C2013/1321, Transcript of Proceedings [2013] FWCTrans 820 (29 October 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1049048-1

COMMISSIONER JOHNS

C2013/1321

s.739 - Application to deal with a dispute

United Voice
and
Ambulance Victoria
(C2013/1321)
Ambulance Victoria Enterprise Agreement 2009

(ODN AG2009/17927)
[AE872116 Print PR990584]]




Melbourne

9.46AM, MONDAY, 21 OCTOBER 2013

PN1

THE COMMISSIONER: Yes. Appearances, please.

PN2

MR C. BROADBENT: Yes. If it pleases, Colin Broadbent. I appear on behalf of Ambulance Victoria. I'm sure you recall - - -

PN3

THE COMMISSIONER: You've already been given permission.

PN4

MR BROADBENT: - - - I was granted leave. Yes.

PN5

THE COMMISSIONER: Yes, indeed, Mr Broadbent. Mr Kemppi.

PN6

MR S. KEMPPI: And Kemppi, first initial S, appearing for the applicant.

PN7

THE COMMISSIONER: Yes. All right. Well, thank you very much. I note that the material has been filed in accordance with the directions and I've read those. Mr Broadbent.

PN8

MR BROADBENT: Yes. If I could perhaps call Allison Peters just to confirm her statement.

PN9

THE COMMISSIONER: Yes.

PN10

THE ASSOCIATE: Please state your full name and address.

PN11

MS BRIGGS: Allison Janet Peters, (address supplied).

<ALLISON JANET PETERS, AFFIRMED [9.47AM]

PN12

THE COMMISSIONER: Thank you. Mr Broadbent.

<EXAMINATION-IN-CHIEF BY MR BROADBENT [9.47AM]

PN13

MR BROADBENT: Ms Peters, you produced a witness statement. Do you have a copy of that in front of you?---Yes, I do.

PN14

Could you just look through that and confirm to the tribunal that that is your statement and that the contents are true?---That's correct.

PN15

I don't have any further questions for Ms Peters unless there's anything further that we need to address in relation to her statement, so if I could tender that.

PN16

THE COMMISSIONER: Yes. We'll mark the statement from Allison Peters as AV1.

EXHIBIT #AV1 STATEMENT OF ALLISON JANET PETERS

PN17

MR BROADBENT: Thank you. I don't have anything further.

PN18

THE COMMISSIONER: Yes. Mr Kemppi.

<CROSS-EXAMINATION BY MR KEMPPI [9.48AM]

PN19

MR KEMPPI: Ms Peters, if I could just take you to paragraph 16 of your witness statement?---Yes.

PN20

You reference a conversation that you had with your predecessor Mr Ryan, and that conversation was to find out what the organisation's position was with respect to whether or not the entitlement we're claiming accrues. Would it be Mr Ryan's decision to make that the entitlement did not accrue?---Damian would have provided recommendations to the payroll team. So, it was his responsibility to determine that.

**** ALLISON JANET PETERS XXN MR KEMPPI
PN21

Having received - - -

PN22

THE COMMISSIONER: Sorry. Can I just clarify that. Does he provide a recommendation or a direction? Can they ignore what he says?---No. So, it's a direction, yes.

PN23

MR KEMPPI: That would have been my next question. Thank you.

PN24

With Mr Ryan now gone, I take it that that responsibility now falls to you. Is that correct?---Correct.

PN25

The payroll team would be just as unable to ignore your recommendation or your advice. Is that correct?---Correct.

PN26

If a station manager at a particular station decided that they would like to pay - or have an employee of theirs accrue annual leave despite the fact that they're not working and they're off on WorkCover, would that be a decision that they could make?---No.

PN27

How about the level above them? Would that be a decision that they could make?---No.

PN28

Would it be fair to say then that the only person within the organisation that could make a decision like that would be yourself?---No, that's not entirely correct.

PN29

Who else could make that decision?

PN30

MR BROADBENT: Sorry to interrupt, but I'm just wondering where this goes as far as jurisdiction is concerned. We're talking about whether it's part of the - arising under the agreement or the NES as opposed to who has authority to give a direction within the organisation about what is - - -

**** ALLISON JANET PETERS XXN MR KEMPPI
PN31

THE COMMISSIONER: Both the submissions go to whether or not section 130 applies as a prohibition or as a minimum, and as I understand where this question is going, it's understanding - or eliciting from the witness the capacity of the organisation to do more than what is the minimum in section 130.

PN32

MR BROADBENT: Okay. Yes.

PN33

THE COMMISSIONER: Am I incorrect about that?

PN34

MR KEMPPI: That is correct. We're also - - -

PN35

THE COMMISSIONER: I thought it was obvious.

PN36

MR KEMPPI: Who else then could make that decision after yourself?---Well, at any stage a business case could be prepared and endorsed through the executive or the CEO to change that interpretation.

PN37

That would be the executive, the CEO or yourself who could actually make the decision? Not so much prepare a case or make a suggestion, but to actually say, "Yes. This is how it should work"?---Correct.

PN38

If I could now take you to paragraph 12 of your witness statement. In it you describe the letter or the correspondence received from Mr McGee of United Voice and your response. Would it be fair to say that your position with respect to whether or not this entitlement arises hasn't changed since you received that correspondence?---That's correct.

PN39

No further questions.

PN40

THE COMMISSIONER: Well, I have some.

**** ALLISON JANET PETERS XXN MR KEMPPI
PN41

Ms Peters, in the materials filed on behalf of the union, the witness statements that have been filed and also in the submissions, those submissions go to - particularly in relation to the process detailing various times when these matters have been raised. You don't demure from the facts of those, do you?---No, I don't.

PN42

Do you accept that the correspondence from Mr Bradbury on 1 August 2013 where he says in the last paragraph, "Given that under the two aforementioned acts, AV is prohibited from accruing annual leave from employees in receipt of worker's compensation payments, we are not in a position to accede to your demand." Do you accept that he was closing the gate on conversation there?
---Not necessarily.

PN43

Well, did he invite conversation there?---No, he didn't.

PN44

Where in that correspondence do you see any suggestion that Ambulance Victoria is prepared to have further discussion about the matter?---I think in Mr Bradbury's letter he does say that we don't understand. Potentially that invites further correspondence.

PN45

No express invitation to have further discussions, then?---No, I don't think there's an express invitation.

PN46

But you'd accept that where he says "we are not in a position to accede to your demand", he's closing the gate?---Not necessarily, because I think the letter from United Voice was in the form of a demand. All they wanted was an increase in the accrual of annual leave.

PN47

AV is saying, "No. Absolutely not"?---We won't increase the employees' accruals of annual leave.

**** ALLISON JANET PETERS XXN MR KEMPPI
PN48

Mr Bradbury was intending by that correspondence "case closed"?---Case closed in regards to the accrual of leave entitlements.

PN49

Did you see that correspondence before it was issued?---Yes.

PN50

And did you have some part in that correspondence?---No, only - reviewed it prior to it being sent.

PN51

Did you agree with what it would say?---In essence, yes.

PN52

Where it says in that paragraph "AV is prohibited from accruing annual leave for employees", that's not your position, is it?---No. I think in our conciliation discussions we established that it wasn't prohibited but were not required.

PN53

What's the position of AV now?---We're not required to accrue annual leave.

PN54

But you concede that you could if you wanted to?---Correct.

PN55

Anything arising, Mr Kemppi?

PN56

MR KEMPPI: No, Commissioner. Thank you.

PN57

THE COMMISSIONER: Mr Broadbent? Yes. If the witness may be excused.

<THE WITNESS WITHDREW [9.54AM]

PN58

THE COMMISSIONER: Mr Kemppi.

PN59

MR KEMPPI: I'd like to call Mr Allister Briggs, please.

PN60

THE COMMISSIONER: Yes. Thank you.

PN61

THE ASSOCIATE: Please state your full name and current address.

PN62

MR BRIGGS: Allister Briggs, (address supplied).

<ALLISTER BRIGGS, SWORN [9.55AM]

PN63

THE COMMISSIONER: Thank you, Mr Briggs. Mr Kemppi.

PN64

MR KEMPPI: Thank you. If I could just hand this to the witness, please.

<EXAMINATION-IN-CHIEF BY MR KEMPPI [9.55AM]

PN65

MR KEMPPI: Mr Briggs, have you prepared a witness statement in this matter?
---I have.

PN66

Is that in front of you a true and correct copy of that witness statement?---It is.

PN67

I'd like to now ask that that be tendered into evidence.

PN68

THE COMMISSIONER: Yes. We'll call it UV1.

EXHIBIT #UV1 STATEMENT OF ALLISTER BRIGGS

PN69

MR KEMPPI: I have no questions of Mr Briggs at this stage.

PN70

THE COMMISSIONER: Thank you. Mr Broadbent.

PN71

MR BROADBENT: I have no questions of Mr Briggs.

PN72

THE COMMISSIONER: Yes. The witness may be excused.

<THE WITNESS WITHDREW [9.56AM]

PN73

MR KEMPPI: Thank you, your Honour. If I may now call Mr Antony Davis.

PN74

THE COMMISSIONER: Yes. Thank you.

PN75

THE ASSOCIATE: Please state your full name and address.

PN76

MR DAVIS: Antony David Davis, (address supplied).

<ANTONY DAVID DAVIS, SWORN [9.57AM]

PN77

THE COMMISSIONER: Thank you, Mr Davis.

<EXAMINATION-IN-CHIEF BY MR KEMPPI [9.57AM]

PN78

MR KEMPPI: Mr Davis, have you prepared a written statement in this matter?
---Yes, I have.

PN79

Is that before you a true and correct copy of that written statement?---It is.

PN80

I'd now ask that that be tendered into evidence - - -

PN81

THE COMMISSIONER: Yes.

PN82

MR KEMPPI: - - - and I have no further questions.

PN83

THE COMMISSIONER: We'll mark the witness statement of Antony Davis as UV2.

EXHIBIT #UV2 STATEMENT OF ANTONY DAVID DAVIS

PN84

MR KEMPPI: Thank you. I have no further questions.

PN85

MR BROADBENT: I have no questions of this witness.

PN86

THE COMMISSIONER: Yes. The witness may be excused.

<THE WITNESS WITHDREW [9.57AM]

PN87

THE COMMISSIONER: Mr Broadbent.

PN88

MR BROADBENT: Yes. Thank you. I hope you've got before you the written submissions that we - - -

PN89

THE COMMISSIONER: I have.

PN90

MR BROADBENT: I tried to make those as comprehensive as possible to reduce the time spent talking to them, so - - -

PN91

THE COMMISSIONER: I do apologise for interrupting. I just want to clarify something with Mr Kemppi if I can.

PN92

MR BROADBENT: Certainly.

PN93

THE COMMISSIONER: It might truncate the submissions, if I can.

PN94

MR BROADBENT: Certainly.

PN95

THE COMMISSIONER: Mr Kemppi, as I understand your submissions, it is not advanced on behalf of the union that this dispute arises under the NES. Is that correct?

PN96

MR KEMPPI: That is correct.

PN97

THE COMMISSIONER: And you say it arises solely under the EA?

PN98

MR KEMPPI: Correct.

PN99

THE COMMISSIONER: All right. Thank you.

PN100

MR BROADBENT: It does assist. I rely on the submissions put in relation to the agreement, but when one turns to the terms of the agreement, there are two areas that I think need to be dealt with today. One is whether the process of clause 8 has been followed in relation to the matters in dispute - and I'll deal with that as the second part of my submission - but the first part is whether or not the actual dispute that is before the Commission does in fact fall within clause 47 of the agreement, which is the annual leave provision. I do have a copy of clause 47 if you need it.

PN101

THE COMMISSIONER: I have a copy.

PN102

MR BROADBENT: You have a copy? Clause 47 is entirely silent on any matter relating to accrual of leave whilst on periods of worker's compensation, and the dispute that is being put to the Commission is a dispute specifically about the accrual of leave whilst on worker's compensation.

PN103

THE COMMISSIONER: I understand how you put that, but when one looks at clause 47.2, where it talks about the "accrual at large", why do you say that doesn't operate during periods of time when people are on compensation?

PN104

MR BROADBENT: Because clause 47.2 says, "An employee is entitled to four weeks' annual leave on ordinary pay for each 12 months of service," and annual leave accrues on a pro rata basis based on the employee's ordinary hours of work and is cumulative. So, during periods of worker's compensation, there are no ordinary hours of work. If it were the case that there were some restricted duties or an employee were coming back to light duties and have to work in part-time hours, then clearly there would be some ordinary hours of work when they attend for work and so there would be an accrual during that period for those ordinary hours.

PN105

But the clause there is quite specific, I think, in relation to it being ordinary hours of work, envisaging that there is work being done.

PN106

THE COMMISSIONER: Then what do you say about Mr Kemppi's argument about 47.10?

PN107

MR BROADBENT: 47.10 can't infer a right to an accrual under clause 47.2. What 47.10 does is ensure that there is no break in the continuity of service for the purposes of calculating the employee's entire service. But it's not dealing with ordinary hours or work and it's not inferring into the agreement that for some reason just because workers compensation absences are authorised that those authorised absences therefore accrue some kind of additional entitlement to that which is envisaged by the Act. The fact that there is no specific reference in the agreement to workers compensation at all must, in our submission, mean that the reading of the agreement is to operate in accordance with statutory frameworks that apply - which are the Fair Work Act section 1(30), which excludes section 87, accrual of leave during periods of workers compensation, unless the state legislation provides for it.

PN108

What this argument is really about, we would say, is the interpretation of the Accident Compensation Act and the Long Service Leave Act in Victoria - not about the terms of the agreement because the agreement simply doesn't provide for those matters. It leaves those matters to be provided for in accordance with the state legislation.

PN109

THE COMMISSIONER: Apart from the fact that the agreement predated the relevant provision in the Fair Work Act.

PN110

MR BROADBENT: It predated the introduction on 1 January 2010 but the agreement was November 2009, so the terms of the Fair Work Act or how it was going to operate were known at the time of this agreement being made.

PN111

THE COMMISSIONER: But isn't it possible for parties to an enterprise agreement to agree upon what a certain phrase might mean?

PN112

MR BROADBENT: It's possible for parties to agree on what a certain phrase might mean. But then - - -

PN113

THE COMMISSIONER: They could agree upon the meaning of a phrase which departed from what might otherwise be considered its ordinary meaning.

PN114

MR BROADBENT: To a point they could if there were some discussion and evidence of that agreement. I think the general rules of construction in that I think was the Telstra case where one talks of interpreting the terms of the agreement, the general prinicple is that where the terms are unambiguous or where the clause is unambiguous unless there is some compelling reason to infer some other agreement into the words used that would change perhaps the operation of that term - that can only be done where there is some ambiguity in the wording of the agreement. There is no ambiguity here in relation to accident compensation claims and the accrual of leave whilst absent on accident compensation claims.

PN115

THE COMMISSIONER: But as I understand what United Voice says, they say you look at their accrual provision. It deals with ordinary hours of work. They say there was a custom and practice prior to the 1 January 2010 where, when people were on workers compensation their accrual continued and it was the objective intention of the parties not to change that custom and practice, and that the ordinary hours of work in that circumstance, by agreement between the parties, it was intended to include times where people were on workers compensation.

PN116

MR BROADBENT: There's been no evidence presented to date - - -

PN117

THE COMMISSIONER: I'm not here the substantive one. Wouldn't that be a matter for the substantive hearing, as to whether or not that is the objective intention of the parties in the agreement.

PN118

MR BROADBENT: That would be for consideration at the time of the substantive hearing. However, what we - - -

PN119

THE COMMISSIONER: Yes. In deciding the jurisidction don't I only have to be satisfied that it is an arguable case on behalf of the union that its preferred interpretation of that clause should be informed by the custom and practice of the parties predating 1 January 2010.

PN120

MR BROADBENT: I think that there needs to be something more because what you need to be - - -

PN121

THE COMMISSIONER: What more could they provide on a jurisdictional hearing?

PN122

MR BROADBENT: You need to be satisfied that there's something in the agreement that can be open to that inference being applied. On the basis of the - - -

PN123

THE COMMISSIONER: What I understand Mr Kemppi to be saying is that it's not that ordinary hours of work is ambiguous - so we don't go down that line of judicial authority. He's saying, ordinary hours of work, as between these two parties, has a specific meaning which is broader than what it might ordinarily be because the parties always expected that ordinary hours of work would be informed by the custom and practice that had predated the making of this agreement.

PN124

MR BROADBENT: With respect to Mr Kemppi's submission in that regard, the fact of the matter is that the agreement was negotiated in 2009 and at that point in time had there been any intention on any of the parties to deal with the question of accrual of leave whilst on long service leave in any different way to that that is expressly provided for in the legislation. Prior to the Fair Work Act, the accrual entitlement arose by reason of the Workplace Relations Act. That changed with the - - -

PN125

THE COMMISSIONER: Yes, but again, that goes to the substantive issue in the dispute. What evidence can be led by both of the parties to determine whether or not they turned their mind to this? If they did turn their mind to it, what did they decide? If they didn't turn their mind to it then what flows from that? In interpreting an agreement you accept that you need to look at the objective intention of the parties, don't you?

PN126

MR BROADBENT: You need to look at the objective intentions of the parties but - - -

PN127

THE COMMISSIONER: Yes, all of that is evidence that goes to the substantive dispute. AV has said they don't want me to deal with the substantive dispute. So no evidence has been led about that - and that's well and proper. You're entitled to take thatrobjection. So surely that is open for me to decide on the jurisdictional question is, does United Voice on behalf of its members have an arguable case? If I decide they have an arguable case, then it would be open to a tribunal member if appropriate evidence was led before them to be satisfied that ordinary hours of work has a broader meaning than that which is ordinary. Surely I have to allow it for the jurisdiction.

PN128

MR BROADBENT: There are two issues that arise out of that. The first is where the bar sits as to ambiguity in the ageement that would enable you, as a member of the Commission, to make a decision there is sufficient ambiguity in the wording of a clause that you should consider inferring - - -

PN129

THE COMMISSIONER: No. What I've just indicated to you is I don't hear United Voice saying there's an ambiguity. They're saying, this clause has a particular meaning.

PN130

MR BROADBENT: The clause can't have the meaning that they're putting on it and its - - -

PN131

THE COMMISSIONER: It can by evidence. You've conceded that evidence - let me check this with you. Don't you concede that evidence could be led by them that gives that phrase a meaning which is different to the meaning which you and I might otherwise understand it.

PN132

MR BROADBENT: I don't see where that evidence could come from in the facts.

PN133

THE COMMISSIONER: No. Do you accept that they could lead evidence that would assist them to convince the tribunal that that clause has a meaning which is different to that which you and I might ordinarily think of it?

PN134

MR BROADBENT: I don't believe that evidence exists.

PN135

THE COMMISSIONER: I didn't ask you that. I asked you, do you accept that they could lead that evidence?

PN136

MR BROADBENT: If they have that evidence, they could lead that evidence.

PN137

THE COMMISSIONER: Yes. Once I'm satisfied by your concession just now that they could lead that evidence, surely I must let them have that opportunity to do so.

PN138

MR BROADBENT: The reason you shouldn't is because the variation to the Fair Work Act came into effect after the agreement was - - -

PN139

THE COMMISSIONER: So their evidence might be, all the parties knew that change was coming in but we decided not to change the meaning in the agreement because all of us thought we would just continue on the way it's always been and it wouldn't be necessary to have an express clause in the agreement that obviated section 1(30). That might be their evidence. I don't know whether that evidence is there. AV chose for me not to hear any of that evidence. Surely I have to take the most beneficial interpretation of the dispute clause and I have to provide them with the opportunity to lead that evidence before another tribunal member.

PN140

MR BROADBENT: If the agreement were in any way unclear - I hear what you're saying and I hear what United Voice is saying, that they believe that there was some kind of agreement or knowledge between the parties that this was the way things would go. But the facts of the matter are that when interpreting the terms of the agreement you must look at the words that are in the agreement. Those words are plain and clear. When read in conjunction with the agreement as a whole, there is no provision for anything to do with the Accident Compensation Act or accrual. There is provision elsewhere in the agreement, I think in clause 57 of the agreement, which specifically references workers compensation and periods of workers compensation.

PN141

When you're looking at the jurisdictional issue of whether or not this is a matter that arises out of the agreement, you're entitled to look at other clauses in the agreement and you're entitled to draw the conclusion that where the agreement itself references the Accident Compensation Act elsewhere but doesn't reference it here, there has to be a reading of the agreement on the basis of the legislation that overarches. On the basis of the legislation that overarches it - that's what the dispute is about. That's the genuine nature of this dispute. It's not about leave accrual. It's about what happens on workers compensation.

PN142

THE COMMISSIONER: No. This dispute is about whether or not these workers are entitled to accrue annual leave whilst they are in receipt of workers compensation. United Voice says that is permissible under 47.2 because of the proper meaning to be given to that clause, having regard to the custom and practice which must inform the interpretation of this agreement. They haven't had the opportunit to lead that evidence because AV said, "No, you can only deal with the jurisdictional evidence, you can't lead any evidence about that other aspect of it." That must be open to them to argue.

PN143

MR BROADBENT: It's open to them to put. I don't think that I could really suggest it isn't.

PN144

THE COMMISSIONER: In that case, surely the job of the Commission is to interpret, as broadly as possible, the dispute resolution clause to allow people to run the argument which is open to them - which you have just conceded is open to them - if the evidence is there. I don't know if the evidence is there and AV decided I wasn't allowed to received. Surely I have to give United Voice and the tribunal member who hears this the best opportunity to hear whatever evidence is out there on how you interpret that clause. Surely that's right.

PN145

MR BROADBENT: I don't think I can advance my submissions further other than to say that my view, as you would gather from what I've said, is that that opportunity is only open where there is some form of ambiguity in the - - -

PN146

THE COMMISSIONER: Yes. I hear what you say about that.

PN147

MR BROADBENT: In the light of that exchange I don't have anything further that I think can usefully be put in respect of whether it falls under the terms of the agreement. The second limb of jurisdiction, though, is one about whether or not the terms of clause 8 have actually been complied with. I noted your question to Ms Peters on the the stand in terms of was the correspondence from Mr Bradbury effectively closing the door on any discussion. With respect, that is, I don't think, relevant to the question of whether or not clause 8 has been complied with in any way shape or form. The requirement of clause 8 - it's incombent upon the person who is raising the grievance to kick the process off under the terms of clause 8.

PN148

THE COMMISSIONER: Yes, and they can do that through their representatives, can't they.

PN149

MR BROADBENT: They can. They can do that through their representative or they can do it individually.

PN150

THE COMMISSIONER: You accept that the correspondence of 22 July from United Voice on behalf of each of their members properly kick-started that on behalf of their members.

PN151

MR BROADBENT: No.

PN152

THE COMMISSIONER: Why not?

PN153

MR BROADBENT: That was a letter of demand which was - we're talking about 22 July - - -

PN154

THE COMMISSIONER: I am.

PN155

MR BROADBENT: - - - this year. That was a letter of demand. It was not in any way worded or couched in terms of let's discuss. The obligations of the parties are set out at clause 4 and it states that they must genuinely attempt to resolve the dispute or grievance through the process that's set out in clause 8. In our submission, issuing a letter of demand of that nature which finished with a plain statement saying, "If you don't agree with us and if don't do what we're telling you to do, we'll take you to Fair Work" is not - - -

PN156

THE COMMISSIONER: Why didn't Mr Bradbury write back and say, "You're in error here. That's not how you start a grievance. You start a grievance by doing it this way." What he does instead is writes back and he says, "We are not in a position to accede to your demand," and as Ms Peters properly conceded, he closed the gate on that as an option. Are you honestly suggesting that when they received that correspondence - what are they meant to do? Are they then meant to write to their supervisor, who's below this person, and ask the issue?

PN157

MR BROADBENT: No, I - - -

PN158

THE COMMISSIONER: What are they meant to do when they receive correspondence like that that closes the gate?

PN159

MR BROADBENT: What I'm suggesting is when they choose to send correspondence of the nature that (indistinct) - - -

PN160

THE COMMISSIONER: I'm not asking that. I'm asking you - - -

PN161

MR BROADBENT: All right.

PN162

THE COMMISSIONER: When individual workers, represented by their union, receive correspondence like this from Mr Bradbury, what are they meant to do in order to, in your view, properly enlived the dispute resolution procedure? What you're saying is, "Because they wrote to us like this, we get to write to them back like that." Tit for tat.

PN163

MR BROADBENT: No.

PN164

THE COMMISSIONER: I'm asking you, focus only on the correspondence of 1 August - what were they meant to do, what could they possibly have done to enliven the jurisdiction of the Commission after they had received that?

PN165

MR BROADBENT: The process that should have been followed after they received that letter was effectively, in my view, to go back and say, "Think you may have misunderstood what we're saying. We want to discuss this as part of the grievance process. Let's sit down and talk." AV would sit down and talk in those cirucmstances. It wasn't - - -

PN166

THE COMMISSIONER: What are they going to talk about? Mr Bradbury says, "Given that under the two aforementioned acts, AV is prohibited" - and we now know that he was wrong about that - "from accruing annual leave for employees in receipt of workers compensation papers. We are not in a position to accede to your demand." I mean, how does that, in all honesty, leave the gate open at all to these workers?

PN167

MR BROADBENT: The discussion that could have taken place following that correspondence, and had the thing been kick-started in the correct way in the first place possibly would have been they way it would have gone, would be that the employer would be able to explain their position and the basis for their understanding of both the legislation and the reason why they've taken the view that they've taken in respect of the accrual of leave during these periods. Perhaps - - -

PN168

THE COMMISSIONER: Aren't we taking a vacation from the reality of the situation here - - -

PN169

MR BROADBENT: No.

PN170

THE COMMISSIONER: - - - by suggesting that? That when workers receive correspondence like this from their employer they're meant to think, "My employer is willing to have a genuine conversation with me about the matter." You've go to be joking.

PN171

MR BROADBENT: There's a long relationship between the union and Ambulance Victoria. In general terms, they're relationship is one where they do discuss things which are contentious between the parties and they do resolve them. It's not a situation where the union would be taken by surprise. They've made a very clear demand in their letter and they've been provided with a clear explanation as to the employer's belief as to why they are not right in making the demands that they've made. That doesn't preclude further conversation about it if the parties take those steps to have that further conversation. Ambulance Victoria's letter, Mr Bradbury's letter was simply stating the facts as he understood them to be.

PN172

The prohibition part of it is clearly not correct. However, the general principle that, under the terms of the Act, which he talks about in his correspondence, there's not right to accure - that is correct. The facts of this dispute are that following the demand a clear response was given as to the organisation's position - which is the correct thing to do - and discussion could have ensued from there. There's no reason, having regard to the relationship between the parties and the length of time that the relationship has exists, and the number of issues that arise between them, there's no reason to believe that there couldn't have been some useful conversation that might take place, that might have avoided the need for us to be in Fair Work at all on this issue.

PN173

But the agreement states that that's the process that must be followed, even if it means that we have to revert back to a period of having discussions. It's important and, in our submission, it's essential from the point of view of the Commission exercising its functions efficiently and effectively to enable that process to take place - even if it's futile it still must be followed. I'm not suggesting that it's futile at all. What I'm suggesting is that the process must be completed before Fair Work involves itself. For Fair Work to involve itself prior to that is an invitation to either party to start filing things - - -

PN174

THE COMMISSIONER: So it's your submission that having received correspondence from the employer that says, "We are prohibited from doing this," both Mr Davis and Mr Briggs ought to have assumed that their employer wanted to have a conversation with them.

PN175

MR BROADBENT: Mr Davis and Mr Briggs were represented by the union, they were being represented at that time by the union. There's no reason why the union couldn't have gone back as their representatives - because Mr Briggs and Mr Davis were, it's their grievance but they're to decide if the actual discussions at that point in time, had there been any discussions, because the discussions would have been - - -

PN176

THE COMMISSIONER: Their employer knows that, as individual workers, they've got this grievance, doesn't it?

PN177

MR BROADBENT: It does, at that point.

PN178

THE COMMISSIONER: Did it initiate any conversation with them about it?

PN179

MR BROADBENT: No, because they were represented by the union. They were dealing with the union.

PN180

THE COMMISSIONER: Since when does someone being represented by a union prevent direct dialogue between the employer and the union member?

PN181

MR BROADBENT: It doesn't prevent it but the letter - - -

PN182

THE COMMISSIONER: At any point in time, whilst Mr Davis and Mr Briggs, this dispute was known to Ambulance Victoria - at any point in time Ambulance Victoria could have had a direct conversation with them about it, couldn't it?

PN183

MR BROADBENT: As could any - yes, they could.

PN184

THE COMMISSIONER: It chose not to.

PN185

MR BROADBENT: They chose not to in circumnstances where they were receiving correspondence from the union, yes.

PN186

THE COMMISSIONER: It chose to tell them, "We're prohibited from doing this."

PN187

MR BROADBENT: By the union, yes, by their representative - and the union - - -

PN188

THE COMMISSIONER: But you still maintain that in those circumtances they ought to have assumed that they could have had a conversation with their employer about the matter?

PN189

MR BROADBENT: I do maintain that, yes, because the - - -

PN190

THE COMMISSIONER: All right.

PN191

MR BROADBENT: - - - the process should have been kicked-off properly in the first place, and that's what needs to happen before Fair Work is entitled to determine the question itself. That's a process I think that's important and it's essential to the efficiency and effectiveness of any enterprise agreement. Because once the Commission determines - - -

PN192

THE COMMISSIONER: I'm sure it's more efficient and effective when you know you've got employees who have a grievance picking up the phone and saying, "I understand you've got this grievance. You've got the union acting for you but how about we have a conversation? Of course, you can bring your union representative along with you. How about we do that?"

PN193

MR BROADBENT: In some instances I'm sure that that would happen.

PN194

THE COMMISSIONER: But AV didn't choose to do that in this case.

PN195

MR BROADBENT: They didn't in this case, no. They - - -

PN196

THE COMMISSIONER: No. What they chose to do - - -

PN197

MR BROADBENT: - - - dealt with - - -

PN198

THE COMMISSIONER: - - - was to - - -

PN199

MR BROADBENT: What they were doing is responding to a demand - - -

PN200

THE COMMISSIONER: And they closed the gate.

PN201

MR BROADBENT: They didn't close the gate - - -

PN202

THE COMMISSIONER: Where in that correspondence, Mr Broadbent, is the gate left open?

PN203

MR BROADBENT: They answered the question that was put. The matter that was put, the demand that was made was "accrue this leave or we will take action against you in Fair Work." What they've saidis, "We don't think you're right. We don't have to accrue this leave."

PN204

THE COMMISSIONER: When did Ambulance Victoria form the view that Mr Bradbury was wrong in asserting that it is prohibited?

PN205

MR BROADBENT: During these proceedings. We had some discussions, I think prior to my going on leave and prior to the hearing where I was granted leave - - -

PN206

THE COMMISSIONER: (indistinct) since 4 September. Would that be right?

PN207

MR BROADBENT: Yes, probably around - - -

PN208

THE COMMISSIONER: Yes. What has Ambulance Victoria done since 4 September to tell their employees, Mr Davis and Mr Briggs, "We told you on 1 August that this is prohibited. We were wrong about that. We'd now like to have a conversation with you about it."

PN209

MR BROADBENT: That hasn't occurred, to my knowledge.

PN210

THE COMMISSIONER: Right.

PN211

MR BROADBENT: The only discussion confirming that that was wrong I think was when we were discussing at the application where I was granted leave where we genuinely discussed that.

PN212

THE COMMISSIONER: Ambulance Victoria doesn't think it's necessary when they tell their employees that something's prohibited - Ambulance Victoria doesn't think it's necessary to tell those employees, "We were wrong"?

PN213

MR BROADBENT: I don't think, in the circumstances where this case had progressed to the point that it had progressed to that it was at the forefront of their mind, no. I just don't think it was a deliberate action not to tell their employees and I don't think it is likely that it was some deliberate decision that was taken. It was just not addressed.

PN214

THE COMMISSIONER: The fact that they had said something incorrect to their employees wasn't at the forefront of their mind?

PN215

MR BROADBENT: No. I don't think it - in this issue and at that point in time, no, I don't think it was. The question of whether it was prohibited or not doesn't affect the general issue. It apparently was discussed in the conciliation conference - but I wasn't at that. So the question of prohibition and both employees were (indistinct) - - -

PN216

THE COMMISSIONER: It's a very peculiar thing to lead evidence from the bar table about what happens in a conciliation conference in a hearing.

PN217

MR BROADBENT: I'm not leading evidence on it. I'm just saying that's - - -

PN218

THE COMMISSIONER: It's not appropriate to disclose in an open hearing what happens in a conciliation conference.

PN219

MR BROADBENT: No.

PN220

THE COMMISSIONER: I don't know why you're doing that.

PN221

MR BROADBENT: Okay. I - - -

PN222

THE COMMISSIONER: I don't know why Ms Peters has instructed you to do that.

PN223

MR BROADBENT: I'll make no further comment. In any event, formally, in written form, no, there hasn't been anything and it wasn't at the forefront of their mind. Having regard to the fact that this proceeding was moving in the direction that it was moving, I don't think it - - -

PN224

THE COMMISSIONER: As slow as it has.

PN225

MR BROADBENT: I don't think it came to the forefront of their mind. I think, had it been that the process of consultation or the process of discussion as envisaged by clause 8 was being followed then that would have been thrashed out in the discussion and it would have been established that there was no prohibition but there was also no entitlement. It could have been discussed as to where Ambulance Victoria felt it was in the right in deciding that accrual was no longer appropriate when workers were on workers compensation. That would have all come out in the wash. But the process of clause 8 wasn't followed from the outset so that opportunity hasn't arisen.

PN226

That's why I'm saying it is important and it's never futile. These discussions can never be said, in my view, to be futile. Because there can always be things that can come out of them that are of use. It's very important that that process is allowed to be followed however difficult that may be and however entrenched the parties's view may be as to their particular viewpoint or their particular understanding. But the moment that the Commission starts to take a view that the process is unlikely to give rise to any finality or any agreement between the parties and therefore the Commission early - the moment that that happens it does give rise to some concerns that there will be more and more and earlier and earlier applications to the Commission which is, in our submission not wasnevisaged - - -

PN227

THE COMMISSIONER: But isn't it the case that on behalf of Mr Davis and Mr Briggs the union wrote to Ambulance Victoria on 22 July 2013 and at no point since that time has Ambulance Victoria sought to have a discussion with United Voice about the issue?

PN228

MR BROADBENT: No, and I don't think that they considered that this was a dispute, if you like, in terms of the agreement, they considered that there was a demand being made.

PN229

THE COMMISSIONER: Again, sorry, is it right that at no point since 22 July have Ambulance Victoria sought to have a discussion with United Voice and these workers about this issue?

PN230

MR BROADBENT: No.

PN231

THE COMMISSIONER: So I agree with you, as you've just been making submissions about the utility of having discussions and the parties talking about issues, but it seems strange that since 22 July, Ambulance Victoria have done nothing to have a conversation about this.

PN232

MR BROADBENT: Equally, I think it's strange that the union approached the issue in the way that they did in the first place.

PN233

THE COMMISSIONER: Well, no wonder when you've not had a conversation with them since 22 July.

PN234

MR BROADBENT: Well, rather than seeking to have a discussion, they make a demand. I don't think that it's correct or appropriate to form a view that the fault for this lies with one party or the other. The process kicks off badly.

PN235

THE COMMISSIONER: That's a little bit precious, isn't it? You're saying, "We don't like the way they wrote to us, so we're not going to talk to them."

PN236

MR BROADBENT: No, that's not what we're saying at all; what we're saying is that they made a demand. Nothing in that letter indicated or gave rise to any indication that there was any intention on these employee's part or on the union's part to engage in any form of discussion about the issue that they were raising, there's nothing there, so - - -

PN237

THE COMMISSIONER: Mr Broadbent, you've no doubt been around a long time like me and many industrial dispute starts with a demand.

PN238

MR BROADBENT: They can start with a demand and often there's some discussion after the demand.

PN239

THE COMMISSIONER: And isn't that what happened here? It started with a demand.

PN240

MR BROADBENT: And often there can be discussion afterwards.

PN241

THE COMMISSIONER: Except in circumstances where the employer writes back and says, "We're prohibited from doing this and we're not going to accede your demand," full stop.

PN242

MR BROADBENT: I think that's an accurate - well, apart from the prohibition, that's an accurate statement, they're not conceding to the demand.

PN243

THE COMMISSIONER: Yes, and so demand made, demand refused - - -

PN244

MR BROADBENT: And then we're here, but - - -

PN245

THE COMMISSIONER: And so you must be properly here, then.

PN246

MR BROADBENT: No, because there has been no genuine attempt to resolve the dispute - - -

PN247

THE COMMISSIONER: Because the employer has closed the gate.

PN248

MR BROADBENT: I don't agree that the fault, if you like, or the reason that you're suggesting for there being no possibility to comply with the terms of clause 8 is because of the employer. It's perfectly open, as it's open for the employer, to go to the employees and say, "Hey, let's have a discussion about this," notwithstanding the fact that there's been this demand. It's equally quite open for the employee's representatives to say, "Hold on a minute, we're making a dispute here and we want to follow the process, and we don't think you're following the process by writing to us in terms saying that you're not going to discuss - - -"

PN249

THE COMMISSIONER: But Mr Broadbent didn't write that. He didn't say, "Look, the reason why I'm not dealing with you - - -"

PN250

MR BROADBENT: Mr Bradbury.

PN251

THE COMMISSIONER: Sorry, Mr Bradbury. Yes, my apologies. He didn't write and say, "Look, you haven't followed the dispute resolution procedure here."

PN252

MR BROADBENT: No, he didn't say that and nor did the union.

PN253

THE COMMISSIONER: No. If that's the objection you had, why didn't he write that?

PN254

MR BROADBENT: As I said earlier, I don't know that it was being considered as a dispute at that point under the terms of the dispute resolution procedure; it was being considered as a demand for accrual of leave relating to the Accident Compensation Act.

PN255

THE COMMISSIONER: Isn't that just semantics?

PN256

MR BROADBENT: Well, it may - - -

PN257

THE COMMISSIONER: It seems to be divorced of industrial reality.

PN258

MR BROADBENT: It's not. I can't speak for Mr Bradbury, but the - - -

PN259

THE COMMISSIONER: Well, you could have called him.

PN260

MR BROADBENT: Yes. From what Ms Peters has said in her evidence today, the way she was looking at this was not so much as being a question being raised under the agreement as a dispute, it was more a question being raised that didn't relate to the agreement but it related to leave accrual whilst on workers' compensation, which was something separate and that's what that letter then explains. So if the demand is made, the letter explains that it's nothing to do with anything other than the Accident Compensation Act and the Fair Work Act section 140, which provides the exclusion, and that's why the leave is not accruing, so they're not going to change their position because they're following the terms of those Acts. I think that's the way they were looking at it from Ms Peters' evidence as opposed to being a - - -

PN261

THE COMMISSIONER: Where does she say that in her witness statement?

PN262

MR BROADBENT: The letter at paragraph 8 is the first time that she references - - -

PN263

THE COMMISSIONER: No, well, that's the correspondence in August 2011.

PN264

MR BROADBENT: I do apologise, yes. Yes, paragraph 16 and, going through, we considered the correspondence, we considered - - -

PN265

THE COMMISSIONER: Yes, but your submission just then was that Ms Peters did not understand that the correspondence of 22 July was correspondence that initiated a dispute under the enterprise agreement, that's not her evidence there.

PN266

MR BROADBENT: She says there at paragraph 19, "We concluded that there was no entitlement because the agreement does not provide it," so - - -

PN267

THE COMMISSIONER: No, she's not saying there, "I did not understand that this was a complaint under the enterprise agreement," which is what you are trying to submit to me and there's no evidence of that, is there?

PN268

MR BROADBENT: I think paragraph 19 and then through to paragraph 21 because the letter indicated that United Voice would lodge a dispute notice if they did not agree I discussed with John Bradbury and demand within the dispute resolution process and paragraph 22 concluded that the dispute was not about leave accrual it was about. So there had been some consideration and there had been a conclusion drawn between Ms Peters and Mr Bradbury that this was a matter that wasn't covered by the agreement and therefore wasn't covered by the dispute resolution process, and that's the evidence that she's put forward, and that's the framework by which this has been dealt with, so I think that's where that evidence lies. I don't think that it's necessarily semantics, it's just they were looking at it from a particular point of view and that affected and influenced the way in which they dealt with the correspondence that was presented to them or the demand that was presented to them.

PN269

THE COMMISSIONER: Yes, anything further on the process?

PN270

MR BROADBENT: No, I think, other than what I've put in my submissions, that is where our submissions shall end.

PN271

THE COMMISSIONER: Thank you, Mr Broadbent, I am greatly assisted by them. Thank you.

PN272

MR BROADBENT: Thank you.

PN273

THE COMMISSIONER: Mr Kempii.

PN274

MR KEMPII: Thank you. Commissioner, we would like to speak firstly to whether or not a particular process was followed and then speak to whether or not this dispute is within the scope of the enterprise agreement. Naturally we believe that those are the two matters to be determined as to whether or not there is, in fact, jurisdiction. Mr Broadbent has submitted that the process in clause 8 of the Ambulance Victoria agreement was not followed; however, no evidence has been put on about what exactly that process would be. We say that from looking at the Ambulance Victoria enterprise agreement clause 8.6, the only mandatory step to be taken is that the dispute or grievance must first be discussed by the aggrieved employee with the employee's immediate supervisor.

PN275

THE COMMISSIONER: 8.6(a)?

PN276

MR KEMPII: 8.6(a). Mr Broadbent has led evidence about that or submitted about 8.4(a). Now, we say that is to be understood as guidance as to how the parties should conduct themselves. It perhaps may be the case, we're not conceding that it is, but it may be the case that one or both of the parties had not acted in the spirit of 8.4(a); however, we would say that is not, in fact, a step, that's not a step in the dispute resolution process but rather a guide as to how parties are to act, behave and approach the situation.

PN277

The only mandatory step is 8.6(a), that there must be a discussion between the employee and their immediate supervisor. Now, the facts show that much more than this has occurred. In the witness statement of Mr Davis, which was not challenged, at around points 9 to 12 there's evidence of several discussions with the immediate supervisor and with levels of management beyond that, and there's also an attached email to payroll whom Ms Peters recognised on the stand as being one representative of AV who had carriage of this matter. In the witness statement of Allister Briggs - my apologies, there's no reference to Mr Briggs. At any rate, though, we say that between the actions taken by Mr Davis and the letters of United Voice to the respondent, any mandatory step has been complied with on the facts. And, again, we submit that no evidence has been led with respect to the existence of any other process that ought to have been followed save for the blanket assertion that the process was not followed.

PN278

In the alternative, we would say that the steps to be taken in clause 8 should be read with respect to the overall purpose of that clause, which we say is to provide for the resolution of disputes at a workplace level, ideally, but the referral to a third party or a workplace umpire if those disputes cannot be resolved. This is consistent with section 186(6) of the Fair Work Act, which requires an agreement to contain the term:

PN279

Providing for a procedure that requires or allows Fair Work Australia or another person who is independent to settle disputes about any matter arising under the agreement or the NES.

PN280

Importantly, we say that is one of the ways in which the objects of the Fair Work Act are realised, in particular the object under subsection (3)(e), which is to enable fairness and representation of work and provide accessible and effective procedures to resolve grievances and disputes and provide effective compliance mechanisms. In light of Ms Peters evidence that her view had not changed, and we can only infer would not change, the effect of finding, Commissioner, that there is no jurisdiction, or want of a failure on procedural grounds, would be that we would have to have negotiations with a range of supervisors at Ambulance Victoria all for no purpose whatsoever.

PN281

Mr Broadbent submitted that even if such discussions were futile they should nevertheless be had anyway, and with respect, in the interest of the Victoria tax payer, we disagree with that proposition, Commissioner. Those discussions should only be had to the extent that they're in line with the purpose of clause 8 in the Fair Work Act, and we say they should only be had to the extent that they are in fact effective, and they would certainly not be effective in this case. Ms Peters gave evidence that in order to make a decision such as whether or not this entitlement that we claim exists, you had to be one of three things, and those three things were part of the executive of Ambulance Victoria, the CEO of Ambulance Victoria or Ms Peters herself.

PN282

We say that having discussions at any level other than that would be entirely futile and should therefore not be a reasonable expectation, and that is of course particularly the case given that Mr Bradbury, not even one of the key decision makers but acting under the guidance of one of the key decision makers, has effectively, as you put it, Commissioner, shut the gate on any further discussions, any further meaningful discussions that is. We feel that fairly well settles the matter with respect to whether or not the steps required by clause 8 were taken, so on the one hand we say that there were those mandatory steps bar one, and that step has been complied with.

PN283

In the alternative, we say that the effect of ordering further steps to be complied with would simply be, as Mr Broadbent put it, futile as to the scope of the matter. I'd like to just draw your attention, Commissioner, to paragraph 19 of Ms Peters witness statement, in that Ms Peters concludes that there is no entitlement, and this is in response to the letter received on 22 July. Ms Peters concludes that there's no entitlement because the agreement doesn’t provide an entitlement, section 130 of the Act precludes, then there's a reference to the Accident Compensation Act and some other references there.

PN284

This, to us, suggests that Ms Peters did in fact turn her mind to the agreement that in assessing the claim, in assessing the demand that was made by United Voice, Ms Peters did in fact have regard to the agreement an the terms of that agreement, which suggests again that this is very much a dispute about the agreement. Section 130 in the Accident Compensation Act have been argued as defences to the claim both in submissions and also in today's hearing, however, that does not mean that this is a dispute about section 130 or a dispute about the Accident Compensation Act.

PN285

In fact, we say that the underlying position would be that section 47 of the agreement provides the entitlement and it is up to the respondent, we say, to argue to the contrary, and they were doing it by arguing section 130, they're now doing it by arguing along the lines of the Accident Compensation Act and other provisions of the Fair Work Act. There is, Commissioner, a history - - -

PN286

THE COMMISSIONER: But isn't it the case that United Voice only gets home and the members only get home if the phrase "ordinarily hours of work" has a meaning that is different to what you and I might ordinarily think that means?

PN287

MR KEMPPI: That is potentially the case, that we would only get home if ordinary hours of work includes hours where you may not in fact work, so it would have a meaning that's distinct from actual hours of work, as an example. That of course is a matter for the substance of the dispute - - -

PN288

THE COMMISSIONER: Which is not before me.

PN289

MR KEMPPI: Correct. Which we would have been happy to have before you but is not before you.

PN290

THE COMMISSIONER: It might not be.

PN291

MR KEMPPI: The parties in this case have acted on a common understanding, we say, about what the clause means, and that common understanding has been that when an employee is on accident compensation payments when they're not actually at work they nevertheless receive an accrual. There is much evidence to indicate that there was in fact a custom and practice to that effect. Now, we're not pressing the custom and practice argument in this matter as a contractual argument, however, we do say that it's very relevant to how the clause should be interpreted. Commissioner, as you've rightly pointed out, this is a question of how that clause and the particular phrase within that clause should be interpreted.

PN292

We suggest that it should be interpreted with respect to the actual industrial reality, the reality in the workplace and what both parties would have intended through their courses of action, through their dealings with one another. Now, we can find authority for the proposition that where a particular clause has been interpreted in a particular way, the evidence of the conduct of the parties in applying similar provisions can be taken into account. We can find authority for that proposition in Australian Licensed Aircraft Engineers Association v Qantas Airways C2008/2534 before the Full Bench of the Fair Work Commission, or Fair Work Australia, as it was. I'll just hand a copy up. Thank you.

PN293

THE COMMISSIONER: Thank you.

PN294

MR KEMPPI: That is at paragraph 17, Commissioner. We say that in addition to the ordinary principles of statutory construction, the sentiments in paragraph 17 suggest that the conduct of parties is in fact relevant to how a present clause should be interpreted. For that reason, we say that there is scope for Fair Work to decide whether or not the entitlement arises under the agreement or whether or not the entitlement arises at all. Further, we say that there are grounds under clause 47.1, which lead to an argument that the annual leave entitlement calculation should be had with regard to a period of absence due to a workplace injury on the basis of it not being unauthorised and not being unpaid leave.

PN295

That said, Commissioner, I don't want to go too far off course into the substantive matter. At this stage, it's our view that we simply need to demonstrate that there is enough there to present an arguable case, the bar should not be as high as Mr Broadbent suggests. In fact, we're confident in the abilities of any commissioner that hears this matter to be able to restrict their decision to simply the provisions of the agreement and not entertain the wider contractual matter or anything like that. We're, you know, of course confident that those would be the only matters we would put before the commission and those would be the only matters taken into account.

PN296

The very fact, though, that we've sat here and had this argument I think demonstrates that there is in fact an entitlement, or an arguable entitlement, there under the agreement simply because the respondent has, at all times, argued that there is a bar to the entitlement provided by either section 130 of the Accident Compensation Act, but has not, until just recently, argued that there is in fact no entitlement there. At any rate, though, where we have two parties each with entirely different interpretations of an agreement, each pressing their own respective cases, I would suggest that is in fact a dispute and it is a dispute that need be heard by the commission.

PN297

THE COMMISSIONER: Yes. Thank you.

PN298

MR KEMPPI: Thank you.

PN299

THE COMMISSIONER: Mr Broadbent.

PN300

MR BROADBENT: Only one minor thing. In relation to the question of whether or not any discussions might be futile, I think my friend made reference to the process of approvals, being Ms Peters or above, that's the case for anything, it doesn’t make the discussions below futile, what happens is the discussion is had with the group manager or whoever it may be and then they will press the point with managers higher up. As a result of that, there will be a collaboration of minds and they'll make a determination whether or not there should be some change recommended to the executive for approval or not. It's not that having those discussions can't ever produce a result, so I maintain what I said in my submissions that engaging in that discussion is not a futile exercise and wouldn’t be a futile exercise.

PN301

THE COMMISSIONER: Yes.

PN302

MR BROADBENT: Other than that, I have nothing further.

PN303

THE COMMISSIONER: Thank you very much. I do thank the parties for filing the submissions that have been filed in the matter, and the witness statement. I thank each of the advocates for their supplementary oral submissions today, all of which has been of great assistance to the commission, but the commission will now reserve its decision.

<ADJOURNED INDEFINITELY [10.54AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ALLISON JANET PETERS, AFFIRMED PN11
EXAMINATION-IN-CHIEF BY MR BROADBENT PN12
EXHIBIT #AV1 STATEMENT OF ALLISON JANET PETERS PN16
CROSS-EXAMINATION BY MR KEMPPI PN18
THE WITNESS WITHDREW PN57
ALLISTER BRIGGS, SWORN PN62
EXAMINATION-IN-CHIEF BY MR KEMPPI PN64
EXHIBIT #UV1 STATEMENT OF ALLISTER BRIGGS PN68
THE WITNESS WITHDREW PN72
ANTONY DAVID DAVIS, SWORN PN76
EXAMINATION-IN-CHIEF BY MR KEMPPI PN77
EXHIBIT #UV2 STATEMENT OF ANTONY DAVID DAVIS PN83
THE WITNESS WITHDREW PN86