BP2007/4059, Transcript of Proceedings [2008] AIRCTrans 403 (29 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18804-1

SENIOR DEPUTY PRESIDENT LACY

BP2007/4059

s.423(3) - Notice of initiation of bargaining period
Health Services Union
and
Austin Health
(BP2007/4059)

MELBOURNE

2.18PM, TUESDAY, 15 JULY 2008

Hearing continuing

PN1

MR D LANGMEAD: I appear for the Health Services Union.

PN2

MR V GOSTENCNIK: I appear with MS ROBERTS for the employer parties to this proceeding.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gostencnik. I have listed this matter this afternoon for mention and directions calling upon Corrs' letter of 30 June requesting directions to be directed to the HSU to have been its determination and subsequently there were two letters from the HSU on 14 July, one of which seeks a hearing on the question of what issues in the Commission's assessment constitute matters in issue and notifying the Commission of its intention or its request to inspect documents that have been produced today. So can we deal first of all with letter from Corrs dated 30 June.

PN4

MR GOSTENCNIK: Yes thank you, your Honour. Your Honour, the Commission made a number of directions which were ultimately amended, but the substance of our complaint relates to the first direction that was made by the Commission in relation to the form of the draft workplace determination that was to be filed and served. On our reading of the direction, your Honour, what was required was that the draft direction should identify where the provisions in the draft determination reflected existing terms and conditions and the source of those. That is the operative industrial instrument and where they constituted new or varied terms.

PN5

Now, the HSUA in its draft determination which was filed and served indicate in their covering letter that the existing terms and conditions are contained in black text and new terms and conditions or varied terms and conditions are in redundancy underlining. That essentially is where we strike some problems. I won't go through the entire workplace determination, indeed we haven't done so.

PN6

THE SENIOR DEPUTY PRESIDENT: No.

PN7

MR GOSTENCNIK: But if I could just highlight some examples of where that causes some problems. Does your Honour have a copy of the draft?

PN8

THE SENIOR DEPUTY PRESIDENT: I do.

PN9

MR GOSTENCNIK: If I can ask your Honour firstly to turn to page 64.

PN10

THE SENIOR DEPUTY PRESIDENT: Of the HSU?

PN11

MR GOSTENCNIK: Of the HSU draft, yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR GOSTENCNIK: Your Honour will see at the top of that page there's a classification titled Health Information Manager Grade 2 and then there is a paragraph and three dot points underneath that. Now, according to the HSU's covering that would, because it's in black, constitute an existing term. The fact is, sir, that there are some words that have been omitted from the third dot point which is derived from the existing agreement and that is the words in the opinion of the chief health information manager. That's not red lined as being a variation. Similar omissions are to be found, for example, in the classification of music therapist grade 2 at page 67 where your Honour will see that the words:

PN14

Is in charge of a music therapy section of a therapy department.

PN15

It's there set out in red indicating that it's new text. Well, that's existing text, but there is also text that's been deleted. The words that have been deleted, for example, are reference to the existing provisions on recommendation of the medical director. And likewise there's a similar omission in respect of the classification of health information manager chief's position. There are others of that kind. And what we ask is that the HSU do what it was asked to do and that is to indicate properly those terms that it seeks that are new and those that are varied from existing terms and conditions and the source of those documents. Now sir, in the body of the determination , for example, there is what purports to be a new provision dealing with dispute settlement. I have asked your Honour to turn to page 7 and 8 of the - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Which page, 7 and 8?

PN17

MR GOSTENCNIK: Page 7 and 8. Now, your Honour will see that the entirety except for the heading Part 3 Dispute Settlement, the entirety of clause 9 is in red underlining which would indicate that it's a new or varied condition which I suppose on its face strictly speaking might be correct, but from our perspective entirely misleading in this sense. First of all most of clause 9.1 is derived from the existing award. The necessary modifications that appear to be made to it are those which would make it not prohibited content. And you will see, for example, an attempt in clauses 9.1.2 and 9.1.3 to make reference to the representative of the HSUA if that person is the chosen representative, which would indicate a desire to ensure that the clause is not prohibited content.

PN18

But that aside, the clause is in fact an existing provision with modifications derived from the award. And likewise in relation to 9.2, that provision is an existing provision derived from the current pre reform certified agreement, save for some modifications of a similar nature. Now, what we had done in our workplace determination was to make clear in its form and structure the origin of the provisions. For example, at the beginning of each clause after the heading we would indicate where the source of that entitlement is derived and then in the body of the provision we would identify words that we proposed to delete and words that we proposed to add so that it's clear on the face of the document the source of the entitlement and whether it's a new or varied condition.

PN19

And we simply ask that the HSUA do the same without there being a need for my clients to go through line by line each clause, particularly those clauses that are marked in red as though they're entirely new provisions which is clearly not the case. I think we're entitled to know the source of those provisions and the variations to the provisions that the HSUA seek. So essentially that is the substance of the complaint we make and we ask for a direction to the HSUA that they will provide a document in amended form. Your Honour, whilst I'm on my feet just in the interests of time might I address the issue of the subpoena?

PN20

THE SENIOR DEPUTY PRESIDENT: Yes.

PN21

MR GOSTENCNIK: Your Honour, or the summons to produce, my clients produced last Friday to the Commission I think in total some six boxes of documents which contained a combination of documents and also some disks containing data which are documents which we produced in response to the summons. We don't say that that's a complete answer to the summons. My client's continued to make searches and I think will be in a position to give you a further bundle, a large bundle of documents before the end of the week. And we think that based on the assessment that we made of the documents there may not have been complete compliance by some of the employers and we will follow up those matters with those employers and produce whatever documents are further produced.

PN22

Some of the employers for whom I act are concerned about the sensitive nature of some of the material and we have indicated they're obliged to produce those documents nevertheless to the Commission. We have done so. But they have asked me to ask the Commission, and I don't think I need to remind Mr Langmead of the obligation that he has to treat those documents in a sensitive fashion, we use them only for the purposes of these proceedings and for no other purpose. I don't seek an order to that effect, I simply want it stated on the record that my client does have those concerns.

PN23

THE SENIOR DEPUTY PRESIDENT: What do you say about inspection?

PN24

MR GOSTENCNIK: I'm happy for Mr Langmead and his instructors to inspect the documents.

PN25

THE SENIOR DEPUTY PRESIDENT: Did you wish to have a representative present?

PN26

MR GOSTENCNIK: I don't think that's necessary.

PN27

THE SENIOR DEPUTY PRESIDENT: What if they want to copy material?

PN28

MR GOSTENCNIK: Well, there are - I'm not sure what the position is on the disks. It may be that data can't be downloaded and we might have to make some arrangements. But certainly in relation to any documents that they seek copies provided, if they indicate what documents have been copied I am content for them to be copied. Again Mr Langmead may or may not seek to rely on those in the proceedings and we'll have an argument about it at a later stage.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Is there anything else you want to say at this stage, Mr Gostencnik?

PN30

MR GOSTENCNIK: No.

PN31

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Langmead.

PN32

MR LANGMEAD: Thank you, your Honour. Your Honour, can I start by indicating how the union went about preparing the draft that was filed with the Commission and sent to my friend. Your Honour, in about August, September last year the union prepared a consolidated document which it had attempted to reflect the terms of the existing award, the existing pre reform agreement, that were not sought to be changed. It also produced a document which included all the various clauses which were either claims for new clauses or claims for varied clauses and it had therefore two documents, one being effectively a past status quo and the other one being a new or varied terms.

PN33

These were given to the employers around about that time with the explanation of what they were and in particular in relation to the document which was purported to be the consolidation, that the statement made to the employers this is what we've attempted to do, we don't put it forward as a controversial document, we have done it to the best of our abilities, we believe it's accurate but we invite you to examine it yourselves and tell us if you think we've made a mistake anywhere. With the new or varied document it, as I say, contains some new clauses, some replacement clauses which are variations to existing ones and the dispute settlement clause identified by Mr Gostencnik is one such example.

PN34

The two documents were combined for these proceedings and filed in the form in which you have them filed. We haven't had any indication prior to today of what were perceived deficiencies in it and we haven't obviously therefore been able to have the opportunity of checking whether the ones he's identified even today are accurately identified as inaccuracies or omissions. And we would take issue with his description of the dispute resolution clause, for example. We'd say we have indicated in accordance with the directions of 1(b) identified them as constituting new or varied terms and conditions and I suggest that an over simplification to describe that clause as simply something based on the award and the agreement clauses, there are similarities, there are differences.

PN35

And it was put forward as a consolidated, varied clause, not intended to derive any substance from the award or agreement in terms of justification, but put forward as a sensible dispute resolution clause for the future. And it was that clause in its complete proposed form which was at issue in the bargaining period.

PN36

THE SENIOR DEPUTY PRESIDENT: In those terms?

PN37

MR LANGMEAD: The terms that the union put forward, your Honour, were not accepted by the employer.

PN38

THE SENIOR DEPUTY PRESIDENT: But is that the terms it was in?

PN39

MR LANGMEAD: Yes, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: The one that's included in the draft determination that was provided by the HSU?

PN41

MR LANGMEAD: Yes, your Honour. And I think it's been in that form since around about August, September last year. Possibly varied in minor ways over the later months of 2007, but substantially in those terms. Your Honour, my instructor wrote to the solicitors for the employers seeking particulars of the perceived deficiencies. It seems to us that that would have been a sensible course. They had after all months and months to identify deficiencies in our documents, but never come forward with anything. And if they're conscious of some now then they should identify them. Your Honour, we put forward this document in good faith.

PN42

Yes there may be errors, but they're inadvertent errors and the document as it's filed was intended in good faith to reflect that which the orders required.

PN43

THE SENIOR DEPUTY PRESIDENT: And I understood Mr Gostencnik's complaint it's not so much the omissions or errors, if that's what they are, but the fact that it's not in the form or doesn't conform with the way in which the directions required it to be produced.

PN44

MR LANGMEAD: Well again I take exception to that, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, I may be mischaracterising what Mr Gostencnik is saying.

PN46

MR LANGMEAD: I think your Honour is probably correct. He has said well we've done it in this form, we like that form and so therefore that's the form the union should do it. The form required by the order doesn't require a slavish following of a particular form, a particular way of identifying where things came from and in my submission, for example, the dispute resolution clause is absolutely compliant with the direction.

PN47

THE SENIOR DEPUTY PRESIDENT: The dispute resolution clause. But the other parts of it, for example, or the example that Mr Gostencnik gave, for example, of omissions or no identification of something that's been changed suggests that you nearly have to go through the draft determination line by line to confirm whether or not it does reflect an existing term or condition and if it doesn't why it's not underlined in red, or not in red.

PN48

MR LANGMEAD: As I said, your Honour, we had no indication whatsoever of what these perceived deficiencies were. We haven't been able to check them and as my instructor has been busy in the last five minutes, but your Honour, if the employers know that there are deficiencies then the very least they can do is tell us what they are. Because they're not intentional. The document was intended to indicate each change. If that is not the case then the union if needs be apologises for its inadvertent errors or omissions. And of course if your Honour will correct them, if and when it becomes aware of them.

PN49

THE SENIOR DEPUTY PRESIDENT: All right.

PN50

MR LANGMEAD: But to require of us a direction to go and do this, your Honour, it's heavy and high handed, in my submission, in the extreme when the employers, we say, have had months to try and identify deficiencies in these documents which it had in one form or another. Haven't done so, haven't bothered telling us what they thought were wrong with it until today. And we will certainly take on board any comments they make and we will also check in particular the classification definitions because they are fairly extensive and we will attempt to identify any errors or omissions that have occurred. But your Honour, we haven't done it deliberately and certainly haven't intended not to comply with the directions of the Commission.

PN51

THE SENIOR DEPUTY PRESIDENT: All right. What do you say about the arrangements then for, well first of all about the documents that have been produced by the respondents or health services?

PN52

MR LANGMEAD: We do seek access to them, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Well Mr Gostencnik's got no objection to that.

PN54

MR LANGMEAD: No.

PN55

THE SENIOR DEPUTY PRESIDENT: Or doesn't propose that. But what arrangements are there made for that?

PN56

MR LANGMEAD: I don't believe any arrangements have been made to date, your Honour. I don't know how big these six boxes are or what they contain. It ordinarily - - -

PN57

THE SENIOR DEPUTY PRESIDENT: They're big.

PN58

MR LANGMEAD: Your Honour has superior knowledge. Your Honour, I ordinarily would apply for leave to uplift the documents so that the union could take them to its office and properly examine them in that way.

PN59

THE SENIOR DEPUTY PRESIDENT: And you give an undertaking as to the confidentiality of the documents do you?

PN60

MR LANGMEAD: Your Honour, it goes without saying that they can only be used for the purposes of these proceedings as Mr Gostencnik indicated.

PN61

THE SENIOR DEPUTY PRESIDENT: All right. Now, what's the request you make about identification of the issues?

PN62

MR LANGMEAD: Your Honour, a considerable number of matters which are identified as new or varied matters in the employer's draft are matters which we say were never at issue in the bargaining period and therefore can't be part of the determination and should be struck out of their proposed draft.

PN63

THE SENIOR DEPUTY PRESIDENT: You say never at issue, or they were never raised in the bargaining period?

PN64

MR LANGMEAD: Well, never raised, I guess, would be one way of characterising it, your Honour. But we would say in the context of the negotiations they simply weren't at issue and they represent new claims by the employers after determination. Now, we haven't come prepared today to argue that point.

PN65

THE SENIOR DEPUTY PRESIDENT: No.

PN66

MR LANGMEAD: And the matter be probably returnable before the Full Bench or at least, your Honour, at a time convenient to the Commission and the parties.

PN67

THE SENIOR DEPUTY PRESIDENT: I take it from what's fallen from you though, Mr Langmead, there hasn't been any discussions or further consultations between the union and the health services since the last matter, the matter was last before the Commission. Is that right?

PN68

MR LANGMEAD: The matters at large, your Honour?

PN69

THE SENIOR DEPUTY PRESIDENT: Well I mean, has there been any attempt to resolve these issues that you're raising now by consultation between the parties?

PN70

MR LANGMEAD: No, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: No. All right. Did you want to say anything more at this stage?

PN72

MR LANGMEAD: Yes, your Honour. There is the potential for other threshold issues which may be appropriate for resolution prior to the main hearing. For example the solicitors for the employers have foreshadowed or reserved their rights to argue about jurisdiction in relation to certain community health centres which we take it to mean that they may argue that they are not constitutional corporations. And if that were the case and particularly if it required more than a short argument and certainly if it required calling evidence, we wouldn't want the proceedings to be delayed by ..... or not be delayed, it shouldn't be prolonged or time taken up at the substantive hearing with such a threshold matter.

PN73

And it may be that if the factual basis upon which any such contention was made was given to the union in advance then we would examine that and determine a position on it which may be in accord with what the employers are putting. But as I understand it they don't yet put it, they just foreshadow it. So your Honour, it would, in our submission, be appropriate to deal with the matters at issue question and any other threshold question that were able to be dealt with by that stage at a preliminary hearing.

PN74

THE SENIOR DEPUTY PRESIDENT: All right. I'll hear what Mr Gostencnik has to say.

PN75

MR LANGMEAD: Thank you, your Honour.

PN76

MR GOSTENCNIK: Your Honour, can I deal firstly by way of reply in relation to the form of the document. I just want to make a couple of points. Firstly that the directions that the Commission made were ultimately directions for the HSUA, not the employers, and we have done our best to comply in the spirit of the - - -

PN77

THE SENIOR DEPUTY PRESIDENT: This is the amended direction you were given on 13 June?

PN78

MR GOSTENCNIK: Yes, that's right. Your Honour, the - - -

PN79

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Gostencnik. You're not saying though that it necessarily has to be in the same form in which the health services have produced theirs?

PN80

MR GOSTENCNIK: No sir, we're not. But what we are saying is that we think that the orders or the directions require the source of the entitlement which it's an existing entitlement to be clearly identified. I just want to make a point about
Mr Langmead's comment about the dispute resolution procedure. If indeed that is a new provision, which we would dispute, certainly that the form in which they have adopted the drafting of that procedure which on any cursory analysis will make it clear that it's a combination of an existing award provision and an existing agreement provision. But the methodology in which they adopt is different to the methodology they adopt elsewhere.

PN81

So for example, in the classification structure they make clear that they are varying the terms of existing provisions, for example at page 73 where there is a classification for recreation therapist grade 2. There are existing words which we take to be the words appearing in black and consistent with the indication that the HSUA have given they are existing terms and we take the red to be a variation to those existing terms. Now, they have adopted that rational in respect of a classification structure in other provisions and we don't see why they shouldn't be required to adopt it in respect of conditions which are plainly existing conditions but just sought to operate in a modified way.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR GOSTENCNIK: Your Honour, in relation to the matters at issue our position is that there need not be a separate hearing about what matters were and were not at issue. Whether or not a matter is at issue is a matter that the Commission must decide in determining the terms of any workplace determination that it makes. It's part of the hearing. Indeed in our submission, whether or not a matter was at issue will be the subject of evidence as part of the general hearing, presumably also the subject of a submission.

PN84

THE SENIOR DEPUTY PRESIDENT: It would be helpful if the parties could identify between themselves what matters are in issue.

PN85

MR GOSTENCNIK: Well your Honour - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Without the Commission.

PN87

MR GOSTENCNIK: I am more than happy for either with the Commission or separately to sit down with the HSU and go through the two workplace determinations line by line and determine what matters were at issue and what were not. And at least that will clarify for both parties those matters that we need to argue about. It might also have the benefit of identifying those terms and conditions of each workplace determination which are not very controversial. But whatever - and we are happy for that to occur. I think I indicated to the Full Bench when convened on the question of the direction it should make we're happy to participate in that sort of a process.

PN88

But so far as any determination about whether or not it is or is not at issue, that's a matter that should fall from the determination as part of the general case. As to the question of some of the community health centres it is true that those bodies are giving consideration to whether they are or are not a constitutional corporation.

PN89

THE SENIOR DEPUTY PRESIDENT: Sorry, that's the jurisdiction issue is it?

PN90

MR GOSTENCNIK: That's the jurisdiction issue.

PN91

THE SENIOR DEPUTY PRESIDENT: Is there any - - -

PN92

MR GOSTENCNIK: Well, we haven't formed a view on it. I simply foreshadow that. But if those community health centres wish to take that point, then we think it's sensible that that be determined at the outset. And we undertake to give the Commission and Mr Landmead as much notice as possible.

PN93

THE SENIOR DEPUTY PRESIDENT: Well, it would be helpful if the entities themselves could be identified along with the grounds upon which each jurisdiction point is taken in respect of them.

PN94

MR GOSTENCNIK: Well, the only jurisdictional point that we'll be taking is that - - -

PN95

THE SENIOR DEPUTY PRESIDENT: Yes, ...... Well, if the entities could be identified at an early stage that would be helpful. As Mr Langmead said, it may well be that parties will agree on the exclusion of those particular entities. All right, sorry, did you want to say anything else?

PN96

MR GOSTENCNIK: No sir.

PN97

THE SENIOR DEPUTY PRESIDENT: No. Mr Langmead, looking at the direction itself it says reflect existing terms and conditions provided by an operative industrial instrument and that was to be identified. Well, it doesn't appear to me, though, that the document does identify the industrial instruments from which these things are taken, does it?

PN98

MR LANGMEAD: Well it doesn't, your Honour. And with respect I don't think the employer one does either. I think we can ..... I withdraw that. But certainly in respect the amended directions don't require that, the identification of the instrument.

PN99

THE SENIOR DEPUTY PRESIDENT: It says:

PN100

To the extent possible the draft determination should identify any terms and conditions of employment that reflect existing terms and conditions provided by the operative industrial instrument.

PN101

MR LANGMEAD: It doesn't require the identification of the instrument, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: What about constituting your varied terms and conditions?

PN103

MR LANGMEAD: Well as I've already indicated, your Honour, the union had believed that that's what it had done. And if there are errors and/or omissions, well that was not intended and is regretted.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes, but what - - -

PN105

MR LANGMEAD: And will be rectified to the best of its ability.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, but the employer shouldn't have to identify what the deficiencies or the irregularities are, should it?

PN107

MR LANGMEAD: Well your Honour, in the circumstances of the history of this case where the employers, as I've said, have had these documents in a slightly different form for months and months and months. They have been repeatedly asked to identify if they think the union's consolidation in particular of what it said was existing terms and conditions was in any way deficient, they have not done so. And it's a bit rich to come along here months after and say well we can't tell and we don't know and we're not going to go through it line by line. Your Honour, effectively we're being asked or the Commission is being asked to direct us to reconstitute our document, a document which took considerable resources to comply in the first place and will require considerable resources to modify.

PN108

Now, as I understood Mr Gostencnik in reply he was offering that the employers sit down with the union and go through the documents so the parties jointly can identify that which is reflective of existing terms and conditions and that which is not. I am instructed that the union would also be content to do that and obviously it's something which needs to be addressed as quickly as possible so that the parties at least know what they're going to be addressing the Commission about what should be changed and what is reflective.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Gostencnik's proposal in that regard was in relation to the identification of the issues between the parties, but there's no reason of course why that same exercise couldn't achieve the same end in relation to the identification of the new or varied terms and conditions I suppose.

PN110

MR LANGMEAD: I had understood him to be putting it in respect to both matters, your Honour, particularly when he did say they'd be prepared to go through it line by line. Your Honour, can I just say that in relation to the matters at issue we do press the need for a preliminary hearing about that. If it is not so then we are going to be producing mountains of evidence about matters which may never be able to be dealt with by the Commission because they weren't - - -

PN111

THE SENIOR DEPUTY PRESIDENT: But surely the parties ought to make some attempt themselves first of all to identify what the issues are between them through some consultative process. I mean, how long do you anticipate it would take for an arbitration on the issues? I mean you're part way into the hearing by doing that, if not into the hearing by doing that, aren't you?

PN112

MR LANGMEAD: Well your Honour, with respect no because you're confining the issues or defining the issues prior to the hearing so that the parties know what is proper to bring evidence before the Commission about and if proper prepare arguments to the Commission. If the Commission determines that ..... I can't pick a ready example, but if a matter which is claimed by the employers was not at issue in the bargaining period therefore isn't going to be the subject of arbitration for the determination, then we don't have to prepare evidence about it, we don't have to argue about it, it will in my submission considerably potentially truncate the eventual proceedings.

PN113

THE SENIOR DEPUTY PRESIDENT: Do you not - - -

PN114

MR LANGMEAD: Sorry, your Honour. We certainly don't disagree with your Honour's suggestion that the parties should talk about it.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes. Well, how much time do you think would be necessary to allow the parties that opportunity?

PN116

MR LANGMEAD: A week, your Honour?

PN117

THE SENIOR DEPUTY PRESIDENT: Mr Gostencnik, would you agree? 14 days I'd be happy to let it go for. If it wasn't resolved in that period of time then the matter could come back on and we can make a determination about what should be done about identifying the issues.

PN118

MR GOSTENCNIK: Well, as I indicated we're happy to talk to the HSU about those matters, but we don't want to be taken to be consenting to a preliminary hearing about whether or not the matter was - - -

PN119

THE SENIOR DEPUTY PRESIDENT: No, I understand that. I understand that.

PN120

MR GOSTENCNIK: So 14 days would be fine. Sir, might I just say one thing about the form of the award or the draft determination, and I take issue with my friend's submission that it would take an inordinate amount of work. It will not take an inordinate amount of work to simply identify the source of a clause. The purpose of providing that information to us is to allow us to properly prepare a reply. The provisions that are source ought properly be identified so that we can usefully reply to the merits of including such a term in workplace determination. We shouldn't have to go line by line through a document looking for errors. It should as best as is possible be an accurate reflection of the source and amendments made to a provision from that source and the document doesn't do that.

PN121

Provisions which purport to be new provisions are in fact varied provisions. Provisions which are omitted and not identified. And we'd simply ask that the HSU be directed to produce a document which complies. It needn't be a whole
re-write. I'm content if they rectified such errors as are in the document and identified as of correspondence the source of the clause by number.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I'm going to consult my colleagues about the application or the request that's been made in respect to the compliance with the directions and I will bring to their attention to transcript of these proceedings before I make any decision about that. In the meantime I direct the parties to confer with the object of identifying the issues between the parties in the substantive proceedings. And I will list the matter again for mention on the 29th, I think. Yes. In the meantime if my colleagues and I make a determination about the directions then the parties will be notified accordingly.

PN123

MR LANGMEAD: Sorry your Honour, did your Honour say a time for the 29th?

PN124

THE SENIOR DEPUTY PRESIDENT: 10 am?

PN125

MR LANGMEAD: Thank you, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: Mr Langmead, you might - I should have asked you, Mr Gostencnik, did you have any objection to the documents being uplifted for the purpose of the inspection?

PN127

MR GOSTENCNIK: In those circumstances we'd ask that someone from my office be present.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes. Well Mr Langmead, would you make an arrangement with my associate in due course about the, or your instructors can make an arrangement, for the documents to be uplifted and for notification to be given to Mr Gostencnik about the time and place that it's going to happen?

PN129

MR LANGMEAD: Yes, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: All right. Anything else?

PN131

MR LANGMEAD: No sir.

PN132

THE SENIOR DEPUTY PRESIDENT: The matter's adjourned. Thank you.

<ADJOURNED UNTIL TUESDAY 29 JULY 2008 [3.03PM]