C2007/3736, Transcript of Proceedings [2008] AIRCTrans 97 (14 March 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18183-1

COMMISSIONER CARGILL

C2007/3736

cl.21 Sch. 8 - Appl’n to terminate a preserved State agreement
Cochlear Limited
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2007/3736)

SYDNEY

WEDNESDAY, 27 FEBRUARY 2008

Continued from 3/12/2007

Hearing continuing

PN470

THE COMMISSIONER: I think, Mr Hor, you might have been the one who initially asked for the matter to be brought back on.

PN471

MR HOR: Yes, thank you, Commissioner. The purpose of this hearing, and we're very grateful for the Commission's assistance around dates and times being reshuffled in the matter, but actually there are three matters that we seek to have addressed before you. The first relates to two notice to produce that have been served on the applicant Cochlear Limited by the union's solicitors. The second matter relates to some assistance around timetabling of the matter for the purposes of the union's evidence being finalised and presented to us. The final matter that flows from the second matter is hopefully some dates for the hearing of the matter.

PN472

If I could deal, perhaps, Commissioner, with the notice to produce issue and if I could hand up the two notices to produce that I'd seek to be referring to. I don't know if you've seen those documents before.

PN473

THE COMMISSIONER: No, I haven't. I think there was some mention the first time it was on there was some difficulty with the notice to produce which I presume is the 19 November one that might have been about that time.

PN474

MR HOR: Yes, that was the first notice to produce and there's been a subsequent one dated - - -

PN475

THE COMMISSIONER: I think it became subsumed in other matters at the time but there's that and then there's been a later one. Do you want them marked,
Mr Hor, or do we want to just deal with them without - - -

PN476

MR HOR: Just perhaps for information at this time, Commissioner. I intend to deal with a number of concerns and objections we have in relation to the notices. The first relates to a broad commentary on relevance and for those purposes if I could hand up a decision of the Commission in the decision of Commissioner Roberts 2004. If I could turn the Commission's attention - this is just to put in context some of the submissions I'll be making in relation to the notice to produce but if I can the Commission's attention to page 8 of that decision.

PN477

We would submit that Commissioner Roberts has summarised what are the relevant considerations for the Commission in making an assessment of public interest in applications of this sort. While it's recognised that there is some level of discretion in ascertaining what the public interest is, we would suggest that any notices to produce and any evidence that's led in relation to the matter must be directed to the established case law around what the criteria for assessing the public interest are.

PN478

We would argue that the notices to produce, at least in some part, go well beyond what the relevant consideration would be in determining the public interest as set out both in this decision of Commissioner Roberts and the case law generally in relation to termination applications for agreements that are past their nominal expiry date.

PN479

If I could turn, Commissioner, to the first notice to produce and I note that we have complied, we'd say substantially, with the first notice to produce but turning to each of the categories of documents in that first notice to produce, we have provided all relevant documents in relation to paragraph 1 save for two documents over which Cochlear claims legal professional privilege. The specifics of that privilege claim relate to advice that was sought by Cochlear from a law firm to advise employees in relation to questions and concerns those employees had or may have had in relation to the employee collective agreement that was being considered by Cochlear at that point in time.

PN480

Even in that summary, Commissioner, you'll observe that it goes beyond the specifics of what's being sought in paragraph 1 but because of the nature of what is contained in that particular advice, there is some relevance to what's being sought in that first document. We claim privilege over those particular documents, both the provision of that advice and the response to that advice provided to the law firm by Cochlear's officers.

PN481

THE COMMISSIONER: The relationship was between your client and the law firm.

PN482

MR HOR: This is perhaps, Commissioner, where it's not as clear cut a case of legal professional privilege as if the relationship had been, for example, the one between - - -

PN483

THE COMMISSIONER: With your own firm, yes.

PN484

MR HOR: Yes, but it was advice that was sought by Cochlear to be provided to the employees but to be funded by Cochlear but it was very clearly understood that the advice would be provided in summary form by that law firm, a solicitor of that law firm to Cochlear. That advice is ..... which we claim privilege.

PN485

THE COMMISSIONER: Right, okay.

PN486

MR HOR: In relation to the second category, I don't think it's contested that we've complied with that category. The third category of document, and whether it's an issue of drafting or otherwise, Commissioner, it's extremely broad. The way it reads it asks for documentation, specifies on an inclusive but not exhaustive basis that it's interview forms of one on one meeting with workers following the vote against the company proposed agreement. Unless further qualified that could be anything.

PN487

If the intention of what's being sought there, which is the spirit in which we have taken it, is notes of conversations that Cochlear managers have had with individual workers, there has been compliance with that, save for documents that have been created that deal with matters other than the issue of regulation and the termination of the agreement.

PN488

THE COMMISSIONER: For instance, if there has been some discussion about work performance or something like that, they haven't been included but if it's related to the issue of regulation - I think you used that word - then they have been included.

PN489

MR HOR: That's correct, Commissioner. However, what we would press and this goes back to the point of the argument around relevance and it's a matter that we have discussed on previous appearances before you in this matter, but our position is that the application that's before the Commission is an application for termination of an agreement that has passed its nominal expiry date. What may or may not have transpired or might transpire in relation to future regulation is only very tangentially related to the application that is before the Commission because what we would say is that, regardless of what the Commission might decide in relation to that application, the rights of the parties in relation to bargain and everything that flows from that and is associated with that is unaffected by that particular decision.

PN490

It has been made clear that the union's evidence in this matter, as it's been presented to date, seems to focus very heavily on the bargaining that has taken place between the parties, and we don't dispute that that may be a factor that is considered by the Commission but it seems to focus very strongly, and indeed the subsequent notice to produce also goes even further than the initial one, on the point around what happened with the bargaining and the decisions that Cochlear did or didn't make in relation to a proposed collective agreement directly with its employees.

PN491

We would say that that's a statutory right that Cochlear had. It exercised that statutory right. Ultimately, that agreement was not an agreement that was made and as such it's irrelevant to the issue of rights and entitlements of employees who would be covered by that agreement and certainly irrelevant to the issue of a termination application of the agreement that has passed its nominal expiry date.

PN492

If I could turn, Commissioner, to the second notice to produce, we don't dispute the relevance of the first category of documents that are sought there. We are instructed that no such documentation exists and we have made some effort to obtain further information in relation to the negotiation of that particular termination clause. Indeed, the failure by us to obtain relevant documentation led to us advising the union's solicitors that we wouldn't be putting further evidence on in relation to the amendment to the application that we made the last time we were before you but seek to be dealing with that matter in submissions. There's no issue of relevance there but - - -

PN493

THE COMMISSIONER: You just say there is no such documentation.

PN494

MR HOR: There is no such documentation. In relation to the second category, this purportedly arises from a statement in Mr Howitt's statement that I understand is to provide some context around the history of what transpired leading up to the application that's before the Commission.

PN495

The concern we have in relation to this category of documents that have been sought is both the relevance and the potential breadth of this particular category because it's well known and it's not disputed between the parties that Cochlear went through a process of drafting an agreement, to put that directly to its employees and there was quite a lengthy process that was involved and there are any number of documents that go towards various drafts of those particular agreements and the iterations of particular wording and so on. It is quite a significant number of documents that would deal with that particular phase of the exercise.

PN496

If what is being sought in essence is documentation that reflects consideration by management of its particular options, then we'd say that the way in which that has been drafted needs to be reconsidered. I don't wish to put words into my friend's mouth but if that is in fact the intention, then that's perhaps a matter that we can consider but the way it is presently put is significantly broad and we would say oppressive.

PN497

In relation to the third category, our preliminary instructions on that matter are that no such documentation exists and what has been referred to in Mr Howitt's statement is nothing more than a statement of management opinion that was debated, as tends to happen with matters of a strategic nature in industrial relations. However, again potentially the same issues relating to the breadth of what's being sought would apply as well as it did in relation to the second category.

PN498

Commissioner, we don't wish to be obstructive in relation to this but we do wish to very much narrow what is the documents that are being sought, what is the relevance of those for the matter that is before the Commission and we'd certainly want to get this matter dealt with expeditiously to allow the substantive matter to proceed.

PN499

THE COMMISSIONER: Ms Howell.

PN500

MS HOWELL: Commissioner, before I address those matters, can I just thank the Commission and my friend for accommodating my request to reschedule the hearing of these matters. It's much appreciated.

PN501

THE COMMISSIONER: It certainly was no trouble on my part, Ms Howell, and I gather Mr Hor was happy to accommodate. I think it's probably one of these matters that there's got be a bit of give and take on timetabling, et cetera.

PN502

MS HOWELL: I have to say I'm a little confused about the position with respect to the outstanding issues between the parties because it seemed to be said for the respondent that virtually, leaving aside privileged documents, there were no further documents to produce. Notwithstanding that, the respondent was taking points of relevance and points of the breadth of the summonses.

PN503

If it's the case that, irrespective of those issues, there are no further documents to produce, then those issues really do tend to go away but can I first just very briefly say with respect to the decision which is relied upon, the decision of Commissioner Roberts, it's the first time that's been drawn to my attention but we would take no issue with most of the points set out in paragraph 8 and indeed would rely on them in terms of relevance. If the Commission is ultimately called upon to decide whether documents which are requested have the requisite connection with the proceedings, then the test which the Commission is looking at is obviously whether the termination is contrary to the public interest and as Commissioner Roberts notes at points 1 and 2, public interest is a broad concept and most importantly establishing public interest involves the Commission examining all the circumstances of the matter, could scarcely be a broader test, in our submission. That would be the context in which the Commission would be assessing whether documents sought were relevant, whether they are connected in the required sense to all of the circumstances which are relied on by the parties.

PN504

With respect to the first notice to produce and the first paragraph, as I understood what's said on behalf of the respondent, all documents falling within that category, save for documents over which privilege is claimed have been produced. I'm unaware of any documents falling within that category which have been produced.

PN505

THE COMMISSIONER: As I understood it they haven't been produced.

PN506

MS HOWELL: To the extent that there were any, it's said that they have been produced but - - -

PN507

THE COMMISSIONER: I see what you mean. Sorry, I misunderstood you, Ms Howell. You're saying you thought in fact nothing had been produced under 1, sorry.

PN508

MS HOWELL: Yes, Commissioner.

PN509

THE COMMISSIONER: Leave the privilege thing to one side.

PN510

MS HOWELL: Yes. We have received a bundle of documents and as I understand it the bundle is mainly documents falling within point 2, which is minutes of employment consultative committee meetings. So far as I'm aware and I stand to be corrected on this, but there's no documents disclosing consideration by Cochlear of the termination of the agreement, including the impact on employees. To say that we would have expected documents falling within that category is probably an understatement when a company is making a decision of that nature.

PN511

I suppose the usual procedure in those circumstances where we remain of the view that we would expect some documents in that category to exist would be that we would ask for the opportunity to cross-examine a relevant officer of the - or question at least a relevant officer of the respondent as to whether such documents do in fact exist.

PN512

We would respectfully ask that at a convenient time we be given that opportunity because it seems surprising, to say the least, that there would be no documents, leaving aside the privilege documents, that would relate to any consideration by Cochlear of a decision to terminate the agreement. It may be everything is done verbally and without recording but we'd certainly wish to have the opportunity to pursue that because as the union proposes to advance its case, the bona fides of the company are certainly something that we'll be putting at issue in terms of testing Mr Howitt's statement and the statement he makes and testing what has been communicated to the employees at Cochlear about Cochlear's reasons for seeking to terminate the agreement.

PN513

I think by way of example of that and the relevant statements, Commissioner, if the Commission has the statement of Mr Howitt, in paragraph 19 in particular and paragraph 22 some statements are made as to the company's position which we would wish to test. I suppose it's in that context that we really do have some concerns about the total absence of documentation as to Cochlear's reasoning in coming to this decision.

PN514

Likewise, the statement of the employees, which is annexure DH3, I'll just read a couple of relevant passages of that:

PN515

We are now in the situation where we and many of you want to move forward. Above all we want to provide you with the certainty ...(reads)... individual contract containing the substantive conditions of the EBA.

PN516

It's those kind of contentions that the AMWU does take issue with and seek to test and that's really what's behind paragraph 1.

PN517

It may be, Commissioner, that the most convenient way to pursue that is to have someone available at the hearing. We don't necessarily say it has to be done before then, but we would respectfully ask that have that opportunity to pursue the issue of whether there are any further documents.

PN518

As far as the documents in respect of which privilege is claimed, as I understood how that document was identified, it's only been identified for the first time today so it hasn't been previously identified what the document was. As I understand it, there's a document which is T12 to Mr Ayres' statement. It may also be in
Mr Howitt's statement, I'm not sure, but it's a document provided by - it's communications between Cochlear and Haywoods Lawyers concerning Haywoods' evaluation of the comparison between the individual contracts and the Cochlear agreement.

PN519

It's a little unfortunate we only became aware of the identity of the documents today because the first thing that comes to mind is that in this document of 17 June which was provided to employees, as I understand it, and also made available to employees, as I understand it, the substance of the Haywoods' communication is disclosed. As I understand the principles on waiver of privilege, once the substance of the advice is disclosed, then the source documents would no longer attract privilege.

PN520

Unfortunately. Commissioner, because we weren't aware of the precise documents I haven't got the authorities on waiver of privilege so I can't really take that argument much further. I think perhaps the first thing that needs to happen is the dates and identity of the documents to be confirmed by the respondent and then perhaps we could put in a short written submission on the issue of whether privilege has been waived by virtue of the publication of the substance of the points from Haywoods in the document which is T12.

PN521

Those are the issues as we see them, Commissioner, with paragraph 1 which is in short. We'd like to pursue further the question of whether there are any documents at all falling within point 1 other than the document in respect of which privilege is claimed and then the question of whether privilege is in fact waived.

PN522

We have a similar problem or difficulty with compliance with paragraph 3 because, leaving aside issues of the breadth or the wording of the request, what has been produced in respect of that is one document which looks like some kind of questionnaire which is five questions which is filled in in handwriting by someone who it would appear is an employee, just one. Again we would have expected that in a circumstance where there have been a number of interviews in May 2007 with employees there would certainly be more documents so that difficulty occurs with points 1 and 3.

PN523

Those are in short the issues with the first notice to produce.

PN524

THE COMMISSIONER: Just to clarify that point, Ms Howell, there's no issue about if needs be that could be qualified in some sense to restrict it to meetings about the agreement rather than meetings about other - - -

PN525

MS HOWELL: Yes, Commissioner, sorry. That was certainly the intention that it be limited to the issues to do with the termination of the agreement which, as we understand it, was what the meetings discussed.

PN526

MR HOR: If I could just interject just perhaps to assist. I think my friend has mentioned that the meetings were in relation to the termination of the agreement. The meetings were - - -

PN527

THE COMMISSIONER: Mr Hor, I think it says here it's actually, so I understand it, the vote was against the proposed agreement and there was a follow-on process with employees presumably, although not knowing, about well, why was this so, in effect. Where were the sticking points, I suppose.

PN528

MR HOR: That's exactly right, Commissioner. I thought I heard my friend say that the meetings were in relation to the termination of the agreement.

PN529

THE COMMISSIONER: It's probably a slip of the tongue, I suspect.

PN530

MS HOWELL: Yes, I'm sorry, and I thank Mr Hor for that. The issue is really the company's knowledge of the employees. It's the progress of the bargaining which we do say is relevant to the termination of the agreement and again we simply ask why there's only one document apparently pertaining to one employee in that context.

PN531

With respect to the second notice to produce, the respondent has no documents, it says, in respect of point 1 and we can't really say anything further about that. With respect to points 2 and 3 I do take issue with the comments about the scope of the paragraph. The paragraphs are relating to specific assertions made by Mr Howitt in his affidavit and they are referring to specific decisions made by Cochlear management. The first is that Cochlear management decided to negotiate a collective workplace agreement . Well, we're not intending to and I don't think it can be read as asking for all iterations of proposed agreements. What we're after is the decision-making process which Mr Howitt specifically refers to, which is the decision to negotiate a collective agreement. I think
Mr Hor said again there were no documents falling within that category so perhaps it's an arid debate. Is that right?

PN532

MR HOR: They're my instructions, yes.

PN533

THE COMMISSIONER: Presumably you can test that. Mr Howitt presumably will be here for cross-examination.

PN534

MS HOWELL: Yes, and I think the same goes for point 3 that it's narrower than is suggested because it's relating to a decision which is an assessment of the employees' and the employer's interests. Again, as I understand it, it's said that there are no such documents and again in that case the debate about the breadth of the paragraph is probably a little bit superfluous.

PN535

Those are the issues, Commissioner, if it pleases.

PN536

THE COMMISSIONER: Mr Hor, is there anything you want to respond to because you might be able to clarify, perhaps in relation - maybe we can - I don't know where you want to start, with the first first or deal with the second one. Are you content then with the second notice to produce as I understand you are saying in effect there aren't any documents in existence but Mr Howitt would be available, obviously, to be cross-examined and to be dealt with that way.

PN537

MR HOR: We're very happy for Mr Howitt to be cross-examined on the existence of all of these documents.

PN538

THE COMMISSIONER: As to whether there were documents or whether it was an oral agreement, oral decision or whatever.

PN539

MR HOR: It's subject to - and I'm inferring that what my friend is saying is that what is being sought there relates to the decision per se as opposed to actions that flowed from the decision, which we would say could quite easily be read to be documentation relating to a decision. If that's not being pressed, that category of documents, then we say then it falls back to - our instructions at the moment are that there is no documentation relating to the decision.

PN540

THE COMMISSIONER: Perhaps you might need to get some further instructions on this, but in relation to paragraph 3 of the first notice, Ms Howell says that they've received only one document in relation to, it would appear to be, one employee and she apprehends that there should be more than that. I don't know whether perhaps you can get instructions as to maybe - I don't know whether your instructions are there is only one and that's been produced or whether you need to clarify that with someone, whether it's someone who is here today or whether it's something you need to actually clarify.

PN541

MR HOR: We did clarify it because this matter was raised with us in correspondence and clarified as recently as just before attending today and we are instructed that there was only one such document that was maintained and it's still available. Whether there were other documents that were created but were no longer retained, we don't know but the matter has been pressed with each of the production leaders who facilitated those discussions, at least those that are still with the company, in relation to what documents were retained and there was only one such document that was produced.

PN542

What does also exist, Commissioner, and I feel obliged to raise it, is that there was a collation of various views and comments and things like that that was recorded for management consideration. As to whether or not that falls within the scope of this, and I guess perhaps it brings into play the other relevance point, but there are two such documents that exist in that particular category but they are not one on one - they're not direct interview forms of the one on one discussions.

PN543

THE COMMISSIONER: They're more a summary, are they, of what employees provided by way of feedback in those meetings.

PN544

MR HOR: That's correct, and views expressed about those and ideas generated by the company, et cetera. There are two documents that exist of that nature.

PN545

THE COMMISSIONER: I don't know whether Ms Howell needs some - I'm wondering just before she does respond, if I could ask you just briefly while you're on your feet, Mr Hor, the issue about the privileged - or what you say is the privileged document, first of all I suppose it's clarification, if you can, that what you're talking about is the advice that presumably then became what is T12, that advice to employees or is there some other - - -

PN546

MR HOR: It is the same - - -

PN547

THE COMMISSIONER: In other words it's a letter, I gather, or some sort of advice from Haywoods to Cochlear which then has been put into a tabular form for the purpose of that.

PN548

MR HOR: Yes, and in circumstances where - that's already contained in that document and I must confess, Commissioner, I neglected - that particular response had been attached to Mr Ayres' statement but in terms of the document which contained the advice per se we still claim privilege over that document. I'm happy to hand that up, Commissioner.

PN549

THE COMMISSIONER: I'm happy to take it at the moment but I'm just wondering - Ms Howell has suggested that there could be the opportunity for a brief exchange of submissions about whether or not the privilege has in effect been waived by the publication of that document.

PN550

MR HOR: In the circumstances , Commissioner, if I could take some instructions, but I'd probably be seeking not to make an enormous issue of that in the circumstances.

PN551

THE COMMISSIONER: I don't know whether you want to get those instructions now. In fact, I'm wondering whether it might be useful if we just broke for a few minutes for you to get those instructions, Mr Hor, and also,
Ms Howell, I think you perhaps need to get some instructions on the - I've got lost here but I think paragraph 3 of the first notice, I think that's what you're talking about. In other words each of you might need to get some brief instructions so if we just adjourn for five minutes or however long you both need.

<SHORT ADJOURNMENT [2.37PM]
<RESUMED [2.43PM]

PN552

THE COMMISSIONER: Whoever wants to go first.

PN553

MR HOR: Commissioner, I have instructions to hand that document over and we'll do so once we've taken a copy and send it to the solicitors.

PN554

THE COMMISSIONER: We'll leave to do later. We can arrange for a copy to be provided after the hearing, if you'd like, unless you need - you don't need to look at it immediately, do you, Ms Howell?

PN555

MS HOWELL: No, thank you, your Honour .

PN556

THE COMMISSIONER: I think that was all I had to ask you, Mr Hor, wasn't it, in relation to that?

PN557

MR HOR: Yes, I think so.

PN558

THE COMMISSIONER: Yes, Ms Howell.

PN559

MS HOWELL: In respect to the two documents identified as possibly falling within paragraph 3, Commissioner, we would press for production of those documents. The documents, as we understand it, were prepared around about - compiled from information collated in about May 2007 from the interviews with employees. Mr Howitt in his statement at paragraph 19, and I've referred to this already, has said that Cochlear decided that the employees and Cochlear's interests would be better served by discussing employment arrangements directly with employees who understood Cochlear's business better than the AMWU. Then there is also DH3 which is the communication to employees reinforcing that Cochlear viewed the steps of terminating the agreement as being in the interests of the employees.

PN560

We say that the documents identified, which summarise management's knowledge of and assessment of the views of employees at that stage has relevance to the public interest in general as the AMWU is advancing its argument and particularly has relevance in light of those statements which I've referred to which we would wish to test why and how Cochlear could come to the view that something was in the employees' interests in light of the views expressed by the employees. Really we say, in light of Mr Howitt's statement, it couldn't be said that those documents were irrelevant because they really provide the context and the information which would either support those statements or provide a basis to test those statements in any event. If it please the Commission.

PN561

THE COMMISSIONER: Mr Hor, did you want to put anything in response to that?

PN562

MR HOR: Commissioner, I think just on the issue of bona fides or mala fides, again we would press that in circumstances such as this where Cochlear is asserting a statutory right it has, that the issue of bona fides or otherwise isn't pertinent or relevant, not that that's suggesting that there is any mala fides in what it's doing. The particular documents themselves I wouldn't have any claim for privilege overall or anything like that so it really does fall back to the issue of relevance and whether a matter that's explored by the parties and ultimately - I'm repeating the submissions.

PN563

THE COMMISSIONER: I know what you're getting at, Mr Hor. I think probably how best to deal with this at the moment is that I'll direct that those documents be produced to the other side but that doesn't mean that when it actually comes to the crunch, so to speak, during the hearing and submissions that obviously I'll reserve your rights, Mr Hor, to make submissions about their relevance or otherwise to the test that will need to be made. In other words it can be revisited as a matter of whether or not they actually are relevant but I think at this stage it's probably prudent to have then produced and maybe it flows from - or the people are cross-examined about them and they disappear off the scene or whatever. I don't know. I mean, quite often that happens in matters like this. There's a big fight over a particular document which then sort of disappears as far as being relevant, Certainly you can renew any issue about the relevance,
Mr Hor, it's not as though I'll say no that's already been decided.

PN564

I think that probably you'll produce that to Ms Howell's instructing solicitors and the issue about the other document, we'll just arrange for copies - I don't need a copy at the moment but for Ms Howell. I think therefore we're up to points 2 and 3 which are the timetabling. Is that right, Mr Hor?

PN565

MR HOR: That is correct, Commissioner. Can I just make one final point on this, we will in abundant caution recheck with Cochlear managers on the second notice to produce, the narrowed version of the decision taken and reconfirm that there are no documents that do exist. I'm happy to do that.

PN566

THE COMMISSIONER: Yes, if you could. With the, I think it was firstly the timetabling of any further evidence. I think that was the first issue and then the dates for the actual hearing as such.

PN567

MR HOR: That's correct, and if I could say on the second matter and flowing from, Commissioner, your remarks that it's a matter where some give and take may be required, I am actually on leave from 10 to 31 March.

PN568

THE COMMISSIONER: You'll just have to cancel it, Mr Hor, really.

PN569

MS HOWELL: It's an outrage.

PN570

THE COMMISSIONER: Leave should not be allowed.

PN571

MR HOR: I had kept my February - anyway, I won't bore the Commission - - -

PN572

THE COMMISSIONER: It's all right. I think we can - we all have to take leave and I don't think it would be suggested you shouldn't have leave.

PN573

MR HOR: Thank you, Commissioner. What I had proposed, and we have been served with the witness statement of Prof McCallum. That was received by us last week. We understand that there is one further expert witness statement.

PN574

THE COMMISSIONER: There was mention of another person. By the way, just while you mention that, there's an issue - I suppose I should declare - I don't know whether it's - I suppose it is an interest and I don't think there's a conflict, but I notice that Prof McCallum's evidence is largely going to a report that's produced by the workplace research centre at the University of Sydney. I just wish it to be noted that I'm a member of the advisory board to the workplace research centre. It's an honorary position. I can assure the parties I have had nothing to do with either the commissioning of the research, anything to do with it but it's just I want it to be noted that I am actually on that board along with what seems to be a large quantity of other persons from all walks of life in this Commission, the state Commission and various other sort of employer bodies, union bodies, university bodies, et cetera, but I just want it to be noted. I don't know whether anyone
has - - -

PN575

MR HOR: I don't anticipate that would be any difficulty. I think with someone like Prof McCallum giving evidence in any proceedings we're all conflicted or interested in some way or the other, including myself.

PN576

THE COMMISSIONER: We won't ask you to withdraw yourself, Mr Hor.

PN577

MR HOR: The issue of the balance of the witness statements I'm a little unclear on where the respondent is with the employees' statements that it had indicated it would provide, so perhaps we could get some comment on it.

PN578

THE COMMISSIONER: Yes, certainly. Ms Howell.

PN579

MS HOWELL: Commissioner, we have made some progress in compiling all of our evidence. Because of logistical issues we'd like to give ourselves as much time as is possible consistent with giving the respondent adequate time to reply. I'm just wondering if it would be possible to have a look at dates first and then perhaps work back how much time we can afford to be given for the rest of the evidence.

PN580

THE COMMISSIONER: I think, Mr Hor, you said you're off until the end of March in effect.

PN581

MR HOR: That's correct, Commissioner. I do have an arbitration in Melbourne in the Commission on 10 and 11 April but other than that I'm relatively clear.

PN582

MS HOWELL: I do, unfortunately, have a hearing going from 1 April to 8 April and 17 and 18 April. Apart from that - - -

PN583

THE COMMISSIONER: Maybe we should just briefly go off the record at the moment for that sort of discussion. Are you both happy with that?

PN584

MR HOR: Yes.

PN585

THE COMMISSIONER: We'll just go off the record.

<OFF THE RECORD

PN586

THE COMMISSIONER: I'm sure the parties will correct me if I'm wrong, but as I understand it Ms Howell will have - evidence that the union will be relying upon will be provided to Cochlear's solicitors by no later than close of business on 31 March and further to that she'll do her best to ensure that as it is available that material will in fact be provided on an ongoing basis to the solicitors. Any evidence in reply will be provided to the union's solicitors by close of business on 14 April and the matter will be listed for hearing commencing at 10 am on 21 April and the days of the 22nd, 23rd and 24th will be set aside although it may not be necessary to utilise all that time.

PN587

We'll obviously do a notice of listing for the hearing but I won't issue any formal directions. If there's some difficulty about the dates, we can list it maybe by telephone conference at short notice to clarify anything. Is there anything further from your point, Mr Hor?

PN588

MR HOR: Nothing from me, Commissioner, thank you.

PN589

THE COMMISSIONER: Ms Howell?

PN590

MS HOWELL: One matter, Commissioner. I just remembered an argument as to whether the public interest test applies was foreshadowed. If that is going to be pursued I wonder if it would be advisable to just have the parties file outlines of submissions in advance of the hearing so that we're not dealing with that on the run. I'm sure we can arrange that between the parties but it's probably a good idea.

PN591

THE COMMISSIONER: If you can it's probably helpful. It will probably cut down on the day, particularly as I think, Mr Hor, you've indicated there's not going to be evidence as such put on about the meaning of that - or the negotiation of that clause, I should say, in the state agreement, the 2005, I think, isn't it, agreement?

PN592

MR HOR: That's correct, Commissioner.

PN593

THE COMMISSIONER: I've lost track, 5, 6, whatever it was. Yes, if you could and I'll get you to just undertake between yourselves to provide that and work out a timetable between yourselves, thank you. Anything else? In that case the matter is adjourned until 21 April.

<ADJOURNED UNTIL MONDAY 21 APRIL 2008 [3.00PM]