C2007/342, Transcript of Proceedings [2007] AIRCTrans 271 (7 June 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16940-1

COMMISSIONER THATCHER

C2007/342

s.496(1) - Appl’n for order against industrial action (federal system).
Coles Group Ltd
and
National Union of Workers
(C2007/342)

SYDNEY

2.03PM, WEDNESDAY, 23 MAY 2007

PN1

PN1

MR R MARASCO: I seek leave to appear on behalf of the applicant in this matter, Coles Group Limited, together with MR E O'NEIL, Operations Manager North of Coles Group Limited and MR S BENNETT, the Distribution Centre Manager of the Smearton Grange site.

PN2

MR A JOSEPH: I seek leave to appear on behalf of the respondent union, the NUW, together with MR S MUELLER, of the union, MR M COCHRANE of the union and a number of delegates from the affected site.

PN3

THE COMMISSIONER: No objection, I take it?

PN4

MR MARASCO: I’m instructed to object to counsel appearing, Commissioner.

PN5

THE COMMISSIONER: What is the grounds of your objection?

PN6

MR MARASCO: I'm sorry, Commissioner?

PN7

THE COMMISSIONER: What is the grounds of your objection?

PN8

MR MARASCO: We believe that we aren't represented by external parties of counsel of external law firms. We note that the union is represented by an industrial officer and it would be more appropriate for the industrial officer to represent the union, rather than counsel.

PN9

THE COMMISSIONER: That is it?

PN10

MR MARASCO: Yes, Commissioner.

PN11

THE COMMISSIONER: Okay, thank you. Leave is granted.

PN12

MR JOSEPH: Thank you, your Honour.

PN13

THE COMMISSIONER: Yes, Mr Marasco.

PN14

MR MARASCO: Thank you, Commissioner. Just a couple of procedural matters. The first one is the section 496 application. There's just a couple of amendments that I would like to make to it. Would now be a convenient time for you, Commissioner, to take you through those?

PN15

THE COMMISSIONER: Yes, if you like. Yes.

PN16

MR MARASCO: If I can take you to item 2 of the background about the distribution centre. I just wanted to add that the distribution centre supplies to the Coles Group brands, including Coles supermarkets, Kmart, Officeworks and Target.

PN17

THE COMMISSIONER: We are looking at background paragraph 2?

PN18

MR MARASCO: That is correct.

PN19

THE COMMISSIONER:

PN20

CGL operates a distribution centre situated at 80 Harley Road, Smearton Grange. The Smearton Grange distribution centre is a general merchandise and accessories distribution centre that services Coles Group Limited stores and - - -

PN21

MR MARASCO: Including Coles supermarkets.

PN22

THE COMMISSIONER: Yes.

PN23

MR MARASCO: Kmart.

PN24

THE COMMISSIONER: Yes.

PN25

MR MARASCO: Officeworks.

PN26

THE COMMISSIONER: Yes.

PN27

MR JOSEPH: Target.

PN28

THE COMMISSIONER: Yes, thank you.

PN29

MR MARASCO: Then in item 3 it should actually be 700 employees. There's approximately 700 FTE employees, not 150.

PN30

THE COMMISSIONER: Okay.

PN31

MR MARASCO: Then in item 5 that reads:

PN32

The union organiser and union delegates have threatened industrial action.

PN33

It should only be, "The union organiser has threatened", not the union delegates.

PN34

THE COMMISSIONER: Right.

PN35

MR MARASCO: Then there's just a couple of other amendments, Commissioner. If I could take you to page 3 of the application.

PN36

THE COMMISSIONER: Yes.

PN37

MR MARASCO: Paragraph 2.3.

PN38

THE COMMISSIONER: Yes.

PN39

MR MARASCO: It should only be, "The persons listed in clause 2.1(d) above", not and (g)".

PN40

THE COMMISSIONER: Yes.

PN41

MR MARASCO: And 3.1 should read, "All persons and organizations listed in clauses 2.1(b) to (d)", rather than "(f)".

PN42

THE COMMISSIONER: Yes.

PN43

MR MARASCO: That was the only amendments, Commissioner. Thank you for that, Commissioner.

PN44

THE COMMISSIONER: Leave is granted.

PN45

MR MARASCO: Thank you. The other procedural matter is if I just may check how late the Commission would intend to sit tonight?

PN46

THE COMMISSIONER: Well, I'm intending to sit till it's finished.

PN47

MR MARASCO: Yes, because I have to fly to Canberra tonight at 7 o'clock for a meeting at Parliament House and what I was going to suggest, if we are not finished tonight, is that if it suits the Commission to be rescheduled tomorrow. I can appear by video link from the Canberra Commission. But I would certainly anticipate - we have only got two witnesses. We put in the witness statements. We did that to try to facilitate the efficient resolution of the matter, so based on my previous experience dealing with these matters, I would be confident we could conclude the matter by around 5 or 6 o'clock today. But I just thought I would flag my other commitment.

PN48

THE COMMISSIONER: I think why don't we see how we go and we can revisit that in a couple of hours.

PN49

MR MARASCO: Yes, certainly, Commissioner.

PN50

THE COMMISSIONER: Obviously you are aware of the provisions of 496(6) in respect of interim orders?

PN51

MR MARASCO: Yes, certainly, Commissioner.

PN52

THE COMMISSIONER: Yes.

PN53

MR MARASCO: That is the only procedural matters that I have before we begin our application, unless Mr Joseph has any preliminary issues he wishes to deal with.

PN54

THE COMMISSIONER: Yes, Mr Joseph.

PN55

MR JOSEPH: I'm not sure if my friend is intending to open or whether he's intending to go directly into witness statements. So perhaps I won't say anything by way of opening at the moment. I suspect, subject to what falls from the witnesses, Commissioner, there will be one, possibly two, witnesses from the union's side.

PN56

THE COMMISSIONER: Yes.

PN57

MR JOSEPH: Indeed witness statements that are going to be relied upon, I understand, were received by my client some time late this morning, around midday. So there's been no opportunity to put any thing in reply in a written form but we are simply going to deal with the matter as best we can orally.

PN58

THE COMMISSIONER: Yes.

PN59

MR JOSEPH: So we are happy to proceed on that basis.

PN60

THE COMMISSIONER: Okay, well if you feel that you need a few minutes between to take some instructions, please just le me know.

PN61

MR JOSEPH: I appreciate that. I appreciate that, Commissioner, and unless again my friend is intending to say anything now that I need to reply to, then perhaps all of those witnesses who aren't about to give evidence could be asked to leave the courtroom and we can commence?

PN62

THE COMMISSIONER: Yes. Thank you, Mr Joseph.

PN63

Mr Marasco, has there been any discussion with the union prior, in respect of this matter?

PN64

MR MARASCO: No, there has not, Commissioner. That is something we are happy to put on the record now to resolve the matter. I have sought instructions from the site as to what they would like to have the matter resolved for us to not proceed with our application. What the company is seeking is for the NUW to give an undertaking to the Commission on the record that one, there will be no further unlawful industrial action and secondly, that the union will abide by the disputes resolution procedure that is contained in the Act.

PN65

The EBA is a preserved collective state agreement so the disputes resolution procedure within the EBA no longer applies and pursuant to the provision of section 694 of the Workplace Relations Act, we say that the model disputes resolution process is the one that should apply so we would like an undertaking from the union that they will comply with that disputes resolution process as it's contained in the Act. I'm instructed if the union is prepared to give those undertakings then we would withdraw our application for orders, pursuant to section 496.

PN66

THE COMMISSIONER: Yes, I see. So first of all there's an undertaking that there be no unprotected industrial action and secondly that the disputes resolution procedures be followed?

PN67

MR MARASCO: That is correct, Commissioner.

PN68

THE COMMISSIONER: Okay.

PN69

MR JOSEPH: Just to clarify, Commissioner. which disputes resolution procedure are you talking about?

PN70

THE COMMISSIONER: He is talking about the model, isn't it?

PN71

MR MARASCO: That is correct. Under section 694 of the Act, that is the model disputes resolution process because according to the schedule in the Act that deals with preserved state collective agreements, which is schedule 8 division 2 subdivision- - -

PN72

MR JOSEPH: If my friend is saying it for my benefit, I didn't need him to give me a lecture on where to find it.

PN73

THE COMMISSIONER: No.

PN74

MR JOSEPH: I just wanted to know which procedure he is talking about.

PN75

THE COMMISSIONER: I think he is talking about Division 2 Part XIII.

PN76

MR JOSEPH: Yes, that is fine.

PN77

THE COMMISSIONER: Do you want a moment to get instructions on this, Mr Joseph?

PN78

MR JOSEPH: Not really, Commissioner, because it's a fairly disingenuous request by Coles. What they are requesting goes well beyond what is sought in the order from my client's point of view. If I can take a step back though- - -

PN79

THE COMMISSIONER: They are fairly benign things though, aren’t they? He is just saying the disputes resolution procedure should be adhered to and no unlawful industrial action. I think that is basically what he was saying. I mean, I would understand where you are coming from, having the application lobbed on you without the consultation.

PN80

MR JOSEPH: Yes.

PN81

THE COMMISSIONER: But I am just giving you the opportunity if you wish to take a few moments to think about things.

PN82

MR JOSEPH: Can I say this? Sorry, Commissioner, I didn't mean to speak across you and if I can say this in perhaps the - I'm trying to think of the appropriate words, in relation to the model dispute resolution process, without appearing to give an opinion not strictly based on legal fact. This site has operated under a disputes procedure for a long period of time, which is in a form that is contained within the enterprise agreement and I'll use the old terms, Commissioner, if you don't mind?

PN83

THE COMMISSIONER: That is okay.

PN84

MR JOSEPH: Because I'm sure that is what everybody understands.

PN85

THE COMMISSIONER: Yes.

PN86

MR JOSEPH: That sets out a procedure that everybody understands and has followed. It has in it a status quo provision. As my friend points out, schedule 8 to the Reform Act, the Work Choices legislation says certain things about that no longer applying as a matter of law. Now, in a practical sense that causes a - walking away from things like the status quo provision causes my client some considerable difficulty. The point, I suppose, I was also going to get to is that for the ordinary person in the street, understanding what the model dispute resolution process actually entails, apart from seeking a person to assist you in resolving dispute, a third party, is not altogether that clear.

PN87

THE COMMISSIONER: Yes.

PN88

MR JOSEPH: Traditionally there has always been a process between this union and this company, whereby matters have been taken on board at site and they follow a greater process up to more senior levels of management in the union, before matters go any further. Giving an undertaking to follow the model dispute resolution procedure is not necessarily all that simple, in my submission. That is not something I can get instructions on today, in any case, to be perfectly honest.

PN89

Can I say beyond that - - -

PN90

THE COMMISSIONER: I guess the question maybe simply is industrial action being threatened at the moment?

PN91

MR JOSEPH: No. The answer is no.

PN92

THE COMMISSIONER: Is there likely to be industrial action in the foreseeable future, unprotected industrial action?

PN93

MR JOSEPH: Unprotected industrial action? My instructions are - sorry. We can't have a set of circumstances, Commissioner, where one delegate has been given a warning in a particular - this is arising out of a stop work meeting that took place on Saturday 21 April. My understanding would be, from the way I read the witness statements, and that is before I have cross-examined the witnesses, is that they are lining up the other delegate; they are going to give the other delegate who was involved a warning.

PN94

THE COMMISSIONER: No, it says here the meeting with Mr Gibbons has been scheduled for 23 May 2007 but has been postponed during the listing of this application.

PN95

MR JOSEPH: Yes.

PN96

THE COMMISSIONER: That is what it says.

PN97

MR JOSEPH: I suppose the reason I'm being loquacious - and I do try not to be - is that based on what we currently know to be the case, my instructions are no industrial action is threatened. I'm choosing my words carefully, Commissioner, for a reason. Mr O'Neil, for example, goes out to the site tomorrow and sacks all the delegates and again, I'm not ascribing any particular intention to Mr O'Neil or the management generally, but what I'm saying is that in that situation could I stand here before you and say that there is no intention to take industrial action? No, I couldn't say that. But there is none threatened.

PN98

THE COMMISSIONER: Yes. At the moment we have - I'm just trying to assist here - - -

PN99

MR JOSEPH: I appreciate that, Commissioner.

PN100

THE COMMISSIONER: - - - in the interests of time. Clearly this dispute is not going to be resolved by me trying to assist necessarily. There has to be some more discussion between the parties about what is going to happen in the future. As I understand it, at the moment we have the witness, not Mr Gibbons, Mr Antonio, is it, who has been given a warning?

PN101

MR JOSEPH: He has been given a warning.

PN102

THE COMMISSIONER: In the light of that there is no threatened industrial action, in your submission?

PN103

MR JOSEPH: That's correct. That is correct.

PN104

THE COMMISSIONER: You are aware that Mr Gibbons is scheduled to have a meeting which has been postponed and I think you indicated that it is probable that he may have a similar warning.

PN105

MR JOSEPH: Yes, that is what I understand to be the case and on the basis of what we, I suppose, predict will happen, my instructions are there is no industrial action threatened.

PN106

THE COMMISSIONER: Yes. If Mr Gibbons receives a similar warning to Mr Antonio, no industrial action is threatened?

PN107

MR JOSEPH: What I might do, Commissioner, if I might just take a moment?

PN108

THE COMMISSIONER: Yes.

PN109

MR JOSEPH: To clarify my instructions, to be sure. What I can say is I know that the union and the delegates are not happy about the warnings but I think - and that was one of the things, I think, those on my side of the table were hopeful could be kicked around today with the assistance of the Commission. Obviously it does not arise in a 496 application.

PN110

THE COMMISSIONER: Yes.

PN111

MR JOSEPH: But nevertheless, given that everybody seems to be here, perhaps that is something that could take place. But perhaps I should get those instructions first.

PN112

THE COMMISSIONER: Where I was heading was, if that is the case, we then feed that back to the employer and say, "Do you propose to proceed with your application today?" and if the answer was no - if it was yes, well we proceed but if it was no, perhaps we could proceed into conference. But that will be your call. So I will give you five minutes.

PN113

MR JOSEPH: Yes, thank you, Commissioner.

PN114

THE COMMISSIONER: Then we will come back.

PN115

MR JOSEPH: I appreciate that.

<SHORT ADJOURNMENT [2.21PM]
<RESUMED [2.39PM]

PN116

THE COMMISSIONER: Yes, Mr Joseph. Obviously the purpose of questioning the adjournment was to ascertain whether or not there are sufficient commitments from the union which will be of such comfort to the employer that we adjourn this application and proceed into conference, to see if we can resolve other fundamental issues; or alternatively we proceed with the application.

PN117

MR JOSEPH: Well, the answer to the question that I went outside to get instructions on was that based on what we know, and that includes what we suspect would happen to the other delegate tomorrow, no industrial action is threatened.

PN118

THE COMMISSIONER: No industrial action is threatened.

PN119

MR JOSEPH: No industrial action is threatened. Those are my instructions.

PN120

THE COMMISSIONER: Are you choosing your words carefully or does that assume that no industrial action is pending, probable?

PN121

MR JOSEPH: Correct. All three.

PN122

THE COMMISSIONER: All three.

PN123

MR JOSEPH: All three.

PN124

THE COMMISSIONER: So no industrial action is threatened- - -

PN125

MR JOSEPH: Is threatened, impending- - -

PN126

THE COMMISSIONER: Or probable.

PN127

MR JOSEPH: Well, it's certainly not impending and I would argue that in not being threatened, in not being pending and based on the set of facts that I put to you or were put to me and I think we have been discussing- - -

PN128

THE COMMISSIONER: Yes.

PN129

MR JOSEPH: - - - it could not possibly be probable.

PN130

THE COMMISSIONER: Okay.

PN131

MR JOSEPH: Certainly from my client's point of view, I'm not trying to be coy.

PN132

THE COMMISSIONER: Yes.

PN133

MR JOSEPH: In relation to that. I relayed that to - - -

PN134

THE COMMISSIONER: Is it your view that based upon that, it would be more productive to proceed into conference?

PN135

MR JOSEPH: Well, it must be. It must be, Commissioner, and in my respectful submission the jurisdictional facts required to be made out for the Commission to issue an order simply can't be made. But I informed Mr Marasco of that. He has told me that the company wishes to proceed with the application in any case, on the basis that my client was not prepared to give the undertakings referred to by him before we - - -

PN136

THE COMMISSIONER: You are giving me on the record an undertaking that on the basis of whatever warning et cetera, whatever it is has been given to Mr Antonio, and on the assumption that similar warning is given in respect of Mr Gibbons, no industrial action is threatened, pending or probable?

PN137

MR JOSEPH: Correct.

PN138

THE COMMISSIONER: You are suggesting that it might be beneficial for the Commission to convene a conference?

PN139

MR JOSEPH: Absolutely. I mean, my client wants to make further representations to Coles and wants the Commission's assistance in relation to these warning issues. Not only in relation to the warnings, but also to what that might mean for the future disputes procedures and things like that; but that does not involve industrial action.

PN140

THE COMMISSIONER: Yes.

PN141

MR JOSEPH: So, yes. The answer to your question is yes, Commissioner.

PN142

THE COMMISSIONER: Yes, I understand. Okay. Thank you, Mr Joseph.
Yes, Mr Marasco.

PN143

MR MARASCO: Commissioner, I've been instructed that Coles still wishes to pursue the initial undertakings we sought from the NUW. As you yourself indicated, Commissioner, I think they are a fairly benign request. All we are asking is that the union comply with the law; that they give an undertaking there be no further unprotected industrial action. We note that there was the incident on 21 April which Mr Joseph actually referred to as the stop work meeting. Now that was unprotected industrial action which occurred because three employees from another Coles site at Eastern Creek came to Smearton Grange to assist in the workload there. Coles are concerned that there could be further instances like that in the future.

PN144

I certainly hear what Mr Joseph says about there's no threatened industrial action if Mr Gibbons gets a warning. We do take some comfort from that, but because there has been a history of unprotected industrial action on the site, Coles insists that in order to withdraw our application, we do seek the undertaking from the NUW that no further unprotected industrial action occur.

PN145

THE COMMISSIONER: Is that not in effect what Mr Joseph has just given? I mean, that is what you are concerned with. I though that that was - and I'm keeping an open mind on this, but I thought your application was based on the concern that certain statements had been made which led you to be concerned that should such warnings be given, it will be on the grass or whatever.

PN146

MR MARASCO: Yes.

PN147

THE COMMISSIONER: We have got on the record an undertaking now from Mr Joseph that if that action occurs in respect of the second individual, the same as the first delegate, that no industrial action is threatened, pending or probable.

PN148

MR MARASCO: Yes.

PN149

THE COMMISSIONER: There is this issue about how the dispute resolution procedures should operate in the future.

PN150

MR MARASCO: Yes.

PN151

THE COMMISSIONER: Understandably so, let us face it. I mean there was an agreement and there needs to be discussion on that between the parties and I think what is being said, "Well, why don't we spend a bit of time, Commission assist, by establishing that?"

PN152

MR MARASCO: Yes.

PN153

THE COMMISSIONER: Talking that through, because I'm not sure whether or not we all understand what that undertaking might mean.

PN154

MR MARASCO: Yes, certainly.

PN155

THE COMMISSIONER: I mean, there has to be procedures; it has to start low level and obviously if we don't - I take it your interest is to ensure that , you know, an agreed dispute resolution procedures take place?

PN156

MR MARASCO: Yes.

PN157

THE COMMISSIONER: All we have got at the moment is, I think, you are seeking an undertaking along those lines; we have got the union saying they want to discuss it. I'm sort of at a little bit of a loss as to understand what is the concern. I simply ask you, in the interests of time, in the light of what has been said, do you want to proceed with the application or would you like to put it aside for the moment and proceed into conference?

PN158

MR MARASCO: Yes, look, I might seek instructions again. I apologise for the delay, Commissioner, but what Mr Joseph actually ended up saying on the record seemed to be a little bit more than what he had indicated to us before we actually went back on the record. So in light of what he has now said on the record, and that has been accepted by the Commission, if I could just have a few minutes with my people so we can discuss it further before coming back to let you know where we stand?

PN159

THE COMMISSIONER: Five minutes is okay?

PN160

MR MARASCO: Yes, that should be sufficient, Commissioner. Thank you.

<SHORT ADJOURNMENT [2.47PM]
<RESUMED [2.56PM]

PN161

MR MARASCO: Thank you for allowing us that adjournment, Commissioner. I have discussed this matter now with the management from Coles and our position is as follows: firstly, we are prepared to withdraw our section 496 application. We are satisfied with what Mr Joseph has said on the record on behalf of the NUW, specifically that no industrial action is threatened, impending or probable. Secondly, we also note that the NUW has recognised that the model disputes procedure in the Workplace Relations Act is now law. The company intends to abide by that dispute resolution procedure.

PN162

We are prepared to have discussions at the site between the local union delegates and the management about how that disputes resolution procedure should work in practice. We think it's more appropriate the discussion begin at that initial stage at the site, but we would be happy to seek the assistance of the Commission down the track if we feel that was necessary.

PN163

THE COMMISSIONER: Thank you, Mr Marasco.

PN164

MR MARASCO: Thank you.

PN165

MR JOSEPH: Commissioner, can I say this: the union is not going to resile from what it said beforehand about the undertaking. We are not going to resile from that. There is a very serious issue and just so Mr Marasco understands in simple terms what the union is saying, if the company, if Coles is going to walk away from any aspect of the enterprise agreement, including the disputes procedure which is regularly quoted verbatim to the delegates if the company feels they are not abided by, but I mean the disputes procedure in the enterprise agreement, then that is going to create an issue between the parties. That is a matter that is going to need to be discussed and resolved upon in the very, very near future.

PN166

THE COMMISSIONER: Yes.

PN167

MR JOSEPH: Because at a site where you have got upwards of 700 members, you have all sorts of issues that can arise and we are not having people trip up, delegates in particular, or members trip up over alleged breaches of a procedure that essentially amounts to the parties have to genuinely try to resolve matters at the local level.

PN168

THE COMMISSIONER: Well, I don't think we will hold Coles responsible for whoever wrote the Work Choices legislation.

PN169

MR JOSEPH: Not personally, Commissioner. Not personally.

PN170

THE COMMISSIONER: No. But I mean the law is the law. The Act is the Act. The model dispute resolution procedure which now appears to be the law does allow a considerable amount of flexibility, does it not, for the discussions; and the discussions may end up meaning that the process may be very similar, if not identical, to what is in the preserved state collective agreement.

PN171

I mean, 695 says:

PN172

The parties to the dispute must genuinely attempt to resolve the dispute at the workplace level.

PN173

So the discussions that are going to take place is about what does that mean and presumably you are not going to start with a blank piece of paper. You will be looking at the procedure, amongst other things what is in the 2005 Enterprise Agreement. So it is imperative it seems to me, sitting here as an observer, that what you say is correct; that this is a very important issue and the conference needs to be held as soon as practicable. Priority and urgency and I - sorry?

PN174

MR JOSEPH: I'm just concerned that - my client doesn't want Coles walking away from here today saying that my client's view is that the disputes procedure in the enterprise agreement should not apply, because that is my client's position. We know what the Workplace Relations Act says.

PN175

THE COMMISSIONER: It may not be incompatible though, may it?

PN176

MR JOSEPH: No.

PN177

THE COMMISSIONER: The two can be - - -

PN178

MR JOSEPH: We are not incompatible No, no, I appreciate what you are saying.

PN179

THE COMMISSIONER: I have not heard from Coles as to whether they are grossly dissatisfied with the disputes resolution procedure. I assume they might be dissatisfied if a disputes resolution procedure was not adhered to, but I haven't heard from them that the disputes resolution procedure per se needs to be altered dramatically. I think al that has been put to me is rather than me barge in with my elbows and say, "Well, I want to fix this" - which I mean that is my natural instinct - they are saying, "Well, let's have discussions at the local level". If that is going to be so, I would like to see that happen as soon as possible, you know, within tomorrow or whatever; the next day. Certainly not put off so this thing can manifest and I would again make myself available at very short notice to assist with this process.

PN180

MR JOSEPH: I don't know if Mr Gibbons, the other delegate, is going to get a warning tomorrow. It has to be regarded as a possibility, based on what has happened to Mr Antonio.

PN181

THE COMMISSIONER: Yes.

PN182

MR JOSEPH: D'Antonio, excuse me. But if that were to take place after reasoned and sensible discussion between the parties, those warnings, the way in which they came about, what it means for the future - because I think that is also very important for the parties - that would need to be part of those discussions as well, from my client's point of view. Those would be matters we would be wanting to agitate before you, Commissioner, if that can't be resolved between the parties.

PN183

Having said that, though, I think from my client's point of view, I don’t know - I'm sorry, Commissioner, do you want to?

PN184

THE COMMISSIONER: No, no. Sorry, I am just listening.

PN185

MR JOSEPH: Yes. Subject to your availability, I would have thought - I'm sure the union and the members want to get these matters dealt with ASAP so, not wanting to be pessimistic, but if the parties can't resolve the matters within the next 7 days I'm wondering if the Commission can make itself available to assist the parties by way of conference at some time, you know, in or about that timeframe? In a week or so?

PN186

THE COMMISSIONER: I'm sure that would be so. I haven't got anything desperately - well I'm not available on Friday the 1st but I'm certainly available on Monday the 4th or Tuesday the 5th. I can make myself available.

PN187

MR MARASCO: Sorry, Commissioner, I was talking to Mr O'Neil.

PN188

THE COMMISSIONER: I think the question is; if these discussions that re taking place at a local level as a matter of urgency, would the Commission be available to assist should there be some difficulty if the matter wasn't resolved within 7 days or so.

PN189

MR MARASCO: Yes.

PN190

THE COMMISSIONER: I was just looking at my diary saying at the moment Monday the 4th I would be able to cope with it, if that was in the interests of
the - - -

PN191

MR JOSEPH: Yes. Thank you.

PN192

THE COMMISSIONER: I mean, I can keep that available if that is the wish of the parties.

PN193

MR MARASCO: Yes. That would be good if that could be kept available but again, we would like to see discussions take place at the local level.

PN194

THE COMMISSIONER: Yes. I think Monday the 4th?

PN195

MR JOSEPH: I'm sorry? Monday the 4th? Yes, I'm sure that will be fine, Commissioner. Is that 10 am or whatever time?

PN196

THE COMMISSIONER: Whatever. Let us pencil it in at 10 am.

PN197

MR JOSEPH: I think so.

PN198

THE COMMISSIONER: Unless I hear from you I will keep that available and my associate might contact you some time during next week just to make sure. If it's not going to happen, I would like to slot something else in, of course.

PN199

MR JOSEPH: Of course.

PN200

THE COMMISSIONER: But at this stage I will put a definite pencilling in for 10 o'clock on June the 4th and this would be a conference pursuant to Part XIII of the Act.

PN201

MR JOSEPH: All right. So I was going to ask how we - - -

PN202

THE COMMISSIONER: I'm not sure - - -

PN203

MR JOSEPH: - - - what vehicle we use for that - - -

PN204

THE COMMISSIONER: I think I still do my own motion anyway but I will leave it to one of you.

PN205

MR JOSEPH: Yes.

PN206

THE COMMISSIONER: If the matter would be available , it would be open to you to file a Part XIII.

PN207

MR JOSEPH: Yes.

PN208

THE COMMISSIONER: Or it would be open to you to file a Part XIII.

PN209

MR JOSEPH: I will speak to the union about that.

PN210

THE COMMISSIONER: But we will work that out.

PN211

MR MARASCO: Yes, that can be - like the jurisdictional issues as well could be worked out at that time.

PN212

THE COMMISSIONER: Yes. I don't think there will be a problem, I'm just saying at the moment I will adjourn today's proceedings on the basis that you are withdrawing your application. There will be a conference pursuant to Part XIII of the Act at 10 o' clock on Monday the 4th, unless I hear from you otherwise.

PN213

MR JOSEPH: Right.

PN214

THE COMMISSIONER: Leave it at that? Thanks very much. This matter is adjourned.

<ADJOURNED UNTIL MONDAY 4 JUNE 2007 [3.07PM]