B2013/589, Transcript of Proceedings [2013] FWCTrans 248 (4 April 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1047705-1

COMMISSIONER CARGILL

B2013/589

s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
and
ResMed Limited
(B2013/589)





Sydney

9.59AM, FRIDAY, 22 MARCH 2013

Continued from 14/02/2013

PN231

THE COMMISSIONER: I think we have been on the record before and I did take appearances so I don’t need to again. Is there anything we need to deal with before we start with your witnesses, Mr Walkaden?

PN232

MR WALKADEN: I think there is Commissioner. I provided a copy of our outline of submissions to your associate and to my friend at about 6.15 yesterday afternoon and I do apologise for the short delay in preparing and filing of those submissions. Have you had a chance to read those submissions, Commissioner?

PN233

THE COMMISSIONER: Scanned them, Mr Walkaden.

PN234

MR WALKADEN: There’s only one issue that I seek to raise at this point in time and this is a submission that we make from paragraph 49-56 of those submissions.

PN235

THE COMMISSIONER: Yes.

PN236

MR WALKADEN: Those paragraphs put my friend and the commission on notice but there appears to be a dispute between the parties as to which occupations and which groups or subgroups of employees fall within a nominated group. We say the employees that we set out on paragraph 45 of our submissions; we say those employees clearly fall within the nominated group. We say at this stage it’s unclear whether the category of employees listed at paragraph 46 of our submissions fall within a nominated group or not and at paragraph 47 of our submissions we say it appears that ResMed have included in the list that’s been provided to the commission, the employees which are set out at paragraph 47 of our submissions.

PN237

We say those employees at paragraph 47 do not properly fall within the nominated group and we say there’s doubt as to whether the employees at paragraph 46 of our submissions fall within a nominated group and we say this contest about whether certain employees fall within the group can be dealt with in two ways. We can have the argument about whether certain employees are covered by the award and have the argument about whether certain employees are technical employees, have the argument about whether certain employees are supervisors, co-ordinators or trainers. That’s an argument we can have and we can deal with that argument based upon the material that’s been filed and upon submissions that my friend and myself make in the closing of this particular application. That’s the first way we can deal with it.

PN238

It goes without saying that that would be an incredibly technical contest. It goes without saying that there would be some doubt we say, at the end of that process whether certain employees fall within a nominated group or not and that’s particularly evident as I point out at paragraph 58 of my submissions, upon what Mr Surra says in his witness statement which is there is a classification structure which is found in the award, the C structure which would be well known to the Commissioner, and it appears that for some of the disputed employees at least, ResMed - which is their right – classify the employees according to a completely different structure. So we can have the debate and if needs be, we’re happy to have that debate but what we do seek and we set this out at paragraph 49 and onwards of our submissions, is that to remove any doubt and to remove the need for these proceedings to be dealt with in such a fashion to ensure that the proceedings can be disposed of in an efficient way, we do seek to amend our application pursuant to section 586 (a) of the Fair Work Act, to give greater clarity to the employees who we not only say, properly fall within a nominated group but reflect our original intention.

PN239

The important point to appreciate, Commissioner is that it’s the union for the purpose of this application who nominates the group and we say that we did not contemplate that the employees and the quality assurance and regulatory insurance work group, the employees in the modelling group and the technical support engineers within the manufacturing engineering work group would fall within the group. In basic terms we sought to nominate the group as being production operators and trade based employees, fitters, electricians et cetera. So we do make that application. We don’t imagine that application will be able to be dealt with at the commencement of these proceedings. My friend was only alerted to that particular application when he received my submissions last night but I just put my friend and the Commissioner on notice that that is an application we seek to make.

PN240

We do think that would assist in efficiently dealing with what are the key issues in contest. The issues about whether there’s a majority, the issues about whether the group either the original group or the amended group is fairly chosen and the argument my friend raises about whether the employer has not yet agreed to bargain. There will still be issues that are contested regardless of the issue of amending the application. So don’t suppose we can with that today but I just put you and my friend on notice that that is an application that we seek and to ensure that the proceedings are dealt with efficiently. It may be that the company has a view about that and I can see my friend is vigorously nodding his head. So I assume the company will oppose that application and we say that if my friend has instructions to oppose this particular application to amend, we say let’s deal with that on 4^th and 5 April after we hear the evidence particularly of Mr Surra and Mr Cameron.

PN241

THE COMMISSIONER: Mr Neddleton?

PN242

MR NEDDLETON: Commissioner, can I just say at the outset that we are put to substantial prejudice as result of the position my friend has just put. We’ve come here today ready to proceed on the basis of the application that was filed in January, nearly two months ago and indeed as the Commissioner knows, there has been court program set in accordance with that application in order that that application can be dealt with. Last night we received the union’s submissions at about 6.30 and I started reading them at about seven or 7.30 and in those submissions, the union hasn’t made any application. It appears that the union is foreshadowing making an application. It’s made a submission which is at paragraph 49 of a 15 page document, containing 97 paragraphs that we looked at last night and saw for the first time last night; we’ve had absolutely no notice of that previously.

PN243

The matter has been on foot for nearly two months now. As I say we received notice of it about last night. It fundamentally changes the application my friend is contemplating. It fundamentally changes the group that has been put forward by the union and that we’ve all been working towards in relation to these proceedings. It fundamentally changes the nature of the group. It’s a different application my friend is foreshadowing and if he wants to make that application then he should do so in the proper way and put on an application to amend the original application, serve it on us in the proper way so that we have a proper opportunity to consider it and then it can be dealt with in the usual way with the parties having had a proper opportunity for it to be considered. We’ve had no opportunity at all to consider the points my friend has just raised today.

PN244

I flagged them with the company about 8 o’clock or 8.30 or so last night. We met this morning to have an initial discussion. The company is not in a position at this stage to consider what these changes might mean for its operations. As I say, we’re ready to proceed with the application as it was originally filed two months ago and we can do that but if my friend is foreshadowing an application that that original application be amended, then the proceedings today should be adjourned and my friend should put on that application so that we all know what group we’re talking about in relation to the considerations under section 237. I should say, Commissioner that ResMed has gone to great time and cost to put evidence on to meet the application in the way that it was originally framed and having in mind the group that was originally nominated by the union.

PN245

Now the union has seen the company evidence and wants to fundamentally change the group that is the subject of these proceedings. As I say, the company has had no notice of that. Commissioner, can I put that too in this context that prior to this application being made there was an exchange of correspondence attached to the application and in that exchange of correspondence the company raised it with the union, the question of description of the group:

PN246

Can you please tell us what the work group is that you would like covered by this proposed agreement that you are proposing.

PN247

And the company got no response to that until a letter was received late January - the groups by reference to these two fields in the manufacturing award. The company wrote again and said:

PN248

Can you tell us by reference to the work groups as we understand them and the employees understand them at our work site and can you tell us what the groups are by reference to the way in which we’ve structured our work groups at the work site to represent and reflect our operations there?

PN249

No response to that letter. We then got an application. The application describes the group that they’ve nominated by reference to fields in the award. The matter was first listed before yourself, Commissioner on 14 February and on that occasion we said there will be an issue about the group, whether it’s fairly chosen. We indicated also that we’d sought clarification about the work group in the prior correspondence and then following those proceedings, there’s been a detailed program of evidence agreed between the parties under which the union has filed evidence. We’ve filed evidence, the union has filed evidence in reply all on the basis of the work group described in that original application and we’re ready to go today to deal with that original application. We also had a telephone directions hearing as you know, Commissioner, Tuesday of this week.

PN250

There was no notice given at those telephone directions, that the nature of the group might be changed. My submission is that this application my friend is foreshadowing, it hasn’t even been made yet, he’s foreshadowing it. It should have been notified to us a week or so after receiving our evidence. We should have received correspondence indicating that the union was reconsidering the group and scope of the group. There should have been an amended application put on and we could have dealt with it then but to receive it last night, tucked in paragraph 49 of my friends submissions, it’s not an application, it’s just a submission. At the eleventh hour where we’re all set to deal with a hearing today based on the application that was filed on 31 January I think it was, late January, just gives us no opportunity to consider the issues that it raises but it does raise issues that are very important issues and in the time that we have had to think about it, we’d need more time to think about it, it raises our submission fundamental issues because it’s an entirely different group that my friend is now talking about.

PN251

It doesn’t reflect for example, the group that’s on the list that was handed up by the company to you and there are a number of other issues that mean the whole evidence and the whole case would need to be looked at indeed. It appears to us that the case may be an entirely different case and if my friend wants to put on an application as he says to amend or correct the application, he should do that in the proper way. We should have an opportunity to respond because it may well be that the amendment he seeks goes beyond 586, the power under which these amendments can be granted. In our view, he’s seeking really to substitute one case for another case and we need an opportunity to be heard on that if that’s what my friend wants to do. As to the issues about technical issues as to whether employees come within the group or not (indistinct) certain trade fields and so on, again it’s the first time my friend has raised that by way of submissions at about 6.30 last night.

PN252

I’m not sure it’s the case that those issues could be dealt with on the basis of the evidence that’s already been filed. I think the appropriate course, Commissioner, in all the circumstances if I can make this submission, is that my friend should confirm or otherwise and he seems to be confirming that he intends making an application to vary the original application. He should put that on in precise terms so we properly understand the group. Indeed, Commissioner if I could make this submission that the paragraph he’s relying on in his submissions now as to the group, if you go to paragraph 49 of the union submissions, the AMWU seeks to deal with this contest by formally applying to amend the application. The amendment sought is to replace the group who will be covered by the proposed agreement with the following group.

PN253

He’s seeking to completely replace the group we’ve all been focussing on with a different group and that raises fundamental issues about this application. We only received notice about it last night. Had we received an answer to our correspondence in January, when we asked the union please tell us the work group you’re focussing on, in terms of paragraph 49, then that might have been something we could have considered at the time and it might have saved a lot of time, cost and inconvenience particularly for the company. Where we stand at the moment, Commissioner is we’re ready to proceed in relation to the application that’s been filed in January. As I say, ResMed has gone to a lot of time, effort and trouble to prepare for the hearing on that basis, consistent also with the directions hearing as recently as Tuesday of this week. If my friend wants to put on an application to amend his original application he should do so in the proper way, not by way of a submission in the middle of 15 page document the night before a hearing and we should be given a proper opportunity to consider that application and that could be dealt with for example on the next hearing date. The date is already set, if the commission pleases.

PN254

THE COMMISSIONER: Thanks Mr Neddleton. Mr Walkaden, did you want to respond at the moment?

PN255

MR WALKADEN: I do. My friend makes the point that the matters we have raised in our submission last night seeks to change the group. As I indicated at the commencement of the proceedings, we don’t seek to change the group. We say there is a contest between the parties as to who falls within the group and the important issue to appreciate is, the union doesn’t know exactly which employees are on the employer list and that is because the agreed program provided that the union would hand up our petition to the commission on a confidential basis and likewise the company would hand up their list on a confidential basis. It’s only if they’re reading the evidence of Mr Surra and Mr Cameron that we have been able to (indistinct) with the kind of employees who might be on the employer list. We don’t’ know for instance whether on the employer list the team leaders and the manufacturing supervisors of the various production operators are included on the list.

PN256

We don’t know whether the line leaders of the production operators are included upon the employer list and it appears that there are these additional groups of workers who we say don’t fall within the group. It appears that those employees have been included upon the list. We say if there’s a contest which is had between the parties about which employees fall into the group or not, we say we will be resolved in our favour but what we do seek to do is we seek to describe the group in a different way. We don’t seek to change the group. We seek to describe the group in a different way and yes, that group has been described in a way that appears to have been the company’s preference in their correspondence in January of 2013 but the important point to note there, Commissioner is that whilst the union has some knowledge of the company’s operations, the company doesn’t have the same level of intimate knowledge that Mr Cameron and Mr Surra has and in our view at least, describing workers by way of award coverage gives greater clarity than seeking to coin the term that a particular enterprise uses. You would know, Commissioner that a production operator at ResMed may do the same job somewhere else but be called something completely different.

PN257

You would know that a team leader at ResMed may do the same job as another employee at a different manufacturing company but be called something else and so on and so forth. So we thought in the first instance not knowing precisely what the labels that ResMed used to describe the employees, what labels the company used to describe the groups on which those employees fall within, that the award reference to the various vocational fields in the award would give greater clarity. We make the concession that through reading Mr Surra and Mr Cameron’s evidence there is greater clarity by describing the employees by reference to the work group and the label that ResMed ascribes to those particular employees. So it’s not a situation where the amendment is sought to change the nature of the application but the three grounds of opposition that the company seeks to contest the application on are still open to the company.

PN258

There still is a debate about fairly chosen. There still is a debate about whether you can rely upon the AMWU petition and there still is a debate about whether the company has agreed to bargain or otherwise. So we say it’s not a case that we’re seeking to change the nature of the application. We aren’t seeking to change the group. We’re simply describing it in a way which we think gives greater clarity and removes the need for an argument about whether particular employees fall within a certain stream of the award and as I said at the outset, it’s our application, these provisions allow the applicant to define the group and we did not intend that the group would be as broad as ResMed would say. The comments I made at the outset were that we do make the application but we say this application should be dealt with in the closing submissions which should be on 5 April 2013 and those are the submissions we have to make on that particular point, Commissioner.

PN259

THE COMMISSIONER: So you are intending to formally apply to amend.

PN260

MR WALKADEN: Yes.

PN261

THE COMMISSIONER: I just wanted to clarify, Mr Walkaden.

PN262

MR WALKADEN: Yes, we say that that contest about whose in and whose out, we do make the amendment and at paragraph 51 of my submissions I note a decision and the majority support the determination involving the AMWU and Blue Scope Steel where the issue arose in those proceedings about who was in the group or not. There was a debate about that and in that particular decision the Commissioner relied upon section 586 (a) of the Fair Work Act to narrow the particular group in those circumstances. So we do make the application. We say that this is a matter that should be dealt with and referred to section 577 and 578 of the Fair Work Act. We don’t suggest and we haven’t suggested that this matter should be determined today because we accept that my friend was only alerted to this issue last night but we simply put the commission on notice and put my friend on notice that we make the application and we suggest that that application be dealt with, given as opposition to as it appears, in the closing submissions of this particular matter.

PN263

THE COMMISSIONER: I think part of Mr Neddleton’s position is he doesn’t - at the moment it might be opposed but whether it might be down the track he doesn’t know because he hasn’t had a full chance to get instructions. I think that’s the thing isn’t’ it Mr Neddleton? You haven’t got the application and - - -

PN264

MR NEDDLETON: My friend is really foreshadowing I think, an application that hasn’t yet been made and we haven’t seen it.

PN265

THE COMMISSIONER: But I think you could probably take it, Mr Neddleton that he’s foreshadowed that it will be in these terms. I appreciate you only got it last night. I’m not suggesting but he’s foreshadowed.

PN266

MR NEDDLETON: Commissioner, I’m not sure what the terms are because there seems to be – my friend indicated in his submissions that they sought to describe them by reference to the award to give greater clarity.

PN267

THE COMMISSIONER: To the work groups I think, isn’t it?

PN268

MR WALKADEN: Correct.

PN269

THE COMMISSIONER: As I understand it, the initial application was a broader thing about its employees who work at the site who are covered by the award and engaged in either the trade field or the engineering manufacturing field. That was the initial application and as I understand it, what the union is seeking to do is to, I suppose, restrict to some extent or I don’t know. I don’t know how one would describe it but - - -

PN270

MR NEDDLETON: I don’t know either Commissioner.

PN271

THE COMMISSIONER: - - -nevertheless to people covered by the award and engaged as production operators in three specific work groups and the warehouse operators and also there’s the METS group as well. So I think what they’re saying as I understand it is it’s going to be particularised by referring to work groups that have come out of the evidence of the company. That’s what I understand is what they’re seeking.

PN272

MR NEDDLETON: It won’t be clear I think Commissioner until we see the words and can we can look at it and get instructions and you’re quite right, my friend sought to define the nominator group by reference to those award fields. He says to give greater clarity but what has now happened is that the union is taking issue with the people that the company has included within those fields and only given us notice of that last night.

PN273

THE COMMISSIONER: To be fair Mr Neddleton, I remember there was some discussion when the matter was on in February, I think and we were in conference of some discussion between the parties about the fact that there could be issues about who might be included in the employers list and I think there was some debate back and forth about a certain - classification isn’t the right word but certain types of employees who may be included that the union said they may wish some opportunity to have some input into that at some point. In other words there wasn’t total agreement on there would be this category of employees and there would be no debate about who was in and who was out. I think it had been foreshadowed that there could be an issue on that.

PN274

MR NEDDLETON: Commissioner, there was some discussion about that and then we all proceeded on the basis of the deal to nominate it in the award. We’ve put our evidence on. My friend is it appears; now raising some issue about who is within the group. The time to have done that though was two weeks ago after they received our evidence and had an opportunity to look at it over the week, not now.

PN275

THE COMMISSIONER: Because I think it did come up as I understand it, out of the evidence that you’ve put on for Mr Cameron and Mr Surra, I think is what’s been said.

PN276

MR NEDDLETON: Correct.

PN277

THE COMMISSIONER: Could I just ask Mr Neddleton – sorry did I chop you off. I think you were about to say something else.

PN278

MR NEDDLETON: The only submission I make Commissioner, is my friend says that they’re not changing the group but in our submission it appears to be and we won’t know clearly what they’re doing until we see the application but the submissions talk about replacing the group with another group and effectively excising people that had been included in the original group. In our preliminary view, that amounts to changing a group but we really won’t know what we’re dealing with until we see the application and I think my friend has foreshadowed making that application. As I say, today should be adjourned so that we have an opportunity to consider that.

PN279

THE COMMISSIONER: Well, Mr Neddleton, could I ask and I realise you might need to get some instructions on this but I’m just wondering whether and obviously Mr Walkaden, you wish to put your application to amend, then I think we better do it formally and serve it on the other side regardless of how that’s dealt with but Mr Neddleton, I was just going to ask you rather than throwing today away, the unions evidence by and large goes to the collection of the petition and other things that – in other words doesn’t go to this issue directly of the group. I’m just hesitant to throw away a day’s hearing. Everyone’s gone to trouble, expense et cetera to have this, whether the union evidence as much as we can deal with it could be dealt with today, so we haven’t thrown that away. Then we can deal with this issue about the amendment and whether or not there is power to amend and what your position is on the amendment et cetera could be dealt with then. I know Mr Walkaden is saying after all the evidence but it might need to be dealt with before and if you need a break you don’t have to do it by way of notes.

PN280

MR NEDDLETON: I might do that. We might have a short break to discuss it. Can I just indicate though Commissioner, that my initial view is that – and this is the difficulty - we haven’t had an opportunity to consider the full implications of what my friend is now seeking to do but we believe there are issues in relation to not just the issue about did the majority want to bargain which is the evidence we could deal with today. There could be issues about that as well as the fairly chosen issue. We’re talking about a completely different group and for example employees that have signed the union petition may be in a group that my friend now seeks to excise from the group that we’ve handed up. There are complications here that we just need to think through. If I get some instructions, then we can come back to you on that point. We’re conscious also that people are here but we just haven’t had a proper opportunity to consider the implications of the change that my friend is now seeking to raise. Indeed we may wish to cross examine about the group and the nature of the group, the witnesses today. That’s something that couldn’t properly be dealt with until we know what the group is.

PN281

THE COMMISSIONER: Yes I realise that. That’s why I was just trying to see whether it’s possible to and you’re the only one who knows what your cross examination would be. As I say, I’d be hesitant to throw away the whole day but we’ll see what happens.

PN282

MR WALKADEN: Can I be heard. My friend responded to what I said. Can I just draw your attention Commissioner, to the agreed program of procedure. Have you got that with you?

PN283

THE COMMISSIONER: Probably somewhere here Mr Walkaden, yes.

PN284

MR WALKADEN: This is a document Commissioner, you’d recall arose from the first occasion that we were before you in about February or so and point 6 says this:

PN285

The reason that AMWU are free to make any submission they consider appropriate including about the list or the original petition goes on to provide two exceptions

PN286

It’s simply not the case that these proceedings that the union shackled to the list submitted by the company. If we take the view that there are employees who don’t properly fall within the group, we are entitled, in the first instance to make a submission about that and say that that person, that the company says falls within the group doesn’t fall within the group. That’s a submission that we’re entirely within our rights in making and indicating my outline, that’s a submission that we intend to press. I simply suggest that the most efficient way to deal with that issue is to amend the application. So if my friend is making a suggestion that the union cannot challenge the list submitted by the company, that’s wrong. That is an incorrect suggestion and not what was agreed between the parties. We are content to take your suggestion and formally make the application, put my friend in no doubt that if an amendment is sought, it will be done so on Monday morning and the group will be in the same terms as is set out at paragraph 49 of our outline of submissions. So he shouldn’t be worried about who’s going to be in that amended group. The amended group will be as per paragraph 49 of our submissions. We have never suggested that this is a matter that should be dealt with at the outset. I indicated this morning I was raising the issue with the commission and with my friend and obviously my friend was well alert to this particular issue so we’re not seeking for the matter to be dealt with today. We raised it at the outset of these proceedings. My friend needs to get some instructions and I’m happy to have a short adjournment and we can reconvene.

PN287

THE COMMISSIONER: But Mr Walkaden you realise that Mr Neddleton is saying that if he may wish to cross examine some of your witnesses about issues that may come out of this foreshadowed amendment.

PN288

MR WALKADEN: I think my friend indicated he wanted some time to consider his position.

PN289

THE COMMISSIONER: Well I’ve suggested it might be useful for him rather than - - -

PN290

MR WALKADEN: And I’m just indicating that I’m content with that course, Commissioner.

PN291

THE COMMISSIONER: Sorry, did you want to say something else Mr Neddleton before – so we’ll just adjourn and you take whatever time you need and if somebody could let my associate know when you’re ready to reconvene.

<SHORT ADJOURNMENT [10.35AM]
<RESUMED [11.18AM]

PN292

THE COMMISSIONER: Yes Mr Neddleton?

PN293

MR NEDDLETON: Thanks very much. Commissioner, in terms of where we left off when we were last on the record, for our part in relation to this matter and I’m not sure if my friend wants to make some other application in relation to this or not, it’s really a matter for my friend but we did have some discussion and it’s a matter for my friend as to whether he makes any application. For our part we’d simply say we don’t want to delay these proceedings. They’ve been on for some time and the commission I think will be conscious that the company has certainly met the time line in relation to the documents and the evidence that has needed to be filed. We’ve progressed this matter quickly and in accordance with the program including filing submissions and so on. We don’t want to delay the matter but we were only informed, as you know, last night of this issue. I won’t rehash all that old ground. We think though the best way for the matter to be dealt with quickly and fairly is that if my friend does file an application in a formal way, in writing and provides that to us, I think he indicated on Monday to amend the application just so that we can consider that application and consider whether any other or further evidence is required. It will affect the cross examination of witnesses about the group and the scope and size of the group and we just need an opportunity to consider all of those things and indeed whether or not we consent to or oppose the application to amend. There might need to be arrangements made in relation to that but we won’t be able to deal with all of those things until we see it. I appreciate my friends indication that it’s in accordance with the submission but we would like to see the document and we would like to get proper instructions from ResMed and the relevant decision makers there about that in light of the matters I’ve mentioned about evidence and cross examination that are likely to come into the discussion about any application to amend and just reserve our rights generally in relation to any other such application to amend that my friend has foreshadowed and on that basis we’d ask that today be adjourned. We still have the 4^th and the 5^th if the commission please.

PN294

THE COMMISSIONER: On that basis Mr Neddleton, we presumably need another day at some point.

PN295

MR NEDDLETON: We may well do, Commissioner but there may be - - -

PN296

THE COMMISSIONER: I mean in place of today in effect because - - -

PN297

MR NEDDLETON: In place of today, that’s likely. I’m just thinking though, the application my friend puts on is likely to affect the fairly chosen argument. Some of the evidence that’s already on for example is not likely to be relevant to the group my friend is now contemplating. Whether that means more time will be needed or not because I’m not sure that all the time that’s been allocated will be needed given the change in the description of the group.

PN298

THE COMMISSIONER: Okay thank you.

PN299

MR WALKADEN: Can I be heard?

PN300

THE COMMISSIONER: Yes of course Mr Walkaden, I was just about to ask you.

PN301

MR WALKADEN: I always like to get on the front foot, Commissioner you know that. Commissioner, I’ve taken on board the comments that my friend made today and as I’ve indicated there is obviously a debate about which employees fall within the nominated group and I’ve taken you through those particular issues and I indicated that we were content to put the gloves on and deal with that particular debate and then the alternative that the commission should allow the application to be amended. I don’t criticise my friend for the way that the matter has been handled. I concur with his position that the company have met the various timelines that had been agreed between the parties but what the union seeks to do is determine whether the group of employees who we wish to bargain for want to bargain and there is other matters that flow from that.

PN302

We don’t want to be bogged down in a debate about whether certain workers fall within the group or not and the point I make is that an amended application, we say there is power to amend the application. My friend made the point at the outset of today that he’d consider his position but took the view there may not be power for you to amend the application. So there’s an argument about that and it then would be an argument by an amended application about whether as a matter of discretion you should allow the application to be amended. So we say there’s a host of technical arguments about award coverage, about classification, about what the extent of section 586 (a) of the Fair Work Act and whether if you’re satisfied there is power, whether in fact you exercise your discretion to amend the application and the point we take is that it appears that we can’t advance either matter, either the original application or the amended application that we’re foreshadowing today and there would be some further matters that the parties would need to turn their minds to and ultimately it might be the case that after dealing with whether for instance the employees in the modelling group are technical workers which is what we say or whether they’re trade employees which is apparently what the company says.

PN303

After dealing with those sorts of issues we’re really getting away from the fact of whether the group that we seek to bargain for, wants to bargain and to officially deal with these proceedings, we’ve taken on board the comments that my friend has made and if the unions position that we seek to discontinue the application and we put my friend and yourself, Commissioner as a member of the relevant panel on notice that the union will file a fresh application on Monday morning and that fresh application will allow the company to consider the application; it will allow the company to see which employees fall within the group. That group will not be in the same terms as the group which has been nominated by the union on the original application. We say there would be greater clarity as to who is in and who is out and will save the argument about whether certain people are technical workers, whether certain people are supervisors and it will allow the fundamental questions that the commission needs to be satisfied of. Whether a majority of employees wish to bargain, from a group nominated by the applicant and whether the application is fairly chosen. So that’s what we intend to do. We intend to formally discontinue the application. I put you on notice and my friend on notice which I have done so in our brief discussion that the union will file a fresh application on Monday morning.

PN304

THE COMMISSIONER: Thank you Mr Walkaden. Mr Neddleton, did you have anything you wish to say in response?

PN305

MR NEDDLETON: Just to say if my friend ends up filing some application to discontinue, I’d just indicate we’re disappointed about that given the time and energy and effort that’s gone into this matter and the expense and inconvenience caused in putting on evidence. As I say, ResMed has progressed this matter in accordance with the program and in a very positive and cooperative fashion, met all the timelines right up until this issue just having been raised last night. So it’s really a matter for my friend as to what he what he wants to do with his application. Commissioner, it seems clear the matter can’t proceed today given what my friend has said and in any event on the basis of the application we made just before my friend was speaking, that that would be the case. Other than, Commissioner, that if my friend makes any such application, we just reserve our rights generally including in relation to costs, if the commission please.

PN306

THE COMMISSIONER: I must say I don’t know whether you actually have to – I can just take an application that you’re going to discontinue from you Mr Walkaden. I suppose you could put in a notice of - - -

PN307

MR WALKADEN: I’m happy to sign a notice Commissioner.

PN308

THE COMMISSIONER: You might put in a notice of discontinuance to perhaps formally do it. It’s a bit uncertain that the notice of discontinuance in the legislation is really sort of pointed at unfair dismissal claims and the like rather than these types of claims but obviously it might be useful if you could perhaps put in a notice and I go on long leave from Monday. I don’t actually Mr Neddleton but maybe I should make an application this afternoon to go on extended leave.

PN309

MR NEDDLETON: I strongly advise that Commissioner.

PN310

THE COMMISSIONER: Well in that case if the client is going to be withdrawn I can’t force you to stay here Mr Walkaden and I’ll just adjourn it generally.

<ADJOURNED INDEFINITELY [11.28AM]