interest. But I think Mr Gosling did go further than that and he did say in fact that it's not contrary to the public interest. Now, you've got a different view and I've now heard that view and I can make an assessment of that basis.

PN496

MR MADDISON: Yes. The final point I wish to make, your Honour, is going back to a Full Bench decision, paragraph 33, in the Esso matter where one of the matters that were referred to in relation to the public interest is the various objects of the Act. I can take you to section 3 of the amended Act and this object is broadly in similar terms to the old one of the Act as it stood when the agreement was made and that is ensuring as far as possible primary responsibility for determining matters affecting employment relation rest with the employer and the employees at the workplace or workplace level.

PN497

Now, we say that given that the motivating force behind these applications is third party intervention even if we are wrong with section 400 and 804, it's still quite clearly a third party trying to say to the parties ..... what kind of agreement should apply. We say that this contrary to the object of the Act and one may not fix the Act therefore it would be contrary to public interest to terminate an agreement where that is the case.

PN498

THE DEPUTY PRESIDENT: Yes, well, they do say that in the context of, if you wish to do work for the Commonwealth then the content of your agreement should be particular, I mean, that's the distinction that I would make from what you've just said, Mr Maddison. They say - they make the point that you make but I think it's with the qualification that this must be the case if you wish to tender for or be considered as a tenderer for work for the Commonwealth.

PN499

MR MADDISON: Your Honour, with respect we say that has to be wrong. If Grogan said to their contractors you can only successfully tender on our site on the basis that you have A, B, C D, and not E, F, G, even though you may otherwise agree between yourselves and the union and employees, we would say that quite clearly is conduct which breaches the Act.

PN500

THE DEPUTY PRESIDENT: Yes.

PN501

MR MADDISON: I mean, just because the government says it doesn’t make it lawful.

PN502

THE DEPUTY PRESIDENT: No, I'm not taking issue with it, I was more putting the qualification on what you said and I make no comment either way about whether there is a breach - - -

PN503

MR MADDISON: Yes.

PN504

THE DEPUTY PRESIDENT: At this point.

PN505

MR MADDISON: Yes. And the other object that we rely upon which really comes back to the point we made about section 400 and 804 is maintaining under subsection (j) of section 3, ensuring freedom of association, which is a provision under section 804, but if we're wrong on that then we're not going to necessarily consider 3(j), but it does lead back to what we picked up on the Full Bench decision. Those are the submissions of the CFMEU.

PN506

THE DEPUTY PRESIDENT: Thanks, Mr Maddison.

PN507

MR MADDISON: Thank you, your Honour.

PN508

THE DEPUTY PRESIDENT: Mr Gosling. Just before you rise, Mr Gosling, in respect of the issue raised by Mr Maddison with the employee, Ogden, I think was the employee, the carpenter.

PN509

MR GOSLING: Yes, your Honour.

PN510

THE DEPUTY PRESIDENT: There seems to me to be two ways perhaps that we could handle that. There could be a great deal of definitional argument as to whether or not Mr Ogden's employment does fall under the terms of the AWU agreement and that would go to argument about the definitions of the terms in both the agreement and the award or alternatively we could accept that there is some question perhaps over whether Mr Ogden is covered and we err on the side of providing the opportunity to Mr Ogden to provide a view to the Commission on the termination of the agreement should he - it is a he, I think, yes, Mr Alan Maxwell Ogden, should he wish to do so.

PN511

I could make a time available at 10 am tomorrow morning, such that Mr Ogden if the company was able to make him available and he wished to put a view forward that he would be enabled to do so. In saying that I don’t necessarily accept or I'm not necessarily accepting that Mr Ogden's employment is covered by the terms of the civil agreement, I just think we might be facing a fair bit of research and perhaps argument as to the relevant awards and agreements absent such an opportunity.

PN512

MR GOSLING: We have no trouble in contacting Mr Ogden to see if he does wish to put a position in relation to this matter and see if we can make him available tomorrow morning.

PN513

THE DEPUTY PRESIDENT: Yes.

PN514

MR GOSLING: If that's the time when the Commission can set.

PN515

THE DEPUTY PRESIDENT: Yes. Well, as I say, I'm prepared to set aside 10 am tomorrow morning and that would be on the basis that you, Mr Gosling, on behalf of Thiess ensure that Mr Ogden is contacted and advised that opportunity is available to him if he wishes to avail himself of the opportunity.

PN516

MR GOSLING: I'm certainly happy to do that, your Honour.

PN517

THE DEPUTY PRESIDENT: Yes. You don’t raise any objection with respect to anybody else on that list, Mr Maddison?

PN518

MR MADDISON: No, you don’t, your Honour.

PN519

THE DEPUTY PRESIDENT: No.

PN520

MR MADDISON: Just in relation to that point and I'm happy to hear
Mr Gosling's response, we would like an opportunity to talk to Mr Ogden as well. It might not be something that is apparent to you what is being asked and obviously we'd like to broaden some advice about what the nature of the - - -

PN521

THE DEPUTY PRESIDENT: Absolutely, and - - -

PN522

MR MADDISON: - - - as opposed to what he might want to say.

PN523

THE DEPUTY PRESIDENT: Yes, absolutely. There shouldn’t be any difficulty with you having whatever conversation. I assume Mr Ogden is a member of yours?

PN524

MR MADDISON: I understand that he is, your Honour, yes.

PN525

THE DEPUTY PRESIDENT: Yes. Then you're fully entitled to do so but I'm simply placing the responsibility of making sure that Mr Ogden knows that the opportunity is available to him on Mr Gosling. There was nothing in what I said.

PN526

MR GOSLING: No, I didn’t take it that way.

PN527

THE DEPUTY PRESIDENT: No.

PN528

MR MADDISON: I just wanted to make it clear that we'd like to have an opportunity to speak to him as well and we weren't going to be going behind the company's back or anything of that nature.

PN529

THE DEPUTY PRESIDENT: No, that's fine.

PN530

MR GOSLING: Can I just raise a point on that, your Honour, in terms of opinion of freedom of association, I'm not aware of whether Mr Ogden is or isn’t a member of the CFMEU and whether or not it should be more properly put to
Mr Ogden does he want to seek to have discussions with any relevant association and any member of rather than the reverse position that he be approached by the CFMEU.

PN531

THE DEPUTY PRESIDENT: Well, if he's a member of the union then I don’t see that there's any inhibition in the union corresponding one way or another with its member, Mr Gosling, and whether that's done within the company's time or in some other time it would seem to me that there's nothing to prevent - - -

PN532

MR GOSLING: Your Honour, I'm not aware whether he is or is not a member.

PN533

THE DEPUTY PRESIDENT: Presumably Mr Ogden is capable of determining who he wishes to talk to at any point in time and if the union contacts him and he doesn't want to talk to them then he's capable of letting them know that. Similarly if he doesn’t want to talk to me he's capable of letting me know that via you

PN534

MR GOSLING: Yes, your Honour.

PN535

THE DEPUTY PRESIDENT: So, you accept that we handle the matter in that way, I think it will obviate the other arguments as to coverage and the end result of the other way is that we may well find that Mr Ogden is in fact covered as
Mr Maddison says by the civil agreement so we might just foreshorten matters by doing it the way I've suggested.

PN536

MR GOSLING: Anyway the evidence I wish to put to Mr Ogden about is his acceptance of employment on the project and the term that in which he agreed to be employed.

PN537

THE DEPUTY PRESIDENT: Yes, but his actual coverage in his classification, Mr Gosling, well as simply as Mr Maddison pointed out will be a matter of fact. I don’t know I'm suggesting this for any other reason than it may be that Mr Ogden is covered by the civil agreement. It may be that he's covered by the AWU agreement. If the fact is that he's covered by the civil agreement then I've got an obligation under the Act to obtain his view along with anybody else who's covered by that agreement but at the moment there's only some suggestion that he is.

PN538

So the only reason for his appearance would not be to have discussion, cross-examination or anything else as far as Mr Ogden would be concerned, it would be for the Commission to obtain his view. In fact prior circumstances in the Chubb matter I obtained the views of a range of employees of Chubb and I did it absent both parties, both the employer and the union. I might elect to do similarly here. The only requirement upon the Commission is that the Commission must obtain the views not that the union or the company should obtain those views. So, I'm simply saying if it was the fact that he is covered by this agreement then I'm prepared to hear his view.

PN539

MR GOSLING: Yes, your Honour.

PN540

THE DEPUTY PRESIDENT: And I'm prepared to do that at 10 am tomorrow morning and I would simply ask that the company make him aware of that and secondly make him available if it is his wish to provide such a view. From my part if Mr Maddison or a representative of the union wishes to contact Mr Ogden as their member then I would see no particular issue about that. I would see no issue about you providing Mr Ogden with your view as to determination of the agreement anymore than I would see an issue with Mr Maddison providing
Mr Ogden with his view but ultimately the only view that I'll be interested in with respect to the employee party will be Mr Ogden's view that he provides to me.

PN541

MR GOSLING: Thank you.

PN542

THE DEPUTY PRESIDENT: I was a bit long winded but I think you got the point. So we can take that you will make it known to Mr Ogden that the opportunity is available to him.

PN543

MR GOSLING: Yes.

PN544

THE DEPUTY PRESIDENT: And you will make him available should he wish to avail himself of that opportunity?

PN545

MR GOSLING: We will do it, yes.

PN546

THE DEPUTY PRESIDENT: Thank you. All right, I'll hear you in respect of anything further you want to say in response to Mr Maddison.

PN547

MR GOSLING: The only point I wish to deal with, your Honour, is the submission of Mr Maddison regarding section 400 and section 804 in respect of coercion not being aware that the argument's been run. I don’t have a copy of the relevant national code but it is my understanding and submission, your Honour, that if parties or companies wish to tender for Commonwealth work there are certain requirements. Parties or companies are free to do business with the Commonwealth and undertake work in every other field without being the requirement to be compliant with the national code.

PN548

Therefore your Honour I'm not sure there is any what we called coercion, it's a free choice of my company, a decision whether or not it wishes to tender for work for the Commonwealth and be therefore bound by the conditions which it sets out in terms of its contractual arrangement. One of those being that the national code of practice that applies to the construction industry where Commonwealth funding is provided is such a condition that must be compliant with and I'm not sure that it would be falling under a definition of coercion if the parties are free to then walk away and undertake other work in other locations where such a condition does not prevail.

PN549

So we would simply put that we do not see that provision is coercion in that sense and its up to the company which way it takes its business.

PN550

THE DEPUTY PRESIDENT: All right. Thank. Just before you sit down,
Mr Gosling, arcing back to the issue of Mr Ogden, I'd appreciate if further you can advise him that he wish to make his view to the Commission known absent anybody else, that is absent either representatives of the company or the union, that I will make that opportunity available to him.

PN551

MR GOSLING: Yes, your Honour, I will.

PN552

THE DEPUTY PRESIDENT: To the extent that you speak to him,
Mr Maddison, you might reinforce that as well.

PN553

MR MADDISON: Yes, your Honour.

PN554

THE DEPUTY PRESIDENT: Okay, thanks, Mr Gosling.

PN555

MR GOSLING: Thank you, your Honour.

PN556

THE DEPUTY PRESIDENT: Mr Quigley?

PN557

MR QUIGLEY: Your Honour, we don’t believe that in relation to section 400 or section 804 that Mr Maddison's raised are matters that the Commission need concern itself with. Alleged breaches of the Act aren’t really matters that are best dealt with here. Indeed they are matters more properly dealt with before an appropriate court if there are such breaches and the Commission we submit doesn’t need to concern itself with that. Subject to whatever Mr Ogden or for that matter any of the other employees covered by the Craigieburn agreement have to say in relation to the opportunity that the Commission is giving to them as is proper under the Act.

PN558

We would say that eve if there were employees covered by an agreement it still may not be contrary to the public interest to terminate such an agreement but that would depend on the other circumstances. What the Commission has had before it so far we don’t believe any grounds have been raised that would give cause to the Commission to find that there were public interest obstacles to termination but I would say that without hearing what the employees or at least Mr Ogden might say and I think that is a relevant consideration that the Commission would have to take into account.

PN559

THE DEPUTY PRESIDENT: Yes.

PN560

MR OGDEN: So I think, your Honour, that it might be that depending on or if Mr Ogden says anything a final submission on that point may have to wait until that time.

PN561

THE DEPUTY PRESIDENT: Yes. Well, look what I intend to do, if Mr Ogden does decide that he wishes to provide a view, is hear that 10 am in the morning. If he wishes it to be given to the Commission without the parties present and I intend to provide him with that opportunity I will advise Mr Ogden that I will have his view recorded so that it is available to the parties and I would convene again with all of the parties present after hearing from Mr Ogden if it in fact is his wish to provide that view privately. It may not be, he might be quite happy to provide the view with the parties present, if he wants to provide it at all.

PN562

In any event I will convene at 10 am tomorrow morning for that reason. Firstly, to hear from Mr Ogden if he wishes to and then to deal with any matters that might arise from that and further to the extent that I'm able to deal with the application itself.

PN563

MR GOSLING: Is it your wish, your Honour, that I give contact details
Mr Ogden of yourself so that he may if he wishes to have separate discussions
or - - -

PN564

THE DEPUTY PRESIDENT: Well, I don’t want to take it that far, Mr Gosling, because I need to obtain his views. I think it's fair that the parties are provided with an opportunity to respond to those views. That seems to me to be a just way of going however he may not be comfortable in giving those in your company. For that reason I would have those recorded but, I mean, the Act requires that I obtain his views. The authorities would suggest that those views really only become relevant to the Commission's determination to the extent that they bear upon the public interest and they may or may not.

PN565

To the extent that they do then it's probably fair that the parties have an opportunity to provide what submission they wish in respect of that and I'll provide that opportunity as I see fit tomorrow.

PN566

MR GOSLING: So, in taking that, your Honour, if Mr Ogden does wish to make his views known to you I should be indicating to him to be here at 10 am tomorrow morning and you may at that stage go off and have a private discussion.

PN567

THE DEPUTY PRESIDENT: I might have a discussion in the court with him with the recorder.

PN568

MR GOSLING: Absent us.

PN569

THE DEPUTY PRESIDENT: Without you, without Mr Quigley and without
Mr Maddison.

PN570

MR GOSLING: Yes. I just want to be clear in what I put to him.

PN571

THE DEPUTY PRESIDENT: Yes.

PN572

MR GOSLING: So there's no confusion about the point.

PN573

THE DEPUTY PRESIDENT: Yes.

PN574

MR GOSLING: Thank you, your Honour.

PN575

THE DEPUTY PRESIDENT: All right.

PN576

MR QUIGLEY: Your Honour, could I ask a question and it goes to the programming of tomorrow's proceedings and I don’t wish to interrupt anything but I have another commitment tomorrow morning, your Honour. Would it be asking too much if the Commission's good officers to ask if that 10 o'clock hearing could be delay say by one hour?

PN577

THE DEPUTY PRESIDENT: If nobody else has got any objection to that, make it 11 o'clock.

PN578

MR GOSLING: Yes, your Honour.

PN579

MR QUIGLEY: I appreciate that, your Honour.

PN580

THE DEPUTY PRESIDENT: Let Mr Ogden know it's 11 o'clock now.

PN581

MR GOSLING: Definitely, your Honour.

PN582

THE DEPUTY PRESIDENT: We're doing this for the Building Industry Commission.

PN583

MR GOSLING: Thank you very much, your Honour.

PN255

THE DEPUTY PRESIDENT: Good. Thank you. I'll adjourn until 11 am tomorrow morning.

<ADJOURNED UNTIL THURSDAY, 29 JUNE 2006 [11AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A3 AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION DOCUMENT PN287
GRAHAM LESLEY GOSLING, RECALLED AND RESWORN PN304
CROSS-EXAMINATION BY MR MADDISON PN304
EXHIBIT #A4 INFORMATION ON REFUSING TENDER PN429
THE WITNESS WITHDREW PN447