BP2007/2351, Transcript of Proceedings [2007] AIRCTrans 75 (21 February 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16488-1

DEPUTY PRESIDENT IVES

BP2007/2351

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
BILFINGER BERGER SERVICES - WATER PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2351)

MELBOURNE

2.30PM, FRIDAY, 09 FEBRUARY 2007

Continued from 6/2/2007

PN1

THE DEPUTY PRESIDENT: I don’t think we took appearances last time did we, we just went into conference. I’ll take the appearances please.

PN2

MR P LARKINS: I appear for the CEPU.

PN3

MR J WIELADEK: I appear for the AMWU with our organizer MR M DURY.

PN4

MR C GARDNER: I seek leave to appear on behalf of the respondent.
MR A FALDER is with me at the bar table.

PN5

THE DEPUTY PRESIDENT: Any objection to leave?

PN6

MR LARKINS: No objection to leave your Honour.

PN7

THE DEPUTY PRESIDENT: Leave is granted Mr Gardner. Just so that we can deal with this as efficiently as possible, I expect that you’re going to tell me that the requirements of the Act have been met and that the order should issue in the form that you’ve requested. You have asked for an attendance ballot so I’ll want to hear from you as to why that is a more efficient and expeditious way of handling the ballot. Mr Gardner has circulated a statement which I assume you have?

PN8

MR LARKINS: Yes, your Honour.

PN9

THE DEPUTY PRESIDENT: It, aside some addressing issues relating to the ballot procedure, also goes to issues relevant to whether the Commission might exercise a discretion in requiring a notice period beyond that in I think it’s section 441, or 442 I can’t – 441 of the Act, which is three days and as I understand that what is sought is a notice period of seven days in relation to any action. It may be that – and I’ll hear from Mr Gardner in a minute – it may be that you just want to keep your powder dry on that if Mr Gardner intends to have that statement sworn and provide you with an opportunity to cross-examine on it, you might want to respond to that, after that circumstance. Mr Gardner, the two issues that I’ve raised, are they the sum total of the issues as far as the respondent is concerned?

PN10

MR GARDNER: Yes, they are there your Honour there is no issue taken with the actual questions, no issues generally. It’s the two issues that you’ve identified and they as you’ve pointed out, are sought to be addressed in the statement of Mr Confroy.

PN11

THE DEPUTY PRESIDENT: Yes and you intended to call him?

PN12

MR GARDNER: Yes, if there was going to be a contest about those issues, then we will call him.

PN13

THE DEPUTY PRESIDENT: What’s the position of the union’s on that?

PN14

MR LARKINS: Your Honour, we’re going to oppose an extension of notice of seven days. As you understand we’ve only just received a copy of Mr Confoy’s statement, so we are not in a position to call any evidence contesting that, but we’d like the opportunity to cross-examine him on some of the issues contained in and we will make submissions obviously in closing.

PN15

THE DEPUTY PRESIDENT: Yes, okay, that means if you – well perhaps we can do that first of all, that might be the easiest way to go about this is if we can get the evidence.

PN16

MR GARDNER: I call Mr Confoy.

<MICHAEL ROY CONFOY, AFFIRMED [2.34PM]
<EXAMINATION-IN-CHIEF BY MR GARDNER [2.35PM]

PN17

MR GARDNER: Thank you Mr Confoy, just for the record again, if we could have your full name and address please?---Michael Roy Confoy (address supplied).

PN18

Have you made a statement in this matter?---Yes.

PN19

Do you have a copy of that statement with you?---Yes.

PN20

Is it a true and complete statement?---Yes.

PN21

Thank you, nothing further.

EXHIBIT #BBFA1 STATEMENT OF MR CONFOY

PN22

THE DEPUTY PRESIDENT: Yes, Mr Larkins?

PN23

MR LARKINS: I have no questions your Honour.

PN24

THE DEPUTY PRESIDENT: Go ahead Mr Wieladek.

<CROSS-EXAMINATION BY MR WIELADEK [2.36PM]

PN25

MR WIELADEK: Mr Confoy, there’s a general flavour to your statement about how it would be possible for the company to replace the workers if there was industrial action if some emergency arose, is that right?---Yes, that’s right in the format that they were - - -

PN26

You say that would create some sort of inconvenience for the public?---Definitely.

PN27

Are there any other sources of labour to cover such duties with such industrial action were to take place if the ballot was granted and the ballot was supported and the union chose to have industrial action?---Not within BBS itself.

PN28

No?---No.

PN29

But Transfield would be able to cover it wouldn’t they?---If Transfield were offered the position I would say yes, but they probably were going to need the umbrella so I gather they are crossing the line as far as the ETU go.

PN30

The union’s of course would dispute that last point, but Transfield does have the skill power and the knowledge to take care of - - -?---Transfield, Siemens.

**** MICHAEL ROY CONFOY XXN MR WIELADEK
PN31

Siemens as well?---Yes.

PN32

So in fact Victoria wouldn’t be left in the lurch without a maintenance provider if such industrial action went forward?---They wouldn’t be without it – no not really, but I don’t believe those two companies will attend to our needs.

PN33

One thing – I’m just having a look here – you talk about in paragraph 18 of your witness statement in the last sentence:

PN34

These changes to conditions cause a substantial increase in the number of faults, breakdowns, deficiencies in these assets.

PN35

Do you mean by that there’s what burst mains, things like that?---No, there’s – it’s total assets. The burst mains are part of it definitely, but also phase 2 pump stations, treatment plants, also pressure reducing valves. It’s all part of a – the whole system operation and the end result is burst mains or sewer overflows.

PN36

When you mean burst mains, that’s mains water is that right?---Mains water.

PN37

Yes, well I’ll put it to you Mr Confoy that the relevant employees that would be covered by this ballot would in fact not – are not involved in attending to burst water mains?---I totally agree with you. That’s not what this is about.

PN38

Okay, so burst water mains aren’t the issue there?---No.

PN39

What harm to the public would there be from this industrial action if it went ahead?---If the industrial action went ahead and we had unchecked sewer spills and that’s the focus around this, we do – we’ll talk about water – but sewer spills can lead to an environmental issue through rivers and streams, not only wildlife, but also human, human consumption. Ecol can be transmitted through this, it can get into drains, it can flood properties, it can flood businesses et cetera. So it is a fairly substantial environmental impact if sewer spills are not checked immediately.

PN40

That’s working on the assumption that neither Siemens or Transfield, or some other contract maintenance company wouldn’t be somehow contracted into fill the breaches, is that right?---If we respond within a certain time, yes we can avert a lot of that. If we can’t respond to those alarms in those time frames - - -

**** MICHAEL ROY CONFOY XXN MR WIELADEK
PN41

You’ll have either sewerage flowing out?---Yes.

PN42

Or somehow there’d be a short term contract period where another company may step into the breach?---They may. They may, but I still like to put on record that they won’t.

PN43

To your knowledge?---To my knowledge.

PN44

Just quickly you say you want seven days notice?

PN45

THE DEPUTY PRESIDENT: Sorry just while we are on that point if I can just interrupt you for a second. You’ve outlined in your statement a number of obligations that pertain to Yarra Valley Water?---Correct.

PN46

Absent an ability of your organization to meet its obligations to Yarra Valley Water, have you any way of knowing how Yarra Valley Water would meet its obligations?---No, not at this point in time we haven’t discussed this at this point in time with them, because we are only in preliminary discussions at this point in time.

PN47

So in essence you’re not advised by Yarra Valley Water that they are either able or unable to meet their obligations?---Correct.

PN48

Thank you, go ahead Mr Wieladek.

PN49

MR WIELADEK: In paragraph 14 of your statement you talk about emergency responses characterized at three levels?---Yes.

PN50

Levels M1, M2, M3?---Yes.

PN51

At this point in time do you always respond to a M1, M2 and M3 calls within the prescribed time limits?---No.

PN52

No?---No.

PN53

Is there any risk to the public from that?---We achieve our key performance indicators. There is always a risk to the public if there’s a sewer spill, yes.

PN54

So there’s always a risk to the public if there’s a sewer spill?---API’s are not set at 100 percent.

**** MICHAEL ROY CONFOY XXN MR WIELADEK
PN55

Pardon?---They are not set at 100 per cent.

PN56

Not set at 100 per cent?---No.

PN57

But if there is a – if you fail to attend to an emergency within the M1, M2 or M3 time bans, will there be a risk to the public?---Yes.

PN58

And you do not always meet those periods right now?---No.

PN59

So I’ve just got I think one other question.

PN60

THE DEPUTY PRESIDENT: Sorry, again I’m interrupting Mr Wieladek. You say there will be risk to the public if you fail to meet your indicators?---Yes, definitely.

PN61

That is obviously absent Yarra Valley Water making some arrangement to cope with that circumstance?---If Yarra Valley Water make arrangements yes, that takes us out of the scene at that point in time.

PN62

That would obviate?---We are the principle contractors.

PN63

Yes, I understand the point I just wanted to be clear that the obligation rests with Yarra Valley Water to ensure that they - - -?---They meet the standards of the ESC, the essential services.

PN64

Yes, sorry to interrupt you again Mr Wieladek.

PN65

MR WIELADEK: There is just I think one more question. You request seven days notice is that right?---Yes.

PN66

You say three days notice is not enough?---Definitely.

PN67

Yes, so if you put in a notice for industrial action on the Monday, when would the union be allowed to take industrial action?---I’m asking for seven days in my statement, that will be on the Monday after seven days.

PN68

Let’s say if it was three days, when would they be allowed to take industrial action next?---I would say three days after notice.

**** MICHAEL ROY CONFOY XXN MR WIELADEK
PN69

What day is that of the week?---Thursday.

PN70

No further questions your Honour, thank you.

PN71

THE DEPUTY PRESIDENT: Thank you, is there any re-examination?

PN72

MR GARDNER: No your Honour.

PN73

THE DEPUTY PRESIDENT: Right you can stand down now Mr Confoy, thank you for your evidence.

<THE WITNESS WITHDREW [2.45PM]

PN74

THE DEPUTY PRESIDENT: All right who is going to lead off?

PN75

MR LARKINS: Thank you, your Honour. The union will put on the record that we say we have complied with the relevant provisions of the Act with regard to protected action ballots. We say that our application and its accompanying material complies with the Act and that further the orders that we rely on – or directions issued by your Honour to say employees have been given an opportunity to make submissions.

PN76

We further say that absent any evidence to the contrary section 461 has been complied with in that the union has been genuinely trying to reach an agreement. We further say that there is no evidence of pattern bargaining and again absent any evidence we say that the union has complied with this provision. In respect of the position the company has taken with regard to exceptional circumstances warranting a seven day notice period, we would oppose such a position. Our position is that there is nothing exceptional about his case. The position of the company seems to be that they would be harmed commercially in some way. That their key performance indicators will be I guess not met, and that their position with Yarra Valley Water will be in some sort of jeopardy.

PN77

We say that this is a common occurrence, industrial action, company’s commonly have contracts with other parties that may be interfered with. This is not the intention of the unions but it’s a common occurrence. So our position is that there’s nothing exceptional about this case that would warrant a seven day notice period. Insofar as they say there is a greater risk to the public or a greater threat of environmental harm, we would say there is clearly other companies that can fill the breach, the principle I guess contractor or body in this instance, is Yarra Valley Water, who have at their disposal other companies with the resources to meet the needs of the services that are provided by Bilfinger Berger.

PN78

So for them to say that because industrial action might happen this would increase a risk to the public, we say this is incorrect because in fact there would be companies in a position to cover that labour. I might hand over to Mr Wieladek.

PN79

THE DEPUTY PRESIDENT: Did you want to address the issue of the attendance ballot Mr Larkins?

PN80

MR LARKINS: Yes I would. We’ve taken - - -

PN81

THE DEPUTY PRESIDENT: Before you do that, you would be aware that the Act imposes an obligation upon the Commission to order a postal ballot except in circumstances where it’s satisfied that it would be more efficient and expeditious to do it by some other means. So you need to persuade me why it’s more efficient and expeditious to do it by some other means.

PN82

MR LARKINS: Yes, we understand that your Honour. Our instructions have been that we agree with the company’s submission or position, that the employees aren’t always attending the depot or Lilydale site. Our instructions are that it would be much more efficient for the ballot to be conducted over perhaps a period of two days, at a closing time between 4 pm and 6 pm where all employees would be in a position to attend the depot and have the relevant opportunity to vote. They’re the instructions we’ve received from our employees. We have I guess a risk associated with a postal ballot that employees will receive them, put them aside and fail to take proper notice of them and won’t actually participate in the ballot as they are entitled to.

PN83

Our instructions are that it would be relatively simple and convenient for all employees to attend the depot over a period of two days. We would say that this would be more than sufficient and much more efficient, because of course there are delays associated with postal ballots. There needs to be an extended period of time usually with the Electoral Commission to allow for the fact that people take their time receiving post, returning and so forth and so we would say it’s much more efficient that the ballot be conducted over two days. It would be finished with and all the employees would have a much more – a greater opportunity to participate in the ballot as they are entitled to. They are the instructions we’ve had and we say there’s no reason why a postal ballot would in fact increase efficiency or be more efficient in any way than a depot ballot.

PN84

THE DEPUTY PRESIDENT: Well it doesn’t have to be, with respect Mr Larkins.

PN85

MR LARKINS: No, I understand that position, but we would say - - -

PN86

THE DEPUTY PRESIDENT: It’s the default position.

PN87

MR LARKINS: We would say the reverse, that in fact it’s more efficient, much more efficient for the employees to attend the depot. We would say it’s a much simpler way of conducting the ballot and much more likely that people will actually participate.

PN88

THE DEPUTY PRESIDENT: All right thank you.

PN89

MR WIELADEK: Your Honour, the AMWU supports Mr Larkins submissions in this matter, but we do have one thing to add, particular to our union.

PN90

THE DEPUTY PRESIDENT: Sorry, I assume you mean that you adopt his submissions in respect of his application rather than supporting his submissions, is that correct?

PN91

MR WIELADEK: Yes we are adopting – there is just one little thing we would like to add. If you look at our application it contained the pro forma questions of the AMWU. There was a mix up at our offices once our administrative staff between inserting the ETUs questions which were those that the workforce stand aside to do so – we request that the Commission exercise its power under section 111(1) - to amend our submission – our application to include the ETUs questions in this matter. My understanding is that Mr Gardner doesn’t oppose that, so we are in your Honour’s hands on that matter.

PN92

THE DEPUTY PRESIDENT: Yes, sorry you’ve got me a bit confused I must say. I’m not quite sure what was the issue that requires amendment in relation to your questions. The questions that I’ve received in the material that’s been filed are not the questions, is that what you’re saying to me?

PN93

MR WIELADEK: What I’m saying is that the questions in the AMWUs application are four questions which are the AMWUs pro forma questions. We were supposed to include the ETUs I think eight questions.

PN94

THE DEPUTY PRESIDENT: In addition to?

PN95

MR WIELADEK: Not in addition to, in place of.

PN96

THE DEPUTY PRESIDENT: In place of. So the questions would be the same in both applications?

PN97

MR WIELADEK: Yes.

PN98

THE DEPUTY PRESIDENT: Is that what you are trying to say to me?

PN99

MR WIELADEK: Yes, based on the CPSUs ones.

PN100

THE DEPUTY PRESIDENT: All right, okay.

PN101

MR WIELADEK: Thank you for that your Honour.

PN102

MR GARDNER: I think the key point is that the notice to the employees about the ballot as, on my instructions, the questions that the unions both seek. So there can be no confusion in terms of that notification about this hearing.

PN103

THE DEPUTY PRESIDENT: No.

PN104

MR GARDNER: So we are not going to take a point like that sir. We do have something to say about the two issues. If I can deal with the exceptional circumstances point first and just refer to the Act if I may. We need to satisfy you there are exceptional circumstances justifying a longer period than three days. The phrase, were exception circumstances is not new to legislation, but there’s not a lot of discourse we could find on what the meaning of that term is. We did find a Full Bench decision which touches on it and we might just make reference to that.

PN105

THE DEPUTY PRESIDENT: I suspect in relation to retrospective effect of awards.

PN106

MR GARDNER: Exceptional matters and orders, but on our look at previous authorities the suggestion is and is on page 237 of this decision. This decision dealt with the old exceptional matters orders which your Honour would be aware of the previous legislation. So for the purposes of this Full Bench decision there was a consideration of what exceptional means and on page 237, it’s about two thirds of the way down, your Honour.

PN107

THE DEPUTY PRESIDENT: Yes, I can see it.

PN108

MR GARDNER: It says:

PN109

Thus in the context of section 89(a)(7) generally the word exceptional may be given the ordinary meaning associated with the nature of something that is accepted, a personal thing or case, to which the general rule is not applicable.

PN110

We rely upon that in support of the position, which has been made out on the evidence that this is not the general position. This is something outside of the ordinary. We have a situation where the respondent has a responsibility to embark upon certain services, if those services aren’t met, or if there is a threat of industrial action my client needs on the evidence five to seven days to find a back up workforce. The importance of that is borne out by the nature of the service and the regulatory environment. The fact that it deals with emergency situations and it seems quite a volume of emergency situations and the impact if that’s not dealt with.

PN111

Now there’s been some speculation about Yarra Valley Water and what it can do, but with respect to my friends, that is mere speculation and doesn’t answer the issue. Whatever the position with Yarra Valley Water, these circumstances are exceptional in the sense that they are outside of the ordinary. Now if this is not outside of the ordinary I wonder what is. Certainly it’s in the same category as perhaps emergency services to the extent that the failure to meet the relevant service can cause harm and Mr Confoy when pressed about this referred to the risk of – to paraphrase him – pollution that he referred to the risk of ecoli poisoning through seepage associated with the services not being done.

PN112

So, we believe that the evidence is enough here to warrant a high number of days. I should also add in looking at this provision we couldn’t find any treatment of this under the secret ballot provisions. We couldn’t find a decision which had dealt with it, so perhaps this is a - - -

PN113

THE DEPUTY PRESIDENT: A new law Mr Gardner, we are breaking ground.

PN114

MR GARDNER: We are sir, we are breaking new ground. Now if I can turn to the next issue which is the postal ballot issue, that is of course the default position and you’ve outlined what the test is. It was put to you that if it’s not done on site there is a risk to the union about attendance and the ballot perhaps getting up and so forth. That with respect is just not relevant here. That is not a relevant consideration. It is more about the other voting methods, the one that they propose is more efficient and expeditious. There was no challenge made of the evidence of Mr Confoy in that respect. He refers to the nature of the workforce of being a very mobile one, that doesn’t work in the one spot it’s out in the field.

PN115

Therefore, he says no more than 40 per cent of the employees would attend the depot in one day. That would mean that in the very least there would need to be three days to capture everyone. There are also the other considerations about travel time and so forth that bears upon the efficiency of the method. So for those reasons we say that the default position shouldn’t be disturbed and nothing which you’ve heard will decide, we say, or convince you of that. Now that is all I have to say on this.

PN116

THE DEPUTY PRESIDENT: Right Mr Larkins?

PN117

MR LARKINS: Nothing further from me your Honour.

PN118

MR WIELADEK: Your Honour I’d just like to briefly touch upon one or two of the matters that Mr Gardner has raised. We would say that to understand the interpretation of exceptional circumstances, that your Honour look at this matter as it is. It is a commercial company who will suffer some sort of financial loss through not undertaking work and may be suffer through penalties and also Mr Gardner says that seepage – failure to meet seepage will cause harm. Well evidence of Mr Confoy is that actually already it at this moment is causing harm through some sort of – not meeting M1, M2 and M3 guidelines, but that’s really in some respects besides the point.

PN119

What we focus on is that it would be similar to any other company, a cardboard manufacturing company, a company of metallurgy, if they do not fill their production requirements their business requirements, there will be economic consequences for them in that respect. Some of those may take a form of penalties and it’s in that context your Honour what we seek to submit to the Commission is that to say that this particular company in this particular case, is exceptional, is to artificially distort the nature of the commercial environment that it lives in which is not different to any other company that is just in time contracting. If the Commission pleases.

PN120

MR GARDNER: Sorry, can I just - - -

PN121

THE DEPUTY PRESIDENT: We are not going to go back and forwards on the paper all day, but go ahead Mr Gardner.

PN122

MR GARDNER: I’m not but my friend has sought to suggest that our emphasis is around the commercial impact on our side. We don’t seek to emphasise that.

PN123

THE DEPUTY PRESIDENT: No, and I didn’t read that into the dispute.

PN124

MR GARDNER: No and it really is paragraphs 21 to 24 which are the key provisions and really nothing was put in cross-examination to undermine that.

PN125

THE DEPUTY PRESIDENT: Yes.

PN126

MR GARDNER: Thank you, your Honour.

PN127

THE DEPUTY PRESIDENT: Thank you. Yes, if I can deal firstly with the issue of the method of voting. 463(2)(b) of the Act requires that before a method other than a postal ballot can be ordered, the Commission has to be satisfied that the other method is more efficient and expeditious. It seems to me that by more efficient the meaning that the dictionary would place upon the word efficient is apposite in this instance and that is that that would produce the desired result with a minimum of wasted effort.

PN128

As far as expeditious is concerned that’s defined by the dictionary as, speedily performed. Now it seems to me that there is a requirement imposed upon the applicant in this matter to persuade me by more than simply assertions from the bar table that the desired result with attendance ballot will be produced with the minimum of wasted effort and further that it can be more speedily performed and I don’t really have anything beyond the assertions from the bar table that that’s the case. On that basis I’m not prepared to depart from the requirement imposed upon me to order a postal ballot in the circumstances. The fact that there may be employees who would chose not to reply to a postal ballot who may respond to an attendance ballot, in my view is in the realms of speculation. I don’t have any evidence before me that suggested will in fact be the case. So I intend to refuse the application insofar as it requests that there should be an attendance ballot.

PN129

In respect of the employer’s application there should be a extended period of time of notice provided by the unions in respect of any industrial action they might take, in fact the period in this case requested is seven days. Section 463(5) of the Act this has been pointed out imposes a discretionary ability upon the Commission to grant such an extended time period if it’s satisfied that exceptional circumstances exist. Not it seemed to me to be a relevant definition provided by Mr Gardner in respect of the word exceptional in referring to the decision in Australian Colliery Staff Association v Gordonston Coal Management.

PN130

If I can find that, it was on page 237 I think you said Mr Gardner, yes page 237 of the decision, which if I can paraphrase it, is to the effect that for something to be exceptional there should be a reason why the general rule should not be applicable. The general rule here is three days. I’m unable to see why the general rule should not be applicable in this case. There would be many instances in my view where a contractor has obligations to its client, which it’s unable to meet due to protected industrial action. I have no evidence before me as to how Yarra Valley Water would meet its obligations absent an ability by BBSA to meet its contractual obligations to Yarra Valley Water.

PN131

I may take a different view, or I may have taken a different view, if I had such evidence. Presumably it would have been available to the respondent to call such evidence if it wanted to, it’s chosen not to. I don’t draw any inference in respect of that. However, it seems to me that the obligations remain upon Yarra Valley Water to do whatever it needs to do to cope with the circumstances which may occur in respect of sewerage outflows and as I’ve said there’s nothing before me that says that Yarra Valley Water is unable in the circumstances to do that.

PN132

On that basis I intend to decline the application by the employer to extend that notice period and there will be a postal ballot of employees in respect of both applications. The requirement to provide notice to the employer of the industrial action will remain in accordance with section 441 of the Act. I better check that, it is 441, isn’t it? Yes section 441(3) of the Act. Now that leads us to the issue of the orders themselves.

PN133

There’s been a request that the AMWU – or by the AMWU that the draft that is provided in respect of the questions to be asked of employees be amended to reflect the same questions as are asked in the CEPU draft. The request is that the Commission exercise its powers under 111(1(L) of the Act, as I understand it that’s correct Mr Wieladek?

PN134

MR WIELADEK: Yes, your Honour.

PN135

THE DEPUTY PRESIDENT: I propose to comply with that request and amend it accordingly. I note that there is no objection by the employer to that course of action. The draft orders that are before me relate to attendance ballots and given the decision that I’ve just made, are to at least that extent are no longer applicable. There will need to be some conversation with the Australian Electoral Commission who I understand has been nominated by the unions to be the agent, the ballot agent in respect of both of these applications to determine an appropriate timetable for a postal ballot.

PN136

Now what I propose subject to what the parties have to say about it, is that those discussions should take place between the unions and the Australian Electoral Commission and that a draft order or orders in this case, be put together on the basis of there being a postal ballot and on the basis of the advice from the Electoral Commission regarding timing. That, that draft be provided both to the Commission and to the employer no later than close of business on Monday – is that a reasonable timeframe?

PN137

MR WIELADEK: Yes, your Honour.

PN138

THE DEPUTY PRESIDENT: In fact, I’m inclined to make it a little bit earlier than that because Mr Gardner may want to have some response to something within that draft and I would like to have that response if there is to be one, by close of business on Monday. So is it possible to?

PN139

MR WIELADEK: Midday your Honour perhaps.

PN140

THE DEPUTY PRESIDENT: Yes, there shouldn’t be too much involved. I mean it’s simply a matter of changing the nature of the – I mean we could do it now, but it would likely change anyway once you speak to the Electoral Commission about what they need. So if you can provide a draft both to the Commission and the employer by midday on Monday. If I can then ask you Mr Gardner to respond with any issues that might arise from that draft, if there are any. If I fail to hear from you in respect of that draft by close of business on Monday the order will issue subject to my own satisfaction with it in substantially the terms of the draft. If I intend to change the draft in any way I will notify the parties accordingly.

PN141

MR GARDNER: That’s fine your Honour.

PN142

THE DEPUTY PRESIDENT: Is that a reasonable course of action?

PN143

MR LARKINS: Yes, that’s fine by us, your Honour.

PN144

THE DEPUTY PRESIDENT: Anything further? All right, thank you the matter is adjourned.

<ADJOURNED ACCORDINGLY [3.12PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL ROY CONFOY, AFFIRMED PN16
EXAMINATION-IN-CHIEF BY MR GARDNER PN16
EXHIBIT #BBFA1 STATEMENT OF MR CONFOY PN21
CROSS-EXAMINATION BY MR WIELADEK PN24
THE WITNESS WITHDREW PN73