C2007/3577, Transcript of Proceedings [2007] AIRCTrans 719 (24 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17939-1

VICE PRESIDENT LAWLER

C2007/3577

s.133 RAO Schedule - Orders re representation rights of employees
The Australian Workers’ Union of Employees, Queensland
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Dalrymple Bay Coal Terminal Pty Ltd Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees
(C2007/3577)

SYDNEY

WEDNESDAY, 12 DECEMBER 2007

Continued from 2/11/2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO AND TELEPHONE CONFERENCE AND RECORDED IN SYDNEY

Hearing continuing

THE VICE PRESIDENT: Mr Benfell, how are you? Mr Slevin, Mr Herbert I see and my eyesight is failing me at the others in Brisbane.

MR D MURDOCH: I appear on behalf of Dalrymple Bay Coal Terminal.

THE VICE PRESIDENT: We're very fortunate indeed, Mr Murdoch, to have you here. Who else is there in Brisbane?

MS K ALLEN: I appear on behalf of the AMWU, both our state and federal unions.

THE VICE PRESIDENT: Thank you, Ms Allen. I understand you've got to get away, Ms Allen.

MS ALLEN: Yes, I do, your Honour.

THE VICE PRESIDENT: Please feel free to leave at any time you want.

MS ALLEN: Thank you, your Honour.

THE VICE PRESIDENT: Thank you, and is Mr Dallas here somewhere?

MR SLEVIN: He's in Brisbane, your Honour.

THE VICE PRESIDENT: He's not at the bar table?

MR SLEVIN: No.

THE VICE PRESIDENT: Mr Dallas is there. He's come to the bar table. Mr Slevin, are you appearing for the CFMEU today?

MR SLEVIN: I am appearing for the CFMEU and the FEDFAEQ.

THE VICE PRESIDENT: The union wrote seeking an adjournment of the hearing on Friday. Upon testing the attitude of the other parties, it was clear that there was significant opposition and consequently the matter has been listed now for the formal hearing - - -

MR B JOHNSTON: I appear on behalf of the TWU by telephone link.

THE VICE PRESIDENT: Thank you, Mr Johnston.

MR HERBERT: Your Honour, we can hardly hear you at this end. The audio is very faint.

THE VICE PRESIDENT: Just bear with me a second. Is that better, Mr Herbert?

MR HERBERT: That's better, your Honour.

THE VICE PRESIDENT: If you've got any difficulties hearing Mr Slevin, please say so, because there's only one microphone here and it's presently positioned between the bench and the bar table, so neither of us are particularly close. Mr Slevin, you have an application.

MR SLEVIN: Yes, I do, your Honour, make an application on behalf of the CFMEU. The application was foreshadowed in correspondence to your associate of yesterday. The application is for an adjournment of the proceedings and, of course, we'll need to vacate the hearing day on Friday if your Honour is with us on the application to adjourn the proceedings. The application is brought, your Honour, due to circumstances that have occurred since we were last before you and those circumstances are that her Honour Senior Deputy President Harrison handed down her decision on 22 November 2007 in respect of an application by Mount Isa Mines for a representation order in similar terms to the order that is sought in these proceedings and in that matter, your Honour, the CFMEU has given instructions to its solicitors to file in the High Court applications for constitutional writs in relation to her Honour's decision.

Your Honour, in the correspondence yesterday, your Honour was informed and the parties were informed that those applications would be filed as soon as reasonably practicable. I am instructed that the applications were filed in the Brisbane registry of the High Court this afternoon, so those proceedings in that sense are on foot and, of course, the proceedings will be served on the other parties in due course. The nature of the application to the High Court is to challenge the basis of her Honour's decision and the basis of her Honour's decision in making orders that the CFMEU claims go beyond the requirement of the legislation and the regulations. I put that in very broad terms, your Honour, because I've not seen the application myself before making that submission and on my instructions, that's the nature of the application that's been made.

THE VICE PRESIDENT: Can I just ask you this question, Mr Slevin? It's conventional for other available appeal avenues to be pursued before prerogative writs are sought and, indeed, a failure to pursue alternative avenues of review or appeal is a discretionary basis to refuse a prerogative writ. I take it that you've moved to seek a prerogative writ in respect of a single member's decision on the basis that it's really a challenge to the earlier Full Bench decision that is at stake here and the argument will be any subsequent Full Bench is going to follow the earlier Full Bench.

MR SLEVIN: That's right, your Honour, and the earlier Full Bench decisions, the Amcor decision and the Amcor decision being the CFMEU v The AWUEQ which is recorded at 159 IR 25. It's Commission print PR975490, the Amcor decision. Your Honour, the significance of those decisions, both the MIM and the Amcor decisions, are evident on the submissions that have been filed in this matter by both the AWUEQ and Dalrymple Bay Coal Terminal. In the submissions filed by the AWUEQ on 20/11 of this year, your Honour, at paragraphs 9 and 11, the AWUEQ rely entirely on the Amcor decision, making a submission that in light of the Amcor decision, the orders sought in the current application must be made.

In the submission made in the material filed in the Dalrymple Bay Coal Terminal submissions at paragraph 4, the submission is made that in light of the Amcor and MIM decisions, the orders sought in the current application must be made and so there is reliance placed in these proceedings on those two decisions and they're the decisions being challenged in the High Court and for that reason, the CFMEU contacted the Commission to draw to its attention that those decisions were being challenged in the manner described. In terms of any prejudice that may arise as a result of the course of action proposed by the CFMEU, in the letter yesterday the CFMEU indicated that it was willing to give an undertaking to the Commission that it would not seek to represent the interests of the relevant employees at Dalrymple Bay Coal Terminal until the litigation was finalised. I am instructed to give that undertaking on the record this afternoon. In terms of the other organisation that I represent which supports the applications, your Honour, the FEDFAQ, the FEDFAQ rule, the transitional organisation rules includes a rule that at 2C:

Notwithstanding any other provision in these rules, the persons employed by Dalrymple Bay Coal Terminal Pty Ltd at the Dalrymple Bay Coal Terminal site shall not be eligible for membership.

And so the FEDFAQ is precluded from any representation at the site as a result of that rule. Consequently, your Honour, we say that there's no prejudice at all to either the AWUEQ or the Dalrymple Bay Coal Terminal in having the matter adjourned so that these legal issues can be determined in the court. That's the basis of our adjournment application, your Honour. We don't put it any higher than that, but we say that it's appropriate for this Commission to exercise its procedural powers under section 110 and section 111(1)(i) to adjourn the proceedings.

THE VICE PRESIDENT: Thank you. Is there any party who's appearing today who does not oppose the CFMEUs application?

MS ALLEN: Our position, unfortunately I haven't been able to gain formal instructions from the executive members of my union, so we're neither opposing nor supporting the application for adjournment today.

THE VICE PRESIDENT: Thank you, Mr Allen.

MR JOHNSTON: We would support the CFMEUs application and similarly we are willing to give an undertaking on the same basis as expressed by the CFMEU so as to cause no prejudice to the AWUEQ or Dalrymple Bay Coal Terminal by any adjournment of this matter, if your Honour pleases.

THE VICE PRESIDENT: Thank you.

MR BENFELL: Your Honour, the CEPU also supports the application made by the CFMEU. There are no demarcation issues alive and given the undertakings made by the CFMEU, we don't see any prejudice to any other party in having the matter adjourned.

THE VICE PRESIDENT: Thank you. Who would like to go first amongst the opposing parties?

MR HERBERT: I am happy to do that, your Honour. Your Honour, unfortunately I come not as well prepared as I would like. I actually found out about the matter when I got out of another court at about a quarter to two and it was all I could do to get here in time and I haven't really had time to research any relevant authorities, but can I say to your Honour there are some factual issues that need to be considered. The first one is that the processes now for seeking prerogative writs will almost invariably lead to the matter being remitted to the Federal Court and once that's been heard and determined, there is a possible overview of appeal to the High Court itself from the Federal Court decision and that process could take 12 to 18 months based on past history.

The other factual issue that needs to be taken into account is the fact that AWUEQ applies in its capacity as a transitionally registered association. Transitional registration is only available for a period of three years from the commencement of the WorkChoices amendments and that is from March 06, the end of March 06. It's now December 07, we have about 15 months left during which the AWUEQ must divest itself of its transitional registration by either having it cancelled or applying for full registration as an organisation for the Act itself to operate to bring the transitional registration to an end.

If the AWUEQ takes the course which is currently the most obvious one before it, that is to apply for full registration, will no longer be a transitionally registered association and it will in all probability lose the ability to progress this claim so as to uplift its demarcation orders from the state jurisdiction into the federal jurisdiction and then carrying them on forwards from that course. Now, we haven't had time to fully explore that, but it could perfectly well be the case and it's certainly the objective of the AWUEQ to seek full federal registration as soon as it can, but of course it must await the determination of these proceedings before it does that so that it doesn't lose the benefit of these regulations in bringing its demarcation orders up with it, so there will be significant possible prejudice to the AWUEQ in relation to the matter despite what my learned friend Mr Slevin says.

The undertakings for the CFMEU not to exercise any rights it may have in the meantime will avail the AWUEQ with nothing if the AWUEQ in the meantime loses its right to progress this matter in any event, so they are factual issues that need to be taken into account and we certainly have no way of predicting or knowing or controlling how long an application of this kind could possibly take in the Federal Court and then to the High Court and given the time frames I've indicated, the AWUEQ hopes to be a fully federally registered organisation long before those court proceedings could possibly be determined, in which case it may well lose its rights that it currently has by the effluxion of that time.

Also, your Honour, the position in relation to this matter is that on the plain face of the authorities currently decided in relation to this matter, the AWUEQ is entitled to the relief that it seeks. The CFMEU and the FEDFA obtained a decision in that regard from the Full Bench and did nothing about it other than to accept it. They ran the same argument in effect before Senior Deputy President Harrison at some later time and they have now decided very late in the piece not to accept that decision and they're saying now that because of that issue, everyone else should put their rights on hold and everybody else should wait until they've conducted the late breaking litigation if they say there's been violent argument today.

There is no basis in my submission for any of that. If the Federal Court or the High Court considers that there is any possible prejudice or otherwise to those proceedings or any person's rights in those proceedings, those courts will become seized of the matters and will have the capacity to make relevant orders if the CFMEU chooses to make applications in that regard, but, as I say, due to the likely serious prejudice to the AWUEQ and the likely serious delay to the capacity of the AWUEQ to become registered as a fully fledged federal organisation under the registration and accountability of organisations provisions, there can be no basis for the matter being adjourned any further.

The hearing date was set down some significant time ago. The decision of Senior Deputy President Harrison I don't have immediately to hand, but that was I understand some two weeks ago and it appears the decision has only been made in the last 48 hours to do something about it. There are serious elements of prejudice to the AWUEQ. On the present state of authorities, there is no reason why anybody should seize the position for making this application or progressing the application. If the CFMEU is not content with the decision that it appears they think is going to be made in any event consistently with the Full Bench decision in Amcor, they may have to take proceedings in relation to that, so that at least the AWU will have its order and it will be in a position to progress the matter ..... proceedings will fall over and to further progress the matter on the basis that they subsequently become registered as an organisation with an order of this Commission in their favour in relation to demarcation matters.

As I say, the only order that exists currently in relation to this aspect of the matter in favour of the AWUEQ is an order of the state Commission in Queensland which avails it of nothing in this jurisdiction and will avail them of nothing if it becomes a federally registered, fully registered organisation and cannot apply for similar order. On that basis it's my submission as an order of that kind, it's difficult to understand and can only be made in favour of a transitionally registered association, the AWUEQ should not be prejudiced in that way, given the late breaking nature of the action taken by the CFMEU. For that reason, your Honour, this late application for an adjournment is vigorously opposed and we would ask that the matter proceed to a hearing as scheduled on Friday. They're my submissions, your Honour.

THE VICE PRESIDENT: Thank you, Mr Herbert. Mr Murdoch.

MR MURDOCH: Your Honour, my clients are also opposed to the adjournment. We ask you to note, of course, that under section 108 of the Workplace Relations Act the Commission must perform functions as quickly as practicable. The position in very stark terms, your Honour, is that the application which the CFMEU propose to mount in the High Court seeks to challenge the decision which the Full Bench gave almost a year ago in the Amcor case. That was a Full Bench decision and with respect to Senior Deputy President Harrison, her recent decision largely followed the precedents established almost a year ago by the Full Bench.

Now, significantly, the parties in the Amcor case, apart from the employer, were virtually the same parties as in the current litigation. In other words it was the FEDFAQ as transitionally registered, the CFMEU, the AWUEQ and in my submission if the CFMEU had had a desire to tackle the Full Bench, they've had almost a year in which to initiate appropriate proceedings and as Mr Herbert pointed out, at a pragmatic level one could not foresee that the challenge would be heard and determined with any greater speed than normal matters which go to the High Court, back to the Federal Court, potential for appeal, et cetera, so realistically if you were to adjourn this matter, we would be looking at a year to 18 months conservatively before the matter could proceed.

Now, if the CFMEU had acted more expeditiously to mount the challenge to the Full Bench decision in Amcor, we may not have been confronted with the issue that we're now confronted with. The other matters of significance are that we do not have the benefit of the actual papers that have been filed this afternoon, but on the basis of what Mr Slevin has said, it appears that there's no particular element of Senior Deputy President Harrison's decision which has altered the situation of the CFMEU from complacency to suddenly seeking to challenge the Full Bench decision in Amcor.

So far as decisions of the Australian Industrial Relations Commission in comparable matters go, we've endeavoured to supply the Commission this afternoon and to supply the other parties with a copy of the citation - I am sorry, not to the decision, but to give the citation of a decision of Vice President Moore, Munro J and Commissioner Lewin in K7459. The decision is dated 28 April 1993 and it's in the matter of the State Public Services Federation and Others. In that matter, the Full Bench refused to adjourn a matter and it was in circumstances where there had been a challenge instituted in the High Court which went to the legal basis upon which each of the matter in proceedings before the Commission was to proceed, so that there was an analogous attack on the basis of the proceedings and that was considered at some length.

The Commission canvassed a number of matters, but fundamentally the Commission appears to have taken the view that it should proceed on the state of the law and the state of the authorities as matters stood and not to be put off by the fact that there had been a challenge in the superior court which if determined in favour of those prosecuting the challenge would alter the legal framework, so we would urge you to act on the basis of the principles as they are established and they are of course the principles as set out in the decision of the Full Bench in Amcor

You've noted, your Honour, that it's been no deal against the decision of Senior Deputy President Harrison. However, as Mr Slevin frankly said, that appears to be related to the fact that there is such a close similarity between the decision in the Mount Isa Mines matter and the Amcor matter that one would anticipate the outcome of the appeal. Now, all that does is to serve to emphasise the fact that the actual principles which are now sought to be challenged in the High Court have been the principles governing this Commission in matters of this kind for almost a year.

The matters which the CFMEU seek to deal with by means of undertakings do not in my submission go far enough to protect the stability which my client would submit would flow from the making of the proposed orders. For example, the CFMEU undertakes that it would not perform certain actions. The actions which it undertakes not to perform is that it will not seek to represent the industrial interests of any employee of Dalrymple Bay Coal Terminal who would ordinarily come within the callings of the CFMEU. However, the order which is sought in the application before you has two sides.

One is to acknowledge the exclusive rights of the transitionally registered AWUEQ. The other is to exclude the rights of other transitionally registered organisations and other organisations. Nothing in the proffered undertaking acknowledges in any way the rights of the transitionally registered AWUEQ. Further to that, no undertaking is offered on behalf of the transitionally registered FEDFAQ. A reference is made to one of the rules of that body which contains an excision in relation to Dalrymple Bay Coal Terminal. However, as we recall the circumstances under which that rule was originally made, there was no purge rule, so that there is the prospect that there are still non-purged members of the FEDFAQ who may be employed at the terminal and consequently the reference to the rule of itself gives little comfort to the parties who in our submission if the matter proceeds on Friday would be entitled to the continuation of the stability of representational rights which has prevailed under the foregoing orders.

Further to that, the orders which are sought affect organisations other than the CFMEU and other than the TWU which have offered undertakings today. There is no undertaking offered by the Metalworkers Union if I can use that short form term, nor by other organisations who potentially might seek to return to the position of instability that prevailed some years ago before the making of exclusive representation orders at the terminal, so in short, the undertakings do not go far enough. Additionally, the legislative regime in my submission is one in which if the Commission is satisfied of certain fundamentals in relation to the existence of a pre-existing state order, an application for orders to the same effect, there is really no discretion available to the Commission and I say that with the greatest of respect so that the application which my clients support is prima facie one in which if the AWU are able to establish those fundamental factors, the Commission is confronted with an obligation under the law to make the order.

Now, in those circumstances it would be entirely inappropriate for the Commission to not proceed to hear the AWU and the parties that support the application, particularly since the Commission has an obligation to deal with matters expeditiously and particularly since there is no challenge in any court to the Commission proceeding in this matter with this application. I can't assist the matter any further.

THE VICE PRESIDENT: Thank you, Mr Murdoch. Is there anyone else opposing the adjournment application who wishes to add anything further to what Mr Herbert and Mr Murdoch have said? I take it the TWU and the ETU - sorry, I have made the assumption, Mr Benfell, that you didn't want to make any particular submissions beyond supporting what Mr Slevin had said. Is that correct?

MS BERNASCONI: That's correct, your Honour, except that Mr Murdoch has just raised an issue in relation to our failure to offer an undertaking. I simply remind Mr Murdoch that the terms of the order issued by the state Commission excluded tradespeople engaged in the maintenance of plant and equipment and electrical trades assistants, so we were never excluded under the order and the order flowing from these proceedings wouldn't exclude us either.

THE VICE PRESIDENT: So there's no occasion for an undertaking to be given by the ETU?

MR BENFELL: That's correct.

THE VICE PRESIDENT: Was it Mr Dalton on the phone for the TWU?

MR JOHNSON: I don't have any further submissions to make in relation to the matter.

THE VICE PRESIDENT: Thank you. Mr Slevin, anything in reply?

MR SLEVIN: Thank you, your Honour. It seems that what is put against us is that the opportunity for the AWUEQ may disappear with the passing of time given the time frames that may be associated with the application. We have no control over how the matter proceeds in the Federal Court and I accept what my friend says that the practice now is that the matter will be remitted to a Full Bench of the Federal Court. Your Honour, in terms of addressing that concern, it can be addressed by your Honour setting the matter down for report back to hear from the parties as to how the proceedings are going and any submissions could be made at that time in relation to the evaporation of any rights of the AWU.

Application is made, your Honour, so that there can be an orderly resolution of the issues between the parties. These issues arise not simply in these proceedings, but as Mr Murdoch and Mr Herbert have both suggested, they're issues that have arisen in Amcor, MIM and I understand a number of other applications in the Commission at the moment. They're issues of import to my clients and in the circumstances of these matters, your Honour, once the order is made on its face, the rights of my clients to represent people who they would otherwise have the right to represent disappear and so the prejudice to us is that these orders be made in circumstances where further litigation ought then be required in the courts in each of those other matters in a similar fashion to the litigation that's been commenced in the MIM proceedings and so the balance to be drawn in our submission is that these proceedings can be adjourned to allow those underpinning legal issues to be determined in the proper place and then the Commission can come back to consider the applications based on what the court determines and the other option is that the Commission continues to issue these orders and there are further proceedings in the court seeking relief, prerogative relief, constitutional writs on each and every occasion and that's what we want to avoid, your Honour. We would like the litigation to be conducted in an orderly fashion and in the fashion that we've described. In terms of what is said about the FEDFA - - -

THE VICE PRESIDENT: What do you say about the you've sort of brought this on yourself and I am summarising Mr Murdoch's argument, you've brought it on yourself by failing to appeal or seek prerogative writ in relation to the Amcor Full Bench decision?

MR SLEVIN: I have no instructions and I can't look behind my instructions, your Honour, in relation to that matter. I don't know why decisions were or were not made in relation to the Amcor proceedings. A decision has been made in relation to the MIM proceedings, however, and they were the next in line as it were of these types of orders. All I can put to your Honour is that. In terms of what has gone on in the past, that's gone on. In terms of what the situation is today, it is as described. There are proceedings in the court and those proceedings deal quite squarely with the issues that are to be considered by the Commission on Friday.

In terms of the FEDFA, there is no undertaking because of the rule and we say there's no occasion for an undertaking from the FEDFAQ for that reason. In terms of the submissions made about there being no purge, we don't understand that the application made in these proceedings would involve any purging of any person who remains a member of the FEDFAQ or the CFMEU in terms of their right to continue their membership. If that membership existed prior to these orders being in place, that would be unaffected by the order, so we don't see that the question of the purge has any relevance or should be considered at all in the exercise of weighing up the application for adjournment. That is all I have in reply, your Honour.

THE VICE PRESIDENT: I will adjourn for five minutes. I will be back with a short ex tempore decision. Ms Allen, if you need to go, please feel free.

<SHORT ADJOURNMENT [4.14PM]
<RESUMED [4.19PM]

THE VICE PRESIDENT: Mr Slevin, is it you or Mr Dallas who is familiar with the arguments that are going to be advanced in the hearing of this matter?

MR SLEVIN: I will be appearing.

THE VICE PRESIDENT: Are there any arguments that are being advanced in this case which are independent and different from the arguments that were advanced in the MIM matter?

MR SLEVIN: Your Honour, I think there is one and that is the impact of the AWU who haven't appeared in this matter of these orders, the circumstances, the history of the matter, your Honour, you'll see on the papers is that there was a 118A order made by Senior Deputy President Duncan giving exclusive coverage to the AWU in the federal jurisdiction and I understand that's the only argument that would be different from the MIM one or additional argument that's being advanced.

THE VICE PRESIDENT: This is an application for an adjournment. Argument have been advanced for and against the adjournment application. In my view, it is finely balanced. I don't think that great assistance is provided by the decision of the Full Bench in K7459. Each case has to be decided on its own facts and the analogy I don't think is particularly close. The ultimate determinate is the interests of justice, that's solely in SPC in the High Court and JL Holdings v The State of Queensland and the analogous circumstances of amendment, an adjournment being closely linked.

On a fine balance, it seems to me the interests of justice are better served by refusing the adjournment application. Whilst the risks that Mr Herbert made complaint about and was supported by Mr Murdoch about the potentiality of the loss of the benefit of the application, it could be addressed by a report back and an expedited hearing prior to the end of the time. That itself is just simply another burden and the primary purpose of the adjournment application is to seek to minimise the burden of legal hearing and costs.

In circumstances where there is a separate argument to be advanced by the CFMEU and the AMWU and this case which is different from those which are advanced in MIM, it seems to me in fact that there may be some interest in having this matter heard and determined so that all of the outstanding arguments in relation to the making of these orders can be resolved at the appellant level sooner rather than later. I place some weight upon the obligation in the Commission to resolve matters as quickly as possible as Mr Murdoch has submitted, although I don't think it's determinative and particularly in circumstances where the AWU took a leisurely 18 months to file its application in the first place, but the degree of prejudice accruing to the CFMEU and those parties which support the adjournment application and the hearing proceedings is relatively modest and in all the circumstances, it seems to me that the factors that weigh against the granting of the adjournment tip the scales however slightly in favour of the interests of justice dictating that the adjournment ought be refused and I refuse the adjournment accordingly. See you on Friday, Mr Slevin.

MR SLEVIN: Your Honour, there is another matter. In the directions issued, there was a requirement that there be an exchange of submissions this afternoon.

THE VICE PRESIDENT: That hasn't happened because of this.

MR SLEVIN: That's right, and it seems to me that it was probably unnecessary given that we filed outlined of submissions in any event. I am well aware of Mr Herbert's position and Mr Murdoch's position for Friday. I am just wondering if we could be alleviated from the requirement to exchange submissions?

THE VICE PRESIDENT: I invite you to look favourably upon that, Mr Herbert and Mr Murdoch and the other parties.

MR HERBERT: Yes, your Honour, on the indication that the arguments by the CFMEU will only exceed the arguments put in the Amcor matter by the extent to which the 118A order made against the CFMEU may have some effect on the matter, then I am easily able to deal with that and the other arguments, your Honour, so to that extent I have no objection to a direction in that regard being vacated.

THE VICE PRESIDENT: Mr Murdoch.

MR MURDOCH: Nothing to add, your Honour.

THE VICE PRESIDENT: Anyone else wish to insist upon the exchange of submissions? The parties are absolved of the direction to exchange submissions. Mr Slevin, I take it this will be in the practical world, putting aside or quarantining for one moment that AMWU argument, a fairly short hearing in all the circumstances. Is there likely to be any serious cross-examination?

MR SLEVIN: Not from our part.

THE VICE PRESIDENT: Is any party proposing to mount a serious cross-examination?

MR HERBERT: No, your Honour.

MR MURDOCH: No, your Honour.

THE VICE PRESIDENT: There is a prospect that the matter may be conducted by video hearing then, rather than in person from Melbourne. It's a long and complicated story and I don't want to bore you with it. This matter is listed and takes priority, but if it's essentially an argument which is a legal argument, a matter of contested submissions, that's something which can be done as effectively by video as it can be face to face. I'm not saying that I won't be in Brisbane, but there's just a prospect that it will be necessary to adopt that video course in the absence of a need to be there because of the need to assess the credit of witnesses in the witness box. Mr Slevin, I think I might have indicated, I don't know whether you've read the transcript of the directions hearing, but I indicated to Mr Dallas that it seemed to me that - and I take the approach that single members of the Commission should follow Full Bench decisions, even if they think they're wrong and it would require an inconsistent authority of the Full Court of the Federal Court or the High Court to induce me not to follow a decision of the Full Bench even if I thought it was wrong and that the real focus at the end of the day was in relation to an application in respect of conditions rather than certification. That doesn't mean that I don't remain with my mind open in respect of any fresh arguments that are being advanced. I do, but you can cut your cloth accordingly. If you want to go through the formalities of putting submissions that the Full Bench is wrong, then those submissions will be received, but I can tell you that I will take the approach that I've just indicated in terms of what I think the jurisprudence requires.

MR SLEVIN: Your Honour, on the point about the venue, I've no objection to it being via video conference and it would assist me in travel arrangements, et cetera, if we could determine that perhaps with the parties here. I am not sure if that's possible.

THE VICE PRESIDENT: I won't know until the end of the afternoon, Mr Slevin, and I will have my associate contact you. If it's going to be by video link, you can by all means participate by video link I take it from Sydney.

MR SLEVIN: Yes.

THE VICE PRESIDENT: And, Mr Benfell, to the extent that you wanted to do that as well, obviously that's a matter for you and I will have my associate contact you before the end of the afternoon hopefully.

MR BENFELL: Thank you.

THE VICE PRESIDENT: Anything further in Brisbane?

MR HERBERT: No, your Honour. I have no difficulty if the matter is to be heard by way of a video link. It could be usefully done. I am getting quite used to talking to television screens in this jurisdiction.

THE VICE PRESIDENT: Mr Herbert, it's always better to be face to face, but we have a choice of member policy which has been implemented in the Commission in relation to dispute resolution and it appears that I might be prevailed upon in respect of a relatively significant dispute in Melbourne. This matter takes priority as the matter being listed, so I can tell you from my own perspective, it would have been convenient to have the matter adjourned, but I don't think that's what the law requires today, but suffice it to say it's better to do it face to face and it will only be that if I need to be in Melbourne late on Friday that it will be being conducted by video link. The Commission is adjourned.

<ADJOURNED UNTIL FRIDAY 14 DECEMBER 2007 [4.29PM]