C2006/3975, Transcript of Proceedings [2007] AIRCTrans 289 (18 June 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16972-1

COMMISSIONER LEWIN

C2006/3975

s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
Transport Workers’ Union of Australia
and
Bilfinger Berger Services (Australia) Pty Ltd
(C2006/3975)

MELBOURNE

3.12PM, WEDNESDAY, 30 MAY 2007

Continued from 1/5/2007

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

Hearing continuing

PN247

THE COMMISSIONER: Good afternoon, Mr Wirrick, the matter has been re-listed at your request. I think, given that there has been a fair bit of communication about this matter and it has been heard several times already - several occasions already, it would be useful to know what it is that you are seeking that the Commission do in relation to the dispute.

PN248

MR WIRRICK: If the Commission pleases. Commissioner, as we stated on 1 May we’re seeking positions within the company for the five employees who were made redundant and that being on the basis that those positions have been filled in the power section of the company by - - -

PN249

THE COMMISSIONER: I know that’s what you are seeking.

PN250

MR WIRRICK: Yes.

PN251

THE COMMISSIONER: But it doesn’t, with all due respect, address the question that I asked you. What is it in relation to that aspiration that you are asking the Commission to do precisely?

PN252

MR WIRRICK: Commissioner, given that the response to the - as you directed the company to respond and give an overview of the situation in regards to those positions, we are very much of the opinion that the company is a bit flamboyant with the truth as is outlined in the letter that we sent back to you dated 9 May.

PN253

THE COMMISSIONER: Well, this may be a discussion about the reasons why you think the Commission should do something, or the merits of it doing something. But my question is what exactly should the Commission do? What should it do, as opposed to why should it do it.

PN254

MR WIRRICK: It should direct the company, Commissioner, to - - -

PN255

THE COMMISSIONER: So it should make some sort of direction or order, is that right?

PN256

MR WIRRICK: That’s correct.

PN257

THE COMMISSIONER: Is that what you’re seeking?

PN258

MR WIRRICK: That’s correct.

PN259

THE COMMISSIONER: That certain named persons be employed by the company, is that right?

PN260

MR WIRRICK: Correct. In positions that are filled by casual employees. And it goes back, Commissioner, to the statement and recommendation made by Commissioner Mansfield on 11 December last year where the company undertook - - -

PN261

THE COMMISSIONER: I’m really only interested in what it is that you’re seeking the Commission to - not why at the moment. There are two matters that arise from that, Mr Wirrick. One is the question of jurisdiction and power to do what it is that is sought; and the second is the merit of doing so. Have you considered the first of those two matters?

PN262

MR WIRRICK: Commissioner, I have given it some consideration and I thought that as we were - as we have been having the discussions that there was - and from your directive - to the company on 1 May that there was the ability to flush out the truth from the company and the company to accept the grounds and conditions that was made on the 1st - sorry, on 11 December, that being that the company would offer - - -

PN263

THE COMMISSIONER: I don’t think I intended to make any - give any direction or issue any order at that stage, did I? I indicated that I was going to recommend, didn’t I? Or was inclined - but in any event things have been put to me since, as invited, isn’t that right?

PN264

MR WIRRICK: I think - - -

PN265

THE COMMISSIONER: The correspondence was to the effect that it invited the company to deal with your suggested solution. Isn’t that right?

PN266

MR WIRRICK: Well, Commissioner, as I understand it there were issues to do with whether the five employees who were made redundant actually had the skills and the ability to do the work associated with the - on the power division. If that was established that they were able to carry out those functions, it was my understanding that the company could consider using their skills.

PN267

THE COMMISSIONER: I’m not quite sure where that takes us, Mr Wirrick, in terms of my question which is currently focused on the jurisdiction and power of the Commission to do what it is that you’re seeking.

PN268

MR WIRRICK: If it pleases the Commission, I’d have to seek advice as to the jurisdiction and the ability for the Commission to do what we’re asking, because I personally don’t know.

PN269

THE COMMISSIONER: Well, it becomes rather important, doesn’t it? There’s no point in the Commission purporting to make a direction or give an order that it has no power to make or give in each case. The Commission must satisfy itself that it has the jurisdiction to act in the manner sought.

PN270

MR WIRRICK: It’s my understanding, Commissioner, that the agreement that applies is a pre Work Choices agreement and the settlement of disputes procedure allows for conciliation and/or arbitration.

PN271

THE COMMISSIONER: All right. I think that’s what I’m inviting you to address me on, Mr Wirrick. Are you saying that the dispute settlement provisions of the agreement contain the necessary jurisdiction and power?

PN272

MR WIRRICK: It’s my understanding that it does, Commissioner.

PN273

THE COMMISSIONER: To act as the private arbitrator in accordance with the terms of the agreement, is that right?

PN274

MR WIRRICK: Just bear with me, if the Commission pleases. Commissioner, as Mr Smith has just pointed out to me:

PN275

If settlement of the matter in dispute is not achieved within a reasonable time or within five working days, whichever is the less then either party may notify the matter for conciliation or arbitration resolution. The AIRC’s decision will be accepted by all parties -

PN276

THE COMMISSIONER: So you’re actually asking me to make a decision that this dispute should be resolved in the manner proposed, namely the employees named should be employed.

PN277

MR WIRRICK: By ......

PN278

THE COMMISSIONER: If there is a dispute over the application of the term of the agreement that’s pertinent to that dispute settling function you may be right. Which term of the agreement is it?

PN279

MR WIRRICK: I have to seek some advice on that took, Commissioner.

PN280

THE COMMISSIONER: The power of the Commission doesn’t extend to any dispute between the parties, does it?

PN281

MR WIRRICK: As I understand it - - -

PN282

THE COMMISSIONER: Or does it?

PN283

MR WIRRICK: - - - it does.

PN284

THE COMMISSIONER: It may say that in the agreement. I haven’t checked on that because it’s unnecessary to do so. The reason why it is unnecessary to do so is because the Commission can only exercise the powers conferred upon it by section 170LW of the pre-reform Act. Isn’t that right?

PN285

MR WIRRICK: I believe so.

PN286

THE COMMISSIONER: And those powers are to settle disputes about - or over the application of the terms of the agreement. Isn’t that right?

PN287

MR WIRRICK: I’d suggest - - -

PN288

THE COMMISSIONER: That’s what the Act says. So it’s not the case that any dispute that arises between the parties can be dealt with by the Commission in accordance with the dispute settlement procedures of the agreement. The dispute has to be one described in the legislation, does it not?

PN289

MR WIRRICK: I’d imagine - - -

PN290

THE COMMISSIONER: The only function the Commission can perform is the function conferred upon it by the Act. So if that function is said to be, by the words of the legislation, to deal with disputes about the application of the agreement or arising under the agreement - I can’t remember the precise formulation - then it’s only that dispute that is capable of attention by the Commission. Is that not right?

PN291

MR WIRRICK: If that is the position that - - -

PN292

THE COMMISSIONER: That seems to me to be the orthodox that’s been dealt with by the High Court in the private arbitration case and so for the Commission to have a role and function conferred upon it under the Act, in this case there has to be a dispute over the application of a term of the agreement to which the dispute settlement procedure applies. So what term of the agreement is in dispute?

PN293

MR WIRRICK: Without referring back to the agreement, Commissioner, I would say the - - -

PN294

THE COMMISSIONER: Well, I think that’s the whole point, you do have to refer back to the agreement, I think, in order to satisfy the Commission that the course of action proposed by you is available. You carry the onus as the applicant for the remedies sought to satisfy the Commission that there is the necessary condition precedent to the decision that you seek exists and that condition precedent is a dispute over a term of the agreement that is capable of being settled by that decision that you seek.

PN295

MR WIRRICK: Commissioner, if I may, what and where this all started off in relation to going back even to the 11 December hearing was the fact that the company failed to go into any form of consultation about the said redundancies.

PN296

THE COMMISSIONER: Right. So I think if you just take me to the clauses in the agreement because ultimately because once we’re clear on how you characterise the dispute as one arising under the terms of the agreement, then it can be ascertained as to whether or not that’s a proper characterisation and therefore whether or not that dispute, so characterised, can be subject to a decision made in accordance with the dispute settlement procedure.

PN297

MR WIRRICK: Yes, Commissioner. Clause 34 of the agreement, page 26, the decision before the terminations, clause 34.1 - I can read it out if you wish.

PN298

THE COMMISSIONER: Go ahead.

PN299

MR WIRRICK:

PN300

Where the employer has made a definite decision that they no longer wish the job the employee has been doing done by anyone or there is a downturn in work and this is not due to the ordinary and customary turnover of labour that the decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union who are party to the agreement.

PN301

Then it goes, Commissioner, to say at 34.2:

PN302

Transfer to lower paid duties. Where an employee is transferred to lower paid duty because the company has made a definite decision that it no longer wishes the job the employee had been doing done by anyone, the employee shall be entitled to the same period of notice, et cetera.

PN303

Commissioner, the members affected by the said redundancies weren’t offered the option of being transferred to these lower paid duties that are associated with a power contract.

PN304

THE COMMISSIONER: Does the agreement require that they be so offered?

PN305

MR WIRRICK: It may not specifically say that they are to be offered that but, Commissioner, had we have had the opportunity to have any discussions with the company prior to the redundancies being implemented it would have been something that would have been breached [sic] in conversation.

PN306

THE COMMISSIONER: But you see what I mean about the need for there to be a dispute about the application of the terms of the agreement for the Commission to be able to do anything in relation to such a dispute. That arises out of the Workplace Relations Act provisions, the preservation of the pre-reform content of section 170LW. So, if the relevant provisions of the agreement are clauses 34.1 and 34.2, what you’re saying is that the company did not conform with clause 34.1, is that correct?

PN307

MR WIRRICK: Correct.

PN308

THE COMMISSIONER: All right. Let’s leave that to one side for the moment and say what is it that clause 34.2 requires which the company has not complied with?

PN309

MR WIRRICK: Commissioner, they have not offered the transfer to any other duties.

PN310

THE COMMISSIONER: I know that as a matter of fact but what is it about the clause that has not been complied with. There doesn’t seem to be any obligation to offer such transfers. So wouldn’t the proper - if I’m correct in that, wouldn’t a proper decision be that the company has applied clause 34.2 in any way where there has been transfer to lower paid duties and therefore no obligations have arisen under that clause and that that is the appropriate decision of any dispute about the application of that clause on the basis of the facts.

PN311

MR WIRRICK: Commissioner, I hear what you’re saying but - - -

PN312

THE COMMISSIONER: It doesn’t seem to arise as a matter of any complexity. It seems to be straightforwardly the case that there were no transfers and the agreement does not require the offering of any such transfers.

PN313

MR WIRRICK: I hear what you’re saying, Commissioner, and I acknowledge that but - - -

PN314

THE COMMISSIONER: On the plain meaning of the words.

PN315

MR WIRRICK: But it goes back to, again, the statement - recommendation made by Commissioner Mansfield and that the company agreed to that process, that they would take more notice of the wording in the agreement.

PN316

THE COMMISSIONER: I think that referred to clause 34.1, did it not?

PN317

MR WIRRICK: I think it was open, Commissioner.

PN318

THE COMMISSIONER: In any event, it was a recommendation, wasn’t it?

PN319

MR WIRRICK: I understand - - -

PN320

THE COMMISSIONER: Something that was agreed to by the company?

PN321

MR WIRRICK: It was a way of moving forward and settling the dispute at the time.

PN322

THE COMMISSIONER: It was a recommendation that was agreed to by the party - by the company?

PN323

MR WIRRICK: Correct.

PN324

THE COMMISSIONER: In this case what you’re seeking is a decision, not a recommendation, is that right?

PN325

MR WIRRICK: Correct.

PN326

THE COMMISSIONER: It’s a different situation, isn’t it?

PN327

MR WIRRICK: It is.

PN328

THE COMMISSIONER: So to make such a decision there has to be a dispute capable of resolution by the decision. We’re left with clause 34.1 on what you have put to me so far. So if I was to conclude that these discussions did not take place, you’re suggesting that as a consequence the Commission should decide that the employee should be employed elsewhere in the business of the company, is that correct?

PN329

MR WIRRICK: Correct.

PN330

THE COMMISSIONER: All right. I understand. So my understanding of the way you put this case is that clause 34.1 required specified discussions before terminations; the company did not apply the agreement in that manner and for that reason and other reasons, there is a dispute over the application of the agreement because the company may suggest or has suggested, I think, that it did comply. I mean, that’s my construction of what’s been put to me so far by the company, that there view is that they have complied. Is that your understanding of their position?

PN331

MR WIRRICK: I believe so, Commissioner.

PN332

THE COMMISSIONER: Yes. So there’s a dispute over whether or not the company has or has not complied because you say they have not and the company says they have. If the Commission reaches the conclusion that the company has not complied, then there is the question of what the consequences of such a finding by the Commission are and you say that those consequences should be a decision that certain named employees should be employed by the company and that in this context that is a decision which is appropriate.

PN333

MR WIRRICK: Correct.

PN334

THE COMMISSIONER: Are you happy for the Commission to determine the matter on the material before it?

PN335

MR WIRRICK: Commissioner, I would like to be able to substantiate what we have been saying and what has been said by the input of the two members that have turned up at the Hobart Industrial Relations - - -

PN336

THE COMMISSIONER: You would like them to give evidence, would you?

PN337

MR WIRRICK: Either that or go into a conference forum where they - - -

PN338

THE COMMISSIONER: I think they probably have to give evidence if you want to rely on their accounts of the facts so that they would present themselves for cross-examination if appropriate.

PN339

MR WIRRICK: Yes. Commissioner, I haven’t run that past either of the members as a possibility of the outcome of this but I’m sure that they wouldn’t have a problem in doing that.

PN340

THE COMMISSIONER: All right. So you want to take evidence from them now, do you, about whether or not clause 34.1 has been complied with as a matter of fact?

PN341

MR WIRRICK: I could do that after a bit of consultation with my colleague, Commissioner.

PN342

THE COMMISSIONER: All right. Is there anything else that you would want to put to the Commission?

PN343

MR WIRRICK: At this stage, Commissioner, only the fact that - no, there’s not.

PN344

THE COMMISSIONER: So you would be content for the Commission to hear the evidence of the witnesses or the witness, whichever it is, and to decide the matter on the basis of the materials so far filed respectively by the parties.

PN345

MR WIRRICK: And the fact that I believe the statement from - rightly or wrongly, I don’t know, Commissioner - but I believe that what the company agreed to through the dispute on 11 December should have some binding in the result.

PN346

THE COMMISSIONER: Well, the company may have something to say about that but I’m not quite sure why it should in the sense that either there has been compliance with clause 34.1 or there has not. Do we need to go to some sort of reinforcement of the proposition that the company is bound to conform to the agreement? There is no doubt about that, is there?

PN347

MR WIRRICK: Well, Commissioner, they have only paid lip service to date, as far as I’m aware.

PN348

THE COMMISSIONER: That’s what you’re asserting and they contest that. But I’m not quite sure what the December recommendation in settlement has got to do with whether or not they are to confirm to the agreement.

PN349

MR WIRRICK: Well, I suppose, Commissioner, all the way along the effort of the Transport Workers Union is to see the five members that were made redundant have ongoing employment and I don’t think that we’ve presented that in any other way in relation to the ability for these members to have ongoing work as being the premium issue.

PN350

THE COMMISSIONER: I understand that. I guess what I’m saying Mr Wirrick is clause 34.1 requires discussion before termination and it specifies those discussions. That is a term binding upon the company. That’s pretty straightforward, isn’t it? We don’t need to reassure ourselves that that is the case by reference to what happened in December or anything else. That is self-evidently the case that both parties to this agreement are bound by its terms.

PN351

MR WIRRICK: Correct.

PN352

THE COMMISSIONER: So the fact that there was some suggestion in the past that the company ought to pay close attention to its obligations under the agreement, well, it’s really only informative of the situation. It doesn’t change it, does it?

PN353

MR WIRRICK: No.

PN354

THE COMMISSIONER: But in any event, that recommendation has been filed as part of these proceedings and forms part of the material. It’s before the Commission. That statement of recommendation I should say properly describe it. So there’s nothing further then, just the evidence of the witnesses that you would wish to call.

PN355

MR WIRRICK: Correct, Commissioner, and there might be some revisiting on the paperwork that’s already been passed over.

PN356

THE COMMISSIONER: What, in the form of submissions?

PN357

MR WIRRICK: Just to substantiate the discussions.

PN358

THE COMMISSIONER: All right. Very well. I notice there is a change in the appearance in the matter. I don’t think you have appeared previously, have you, Mr Stooke?

PN359

MR STOOKE: No, Commissioner, I haven’t.

PN360

THE COMMISSIONER: I beg your pardon.

PN361

MR STOOKE: And I seek leave to appear for Bilfinger Berger Services Pty Ltd.

PN362

THE COMMISSIONER: I think I was momentarily confused. I have a feeling you appeared before Commissioner Mansfield.

PN363

MR STOOKE: I did. I was involved in the original case.

PN364

THE COMMISSIONER: Because I can remember reading your name on the record.

PN365

MR STOOKE: Yes.

PN366

THE COMMISSIONER: We should record the change in appearance for the respondent company. Mr Stooke now appears. Mr Stooke, what do you want to say?

PN367

MR STOOKE: Commissioner, perhaps I should make a couple of observations. I have read the transcript of the most recent proceedings and what I do note is that there seems to be some confusion between the former matter before Commissioner Mansfield and the current matter. In December last year - - -

PN368

THE COMMISSIONER: There’s not on my part.

PN369

MR STOOKE: No. I can glean that from the comments that you have made - that the employees that were made redundant last year, the allegation was made the company hadn’t properly consulted and that led to the recommendation put by Commissioner Mansfield which the company accepted. And that, for all intents and purposes, resolved that particular dispute and I notice that this the same matter number and it’s still being pursued as a section 170LW.

PN370

THE COMMISSIONER: But in essence it’s a different dispute.

PN371

MR STOOKE: It is a different dispute. The most recent redundancies which occurred in April, the correspondence from Mr Briggs of 26 April to yourself sets out the communication process that took place between the company and the employees and the union. We would say that - submit that, prima facie, the union has not established that there is a breach of the agreement in terms of the company’s procedures that it has adopted in this particular case, having had the experience last year. Great pains were actually taken to ensure that the TWU was informed and the employees were informed of the status of business.

PN372

Perhaps I would like to tender a document just to put to rest some of the assertions that have been made from the Bar table concerning the availability of work in the organisation, and in particular in the power division. There have been consultations between Mr Griggs and Mr Hamill who is responsible for the power division, to ascertain what opportunities and what is the future of the business in the near term. Perhaps it may assist the parties if I tender that particular document.

PN373

THE COMMISSIONER: All right.

EXHIBIT #R2 LETTER FROM MR G HAMILL TO MR R BRIGGS DATED 28/05/2007

PN374

MR STOOKE: Thank you, Commissioner. Commissioner, perhaps I will read it on to the record. The letter is dated 28 May 2007. It is from - signed at the bottom, you will see, from Mr Geoff Hamill who is the operations manager, Tasmania and major tenders, and the letter is addressed to Mr Russell Briggs, “re Tasmanian operations and employment opportunities within the power division”:

PN375

Further to your advice of 25 May 2007 and our subsequent discussions of 28 May 2007, I hereby confirm that following an assessment of current work requirements in the south ...(reads)... we are not in a position to be able to accommodate your request to provide employment for these former gas operation employees.

PN376

“Yours sincerely, Geoff Hamill, Operations Manager, Tasmania and Major Project Tenders”. Well, that’s the current status of employment opportunities within the company, Commissioner. We would say that the correspondence, as I previously mentioned on 26 April, together with the letter that was written on 18 April to Mr Noonan adequately sets out the chronology of the dialogue and procedures that the company undertook before the redundancies were effected.

PN377

In turn the employees were kept fully up to date with the status of the project throughout the course of the project through toolbox meetings and on 17 April that was minuted and forwarded to the TWU by email on that particular day. So we would say, Commissioner, that the union has not made out a case and it’s intending to call witnesses and produce evidence to support a contention that the company in some way has breached its obligations under the terms of the agreement. We will obviously respond to that but, prima facie, we say that there is no case either in a jurisdictional sense nor in terms of the merits, if the Commission pleases.

PN378

THE COMMISSIONER: Thank you, Mr Stooke. Yes. Well, I think where we are at, Mr Wirrick, is, particularly in light of - and in fact I suspect that we do actually have a Bar exhibit already. Is that right? So this really should have been R2.

PN379

Exhibit R1 is the letter of 26 April 2007 to the Commission. I’m not quite sure whether that’s actually been recorded in the proceedings so far but I have marked it as R1 for the sake of the record.

PN380

So, Mr Wirrick, where we’re at really is for the Commission to have any function in relation to this matter, it must be satisfied that there is a dispute over the application of the agreement. I think that that dispute must, on everything that’s been put to me so far, devolve to a dispute over the application of clause 34.1. As I understand it at the present time, it is the union’s contention that the company has not complied with its obligations under clause 34.1. It is the company’s contention that it has so complied and that the steps identified in the letter of
26 April 2007 constitute that compliance. Correct, Mr Stooke?

PN381

You now seek to produce evidence which would be directed to establishing to the Commission’s satisfaction that there has been no compliance. Do you wish to have an adjournment to brief the witnesses?

PN382

MR WIRRICK: If I may, Commissioner, I would appreciate that. What else is - I have come across the original dispute, as does this, hinged around the fact that there was no compliance with clause 9(f) of the agreement, on page 843.

PN383

THE COMMISSIONER: Just bear with me for a moment. Well, my observation is that this is a - in the particular factual circumstances of this case the issue is whether or not there has been any consultation about effects and measures to avert or mitigate adverse effects. Is that right?

PN384

MR WIRRICK: Correct.

PN385

THE COMMISSIONER: So that there are two obligations of consultation, one arising in redundancy scenarios and another arising in major change to their hours which might be said to be one and the same thing. I mean it does - consultation obligations collapse into one generic consultation obligation, albeit created by two different clauses. But to the extent that the obligations are specific in aggregate they involve not only discussions but also consultation about measures to avert or mitigate adverse effects of changes. Is that right?

PN386

I think we’ll take an adjournment while you determine what you want to do about presenting any evidence in relation to this dispute. How long do you think you’ll need for this?

PN387

MR WIRRICK: If we could have 15 minutes, Commissioner.

PN388

THE COMMISSIONER: Very well. Thank you.

<SHORT ADJOURNMENT [3.47PM]
<RESUMED [4.05PM]

PN389

THE COMMISSIONER: Yes, Mr Wirrick?

PN390

MR WIRRICK: If the Commission pleases, Commissioner, given the task of trying to put something together in such a short timeframe we were having difficulty with, and if the Commission pleases we are seeking that we be able to submit some written statements and submissions and we would imagine that we would be able to complete and get those into the Commission by Friday, 8 June. If the company wishes to respond to those, probably a suitable timeframe for them if that suits them, Friday, the 15th, and if we could possibly list it for rehearing some time in the following week, Commissioner.

PN391

THE COMMISSIONER: Well, that would just be for the purpose hearing any evidence that the parties wish to put. I think that the matter has been ongoing for time now, and it needs to be brought to a conclusion. It needs to be brought to a conclusion efficiently with as little additional cost to the parties as possible. But I understand that Mr Stooke has no fundamental objection to the course of action that you propose provided that the company is given a reasonable opportunity to present its case.

PN392

So the real question is the management of the proceedings. I think the submissions should be made in writing, ideally, and any further hearing should be confined to hearing witness evidence. Is that suitable?

PN393

MR WIRRICK: It is, Commissioner, and just if I could remind the Commissioner the difficulty we have in the timing is that our members are in Tasmania so it’s not as if we would be able to have easy contact with them.

PN394

THE COMMISSIONER: I understand. Good. Thank you, Mr Stooke.

PN395

MR STOOKE: We would be prepared to cooperate with that proposal. The only thing is that 15 June might be a bit tight. There’s a long weekend that weekend and a short week so I suggest maybe about 19 June or something of that order.

PN396

THE COMMISSIONER: Very well. I’ll issue directions accordingly.

PN397

MR STOOKE: Thank you.

PN398

THE COMMISSIONER: The question becomes what should be the date of listing the hearing of any evidence. Would 26 June be suitable? Mr Wirrick?

PN399

MR WIRRICK: Commissioner, that’s clear by me, yes.

PN400

THE COMMISSIONER: All right. Directions will be issued which will require the filing of witness statements and submissions in support of the case of the TWU by the close of business on 8 June and any response in the form of witness evidence and submissions on the part of Bilfinger Berger, the close of business on 19 June. The Commission will sit again on 26 June for the purpose of hearing any witness evidence. It may be that - it should be hopefully the case that that hearing should be confined to cross-examination given that witness statements will be filed. It will be 10 am on 26th. Proceedings are adjourned to that time.

PN401

The Commission will sit again at Melbourne. At 10 am on 26 June there will be a video link to Hobart for the purpose of evidence being given by witnesses who are located in Tasmania. Thank you.

<ADJOURNED UNTIL TUESDAY 26 JUNE 2007 [4.10PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R2 LETTER FROM MR G HAMILL TO MR R BRIGGS DATED 28/05/2007 PN373