B2015/766, Transcript of Proceedings [2015] FWCTrans 523 (23 September 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

PN762

THE COMMISSIONER: Yes, could I have the appearances in the matters please?

PN763

MR A HOWELL: Commissioner, Howell, H-o-w-e-l-l, initial A, for the AMOU.

PN764

MR J FALLONE: Good afternoon, Commissioner. If it pleases, Fallone initial J on behalf of the Australian Institute of Marine Power Engineers and in the corner with me today, Mr S Littlewood, a national organiser for AIMPE.

PN765

MS DOUST: Yes, Commissioner, I seek permission pursuant to section 596 to appear for the Maritime Union of Australia. With me is Mr P Garrett who appeared on the last occasion. So far as the grounds in section 596 are concerned, in my submission because there will need to be something of a rehearsal of the arguments that will unfold on the final hearing, and those arguments have a degree of complexity as they concern the relationship between section 238 and the approval provisions of the legislation, in my submission the matter is one of sufficient complexity that it would be more efficiently dealt with by having legal representation for the MUA in the matter.

PN766

THE COMMISSIONER: Yes. Thank you.

PN767

Does anyone oppose permission?

PN768

MR HOWELL: No, Commissioner.

PN769

MR FALLONE: No objection.

PN770

MR MAHENDRA: No, Commissioner. My name is Mahendra, M‑a‑h‑e‑n‑d‑r‑a, initial D. I appear for Harbour City Ferries and with me is Ms A Cameron.

PN771

THE COMMISSIONER: Yes. Well I think on a previous occasion there had been an objection raised about permission and I'd sort of reserved and preserved everyone's rights generally. But for today's purposes it seems that there's a broad absence of opposition, and I do identify a degree of complexity in this matter which would be assisted I think by lawyers or paid agents, and so permission is formally granted for any of the parties to be represented by lawyers or paid agents.

PN772

MR HOWELL: Thank you, Commissioner. I think it falls to me, given this afternoon is a listing to deal with summonses issued by my client - or sought to be issued which the Commission subsequently issued - by my client, and objection is taken to them. I think in all the circumstances it's appropriate I go first, but I'm in the Commission's hands. Unless you wanted to hear from the objectors first?

PN773

THE COMMISSIONER: No, you may as well start, Mr Howell.

PN774

MR HOWELL: May it please. Thank you, Commissioner.

PN775

THE COMMISSIONER: Yes.

PN776

MR HOWELL: I note the time and I'll endeavour to be brief. Can I start by making these observations about the circumstances in which the summonses were issued. Firstly, both the scope order application and the agreement approval application are before the Commission, as we apprehend it from the directions that were issued on 19 August, are to be dealt with together on 18 September and our evidence and submissions in both applications is due to be filed tomorrow. When considering the issues in the proceedings, the Commission ought take into account the fact that both matters are proceeding together, and so the issues that need to be contemplated when one applies the tests of apparent relevance and the like for the purposes of subpoena, one needs to have regard to issues in both cases.

PN777

Nextly, the question - I should say I raise that at the outset because the correspondence from Harbour City Ferries seemed to suggest, or at least seemed to suggest, that their objection was only taken in relation to matters that arose in the scope order application, and I will be wrong about that but when coming to consider the subpoena and the relevant tests, which I'll come to in a moment, one needs to have regard to both. Now the Commission would be well familiar with the tests. I don't intend to labour the relevant principles. There are four simple points.

PN778

Firstly it falls to my client, being the issuing party, to identify the legitimate forensic purpose for which the documents are sought. We did that in our correspondence to the Commission on 24 August. It's to obtain documents which will be used for the purposes of - or I should say may be used for the purposes of evidence in the proceedings, and otherwise for cross‑examining persons who are likely to give evidence in the proceedings, in particular Mr Moy who has already put on a statutory declaration which deals with certain relevant matters. Secondly, my client has to show how we say the documents are of potential relevance to the issues in the proceedings.

PN779

Now there are a great many formulations about the test of relevance. You'll see in many decisions over time that potential relevance, apparent relevance, throw light on the issues in the proceedings. Suffice it to say the Tribunal ought not be excessively prescriptive in identifying relevance. It is apparent relevance, potential relevance or if the documents are seen to be able to throw light on the issues in the proceedings that is enough. Thirdly, a party can never use a summons as a substitute for discovery, as it's often said, as a fishing expedition. What does that amount to?

PN780

In substance you can track it back if the Commission has spare time, but you'll go back to the judgment of Jordan CJ and the Commissioner for Railways v Small back in 1938. In essence the question is whether or not someone is purporting to use a summons to trawl through the documents of the other side to discover if they have a case, rather than to assist in proving one that they otherwise seek to mount. Finally, and again this relates to the concept of fishing, the proponent of a subpoena need not be able to demonstrate precisely what the documents will contain.

PN781

If authority is needed for that proposition, I haven't brought a copy of it I'm afraid, but I'll read the extract to the Commission. It's a decision of the Court of Appeal and one which - the Court of Appeal of New South Wales which I suspect the Commission will have otherwise have had opportunity to look at once or twice over the years. It's Waind and Hill v National Employers Mutual General Association Limited [1978] 1 NSWLR 372 at 382 and the short extract says:

PN782

A subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment -

PN783

And I interpose there. That's a judgment discussed earlier in the decision. It's a judgment about whether the documents sought relate to an issue in the proceedings rather than a particular factual subject:

PN784

- does not involve the making of such a judgment. It does not follow however that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena or even a subpoena in general terms amounts to the use of the subpoena for the purpose of discovery. To state it does involves a misconception of the different functions of discovery and of a subpoena for production.

PN785

To that I would add the observations of Hunt J with whom Carruthers and Groves JJ agreed in R v Saleam [1989] 16 NSWLR 12 at 22 where the Court of Appeal said it's perfectly proper to see a document produced on subpoena in order to ascertain the information which it contains for legitimate use in the trial. That is using the document during and for the purposes of the trial. In summary, that is a legitimate forensic purpose. Now in the correspondence to the Commission's Chambers requesting the issue of summons my client indicated that it would be arguing on the agreement approval application, that the Commission cannot be satisfied that the scope was fairly chosen and otherwise that the Commission cannot be satisfied that the 2015 agreement was genuinely agreed.

PN786

As I say, you've got to take those matters into account as well as the matters which arise in the scope application. The documents sought, in my respectful submission, will throw light on the issues in each of the two proceedings and what I propose to do is briefly address the paragraphs in the summons by reference to the issues, at least in general terms, in order to demonstrate why we say they are of apparent relevance and why we say they will throw light on the issues in the proceedings.

PN787

Firstly, paragraphs 1 and 2, the only material difference between the two is the timeframe. Now the Commission is already aware of the history of bargaining between HCF on the one hand and the three unions on the other. The fact that there was a single bargaining unit and that it, to use a general term, the relationships amongst those that formed that single bargaining unit deteriorated over time, and at a point in the bargaining during 2014 an agreement was reached between the MUA on the one hand and Harbour City Ferries on the other that was no supported by either the AMOU or the AIMPE. None of that's been controversial to date so documents of the sort which are identified in paragraphs 1 and 2 are not simply a fishing expedition, we know it exists, we simply want to see its terms and the timing will also be of significance.

PN788

THE COMMISSIONER: Why do you break it up in that fashion?

PN789

MR HOWELL: Really for ease - well, firstly because my friends might well argue about the time periods and whether or not either of the two - arguments about legitimate forensic purpose and arguments about apparent relevance could be different depending upon the timeframe, is the short answer. If we'd simply said any agreement at any time between X and Y there might well have been an argument about its breadth, there might well have been difference sorts of argument which would be run.

PN790

THE COMMISSIONER: I see, so you're sort of - you're putting it into two time periods in case - you're predicting an argument of resistance to perhaps one of the time periods.

PN791

MR HOWELL: Right, and that's precisely the same reason we've done what we've done in paragraphs 3, 4 and 5, which I'll come to in a moment. But just addressing 1 and 2 for the moment, the evidence showing or documents showing the terms of any such agreement and the timing of any such agreement may throw light on whether or not firstly the scope in the 2015 agreement, the agreement which the Commission's going to be invited to approve was fairly chosen.

PN792

For example, if it was shown that prior to the issuing of the NERR on 18 May 2015, which is the date on which the NERR was issued post the Full Bench, so chronologically to refresh the Commission's memory of what happened in the earlier hearing. Her Honour Deputy President Booth approved - sorry, I'll withdraw that. An agreement was reached between HCF and the MUA in late 2014. It was put to a vote on 10 October 2014. It was voted up. An application was made to the Commission, Booth DP approved the application, made the agreement as it were or approved the making of the agreement. The AMOU appealed that decision, the Full Bench published its decision on 15 May, Friday 15 May, and on the following Monday, 18 May, Harbour City Ferries promulgated a notice of employee representational rights purporting to seek to negotiate an agreement with a different title to that which had been the subject of discussion over 2014. One will then see discussions of a kind which ensue thereafter until the vote which ultimately took place on 30 July.

PN793

Now returning then to paragraphs 1 and 2 in the summons. If the Commission - sorry, I withdraw that. As I say, the documents may throw light on whether or not the scope of the agreement for the 2015 agreement was fairly chosen. If it was shown that prior to the issuing of the NERR on 18 May and prior to the efforts of the AMOU and the AIMPE to bargain a different scope, if it was shown or if it could be shown that there was an in principle agreement between the MUA on the one hand and HCF on the other, the alpha male of the bargaining group, if I can put it in that way, that may throw light or it might influence the Commission in whether it is satisfied that the reasons given by HCF for the selection of the coverage in the 2015 agreement; a) should be accepted and ultimately whether or not they were fairly chosen.

PN794

The terms of any such agreement and the timing of any such agreement again may throw light on whether or not Harbour City Ferries has engaged in good faith bargaining, in relation to the 2015 agreement which bargaining commences we would say on or around 18 May when the NERR is issued. The NERR purports to relate to a different agreement to the one that was negotiated in 2014. We say whether or not Harbour City Ferries has engaged in good faith bargaining with us is potentially a relevant consideration under section 188(c) of the Fair Work Act, and if authority is needed for that proposition, whilst it wasn't squarely determined the Full Bench in Philmac - P-h-i-l-m-a-c - [2011] FWAFB 2668 at 7 confirmed that it accepted at least tentatively that whether or not there had been good faith bargaining may be a relevant consideration of the 188(c).

PN795

The Commission of course must be satisfied that there is no other reasonable basis for concluding that the agreement was not genuinely agreed, that's something which arises independently of the arguments of the respective parties. This is material that is of apparent or potential relevance to section 188(c), we would say. But also, the terms of any such agreement between the MUA and HCF and the timing of any such agreement may be relevant to an assessment of whether the scope order sought by the - sorry - may be relevant to the issues which would arise on the scope order sought by the AMOU, in particular whether or not HCF has engaged in good faith bargaining.

PN796

Now that's not a matter which directly arises under section 238(4), the Commission doesn't need to be satisfied about the conduct of other bargaining representatives. It needs to be satisfied about the conduct of the AMOU as a bargaining representative. But nonetheless, the conduct of other bargaining representatives will be relevant, in my submission, to a consideration of whether at least two of the statutory criteria under section 238 can be met, in particular 238(4)(b) and (d). That is to say whether or not the making of a scope order would promote fair and efficient conduct of bargaining and whether or not it's reasonable in all the circumstances to make the order.

PN797

So again, documents showing the terms and timing of any agreement between the alpha male bargaining representative on behalf of employees and the employer Harbour City Ferries may be of apparent relevance to the issues in the proceedings, and at the very least the three ways that I've already identified.

PN798

Can I then address briefly paragraphs 3, 4 and 5. Now in each of these paragraphs the documents which are sought, with one exception, relate to documents in relation to the negotiations between Harbour City Ferries and the MUA. Again, we've identified in three separate paragraphs the substance of what is sought is the time, it's the timing or the time period which is accommodated which is different, and again that's done in anticipation of objections which might be taken to the material that fundamentally the apparent relevance to the negotiations is the same for each of the relevant time periods we would say.

PN799

It will come as no surprise to the Commission that part of the case that the AMOU will be advancing on the agreement approval application is that Harbour City Ferries and the MUA in 2014 and again in 2015, after the issuing of the NERR on 18 May, have been negotiating about an agreement to replace the 2012 agreement without including bargaining representatives from the AMOU and the AIMPE. It's not a fishing expedition, we know that negotiations were ongoing between the MUA and the HCF, that the AMOU at least, leave aside the AIMPE for one moment, wasn't privy to over the course of 2014. We know that from some emails which were sent to us by the MUA which the Commission's already seen, they're already in exhibit 1 in the earlier interim hearing.

PN800

There are others which the Commission will come to see when the evidence is filed in these proceedings, but suffice to say it's not a fishing expedition, we know these negotiations were happening and in any event I should say, and this shouldn't be controversial, but in an affidavit which was sworn by Mr Moy in the earlier proceedings before Booth DP, Mr Moy described the dates on which a number of meetings were held between Harbour City Ferries and one or more of the bargaining representatives which itself and in terms confirmed that there were meetings outside of the single bargaining unit, and apparently from what we're told by the MUA in correspondence with the Commission's Chambers there seems to be a very significant volume of correspondence.

PN801

Now we say that communicating or negotiating with - not communicating, negotiating with one of the bargaining representatives on behalf of the employees behind the back of the other two is a breach of the good faith bargaining requirements and is a relevant matter for the Commission to consider under section 188(c) of the Act in relation to the agreement approval application.

PN802

We also say that it is - again the test only being one of apparent relevance, that it might throw light on the issues in those proceedings and that is enough. Evidence of the negotiations is also apparent relevance to an assessment of whether a scope order will promote fair and efficient conduct of bargaining, whether it's reasonable in all of the circumstances for the Commission to make the order. Can I then turn to paragraphs 7 and 8 of the - sorry, if you can bear with me for one moment - of the summons on Harbour City Ferries, which doesn't apply to the summons to the MUA and relates to documents in relation to the decision of Harbour City Ferries as to the scope of a proposed enterprise agreement to replace the 2012 agreement.

PN803

Again the timeframe is the only material difference between paragraphs 7 and paragraphs 8. Self-evidently those two paragraphs are directed towards the fairly chosen question, which is a matter inevitably arising under an application - sorry, inevitably arising in the agreement approval application. Section 186(3) and (3A) make it a relevant consideration for the Commission. Now the starting point is to appreciate that assessing whether or not the coverage of an agreement has been fairly chosen falls to be determined at the time the choice is made.

PN804

The two timeframes which we've identified in paragraphs 7 and paragraphs 8, firstly in relation to paragraph 7 that relates to the period of time where discussions commenced back in 2014 and the first NERR - the NERR which was ultimately found to be an invalid NERR by the Full Bench back on 15 May 2014 - was issued. Now we don't apprehend there to have been any change in the scope between then and now. We presume that the reason the decision - the reason the scope was determined back then will be the same as the reason the scope was determined now, but we want the opportunity to test that. It's a matter about which the Commission must itself independently be satisfied.

PN805

In any event Mr Moy has deposed in clause 2.2 of the employer's statutory declaration sworn in support of the agreement approval application that this group was chosen because they - and to quote from their statutory declaration, "They perform operational maritime activities across the business" and because they have been covered by a single enterprise agreement since 2009. A similar statutory declaration was prepared in relation to the 2014 agreement by a person who is now a former employee of Harbour City Ferries. It wasn't identical but it was substantially similar.

PN806

Now Mr Moy doesn't say when Harbour City Ferries made the decision about the coverage in the 2015 agreement, nor does he say what he means by operational maritime activities. Part of the AMOU's case will be that those covered by the 2015 agreement do not all undertake operational maritime activities and there is certainly no community of interest between the diverse classifications which are to be covered. There are between some, but not others. Turning to item 8 of the Harbour City Ferries summons, 15 May 2015 is the date the Full Bench handed down its decision quashing the approval of the 2014 agreement and confirming it would not be approved.

PN807

The following day, 18 May, the NERR is issued and as the Commission has already heard, over the course of days and weeks that followed the AMOU and the AIMPE sought to negotiate a different scope. The documents sought in paragraphs 7 and 8 go to the question of fairly chosen. They will throw light on the issue of when the decision was made and why it was made, and it will support the case - sorry, they are sought in order to support the case brought by the AMOU that the coverage in the 2015 agreement was not fairly chosen and in addition - sorry, your Honour, bear with me for one moment.

PN808

Yes, there is one additional aspect to the case which the AMOU will bring in the agreement approval application which would also render the documents at least in paragraph 8 of apparent relevance. Section 188(b) requires the Commission to be satisfied that Harbour City Ferries has complied with section 181(2). That requires the Commission to be satisfied that employees were not invited to vote on an agreement until at least 21 days after the issuing of an NERR and, as the Commission would appreciate, the Full Bench in Peabody Moorvale and in the earlier Full Bench proceedings arising out of the 2014 agreement between our respective parties confirmed that by an NERR the Act is talking about a valid NERR.

PN809

A valid NERR includes a description of proposed coverage. An NERR was issued on 18 May. It did include a description of coverage. The AMOU will however contend that it was not an accurate description of the proposed coverage. Indeed it was a misleading description of the proposed coverage, and as such Harbour City Ferries has not complied with the formal requirement of section 174(1A). The NERR that was issued was invalid and in consequence the agreement cannot be approved, as the Full Bench earlier accepted. Documents which relate to the decision of Harbour City Ferries as to the scope and the timing compared against the existing NERR that was issued on 18 May will be of apparent relevance to that case.

PN810

If we can show - and we anticipate we will be able to show - that the NERR when issued did not include - sorry, I withdraw that - did not accurately describe the proposed coverage then the NERR was not in proper form. It did not meet the statutory requirement and indeed was misleading. So we say they are of apparent relevance. We have reason to believe that documents recording the decision exist. That is to say it's a reasonable inference from the fact that there must have been a decision and it must have been directed towards certain things. Indeed Mr Moy says in his statutory declaration that there were reasons for the decision having been made. It's not a fishing expedition in that sense. There's a legitimate foundation to seek the documents and we say they are of apparent relevance. Those are our submissions.

PN811

THE COMMISSIONER: As I understand it, that the position in terms of there being practical compliance, and I think we've had some difficulty here with the way in which this proceeding had to be scheduled compared to when the summonses were issued. But nevertheless as I understand it there has been an indication from the MUA that there's some considerable volume of material and it seems to suggest that there might be a suggestion that the issue of whether there's an onerous burden being placed upon one of the - one in particular - of the parties that's the subject of the summons might seem to arise. But even so, then I think there has been a suggestion that to the extent that they have some difficulty they would nevertheless be able to comply by tomorrow or something.

PN812

MR HOWELL: My recollection of the correspondence was they can comply in some respects but not all I think.

PN813

THE COMMISSIONER: Right.

PN814

MR HOWELL: I think it was that in essence.

PN815

THE COMMISSIONER: But in any event you don't want to say anything about that particular aspect of whether some of this is - perhaps if there are 2500 documents or something, that that might be a bit onerous?

PN816

MR HOWELL: The starting point is it's not clear from the MUA's correspondence what, if any, particular paragraph of the summons is said to be onerous. One has to assess questions of whether or not a command, that is to say a summons, is onerous by reference to that which is said to make it onerous, and it's not entirely clear which one they say is or isn't; and the debate about whether the obligation to comply with paragraph X or paragraph Y of the summons is onerous may well be different depending upon which it is said is giving rise to this massive volume of paper. We simply don't know. You can't just say, "Oh well, look there's a whole bunch of stuff in this summons and therefore it's just all too hard".

PN817

That's not a proper basis upon which to (a) advance an argument about the command is onerous or, with respect, to determine that a command is onerous. One has to identify what it is which is said to create the onus or obligation in order that one can carry out the balancing exercise required, balancing between what is necessary in order to achieve justice between the parties and otherwise to ensure that someone is not pressed to meet an obligation which is not reasonable. Now it's not clear what they say in the summons is giving rise to that particular difficulty. For example one would have difficulty understanding how paragraphs - if I turn to the summons on the MUA, how could paragraph 1 or 2 possibly create an onerous burden?

PN818

THE COMMISSIONER: My point here was more to the case of - - -

PN819

MR HOWELL: Practicality.

PN820

THE COMMISSIONER: Yes, and that you have to give I think some degree of credit to the MUA who say - and before the time for answering the summons is met - "This is our position which we're looking at all of this. There's a big volume of material. We can't get it in in time but we're doing the best we can, and we might be able to have this completed a day or two after what the summons said". Now the response that might emerge from that is "Look, we think the MUA is doing its level best to comply and so we don't take any issue with that, and we'll see what emerges from that and we're quite content for you, Commissioner, to issue another date by which compliance should be achieved", early Monday or Tuesday or something.

PN821

I would have thought that was the practical way to deal with them. Harbour City Ferries well, nothing from what I can gather like that has occurred. We haven't got any material nor have we got any explanation, from what we can gather, saying "We're trying to comply as best we can and we can't within this timeframe" or whatever. So your position with Harbour City Ferries I might say, you know, gives rise to a degree of concern. But I would have thought you might have come along and said, "Well, look, as far as the MUA is concerned we think they're doing their level best and all we need from you, Commissioner, is a date by Monday or Tuesday and we'll see what emerges".

PN822

MR HOWELL: Commissioner, my submission is we think the MUA is doing their level best and we - I'm being facetious. Commissioner, I wasn't addressing the practical question. I was addressing the starting point, which was as I understood the MUA's submission - sorry, I withdraw that. If I understood the MUA's correspondence, it was going to be directed towards a contention that the summons ought be set aside because it was oppressive. If I am wrong in that understanding then what I have just said to you will not be an issue that you have to grapple with.

PN823

When it comes to the practical question of production, if the MUA can do what it can to comply with the form of order by tomorrow, and then if it cannot comply with all of it the Commission makes a further date, or gives it a further opportunity to finally comply, we would have no difficulty with that whatsoever provided all of the parties - and of course the Commission will appreciate that will necessarily impact on our ability to comply with the direction that everything comes on by 4 pm tomorrow.

PN824

THE COMMISSIONER: Yes, well that's another - yes, the consequences of all of the delay are another - - -

PN825

MR HOWELL: Quite, and so I didn't intend to be critical of the MUA in any way in what I was saying. It was simply to address what we had apprehended would be the submissions put in light of the observations about oppression. But if the question is simply one of practicality, one will have to deal with the practical questions as best they can in all the circumstances. Some compliance would be appreciated as soon as practicable simply in order to ensure that the hearing date is not put in jeopardy in any way, and we would not have any difficulty with the Commission accommodating that sort of practical issue, that sort of practical consideration, in any way it thought was appropriate.

PN826

THE COMMISSIONER: All right. Thank you.

PN827

MR HOWELL: May it please.

PN828

THE COMMISSIONER: Mr Fallone do you want to say anything about this? You're not actually served with any requirement, are you?

PN829

MR FALLONE: No.

PN830

THE COMMISSIONER: You have sort of escaped all of this.

PN831

MR FALLONE: I'm attending just on behalf of the institute as we're a bargaining representative in these proceedings and we have our subsequent proceedings dealt in conjunction with the AMOU's application. I've got nothing to add to the legal argument to producing the documentation. All I'd like to say is if there is nothing to hide and there was no deal done then there's no need to waste time in trying to subpoena the documents. Just provide the documents and we can move on with the submissions.

PN832

THE COMMISSIONER: All right. Well, perhaps I should hear from Mr Mahendra because I think that the primary submissions of Mr Howell have been directed towards you.

PN833

MR MAHENDRA: I don't know that that's entirely correct, Commissioner. I think Ms Doust also objects to the order for production.

PN834

MS DOUST: I do. I do, just to be clear, Commissioner. The MUA says that the order for production should be set aside or alternatively that categories of documents caught by the order should be struck out. Can I say in relation to the last issue that you raised, Commissioner, in relation to the production of documents, I have attempted to ascertain how much work will be required to fully comply with the order for production. We're just not able to say at this stage. At this stage what we have is a pile of documents which on my instructions is currently one metre high, and we don't know how much longer it's going to take to extract all of the relevant documents; and that's something which one wouldn't be surprised about when one looks at the scope of the order for production or the schedule thereto.

PN835

I know my friend says "Well, we've cut it into time periods to meet any objection" and the like. Effectively what's done in the order for production is to ask for every bit of correspondence concerning negotiations for the period from February 2014 to shortly prior to or about the time at which the vote was taken. So that's really what's sought here. It is effectively every bit of correspondence, every time there has been an email enclosing a marked up copy of the enterprise agreement, every time there's an email saying "Hey, you know, shall we meet Thursday?" "Oh look, I'll have to find out whether my people are available Thursday. Could you do next Tuesday?" "No, what about the Friday before?" All of that is caught by the terms of the call for the correspondence in this order to produce.

PN836

Now can I come back to that issue, because I wanted to address the question of the burden that's posed by the order to produce last, because that question might be affected by the resolution of the issues which arise in relation to the question of the legitimate forensic purpose that arises in relation to the identified categories of documents. I just wanted to start, Commissioner, by outlining the issues so far as the MUA sees them in the matters that have been listed for hearing on 18 September. Can I just say so far as the application for approval of the agreement is concerned the only issue which currently arises on the material which is before the Commission, and the usual way in which one measures the adjectival or apparent relevance is by reference to the pleadings.

PN837

In the Commission one can look at the formal documents before the Commission and the like. But what we see as the issues arising are these. There's an issue raised in the form F18 which has been filed by the AMI - I'm sorry, AIMPE.

PN838

THE COMMISSIONER: AIMPE.

PN839

MS DOUST: Yes, if I can use that, that might be easier for me.

PN840

THE COMMISSIONER: That's a little curious in itself because it's opposed, but the statutory declaration wasn't read apparently.

PN841

MS DOUST: I'm sorry? Yes, but that document shows us that the issue which arises on AIMPE's case, and this is at the bottom of the first page where there's some material filled in, is the question of fairly chosen. AIMPE seeks to object, "We do not believe the group is fairly chosen". So that issue is raised by AIMPE and, in the submission of the MUA in this matter, nothing in the material which is sought by the AMOU would throw light on that question. Can I just say I just note this; there was an indication by my friend on 19 August as I read the transcript that the AMOU was to file an F18, which is the appropriate way to notify the Commission and the other parties as to the issues which arise on a question of approval.

PN842

That hasn't been done yet. We're at a loss to understand why that hasn't been done. But what we say is the most, the furthest that the AMOU has gone in articulating its grounds before the Commission, in my submission, is what appears in the transcript on the 19th where the AMOU appears at that stage to embrace the argument about fairly chosen. I don't know whether you have a copy of the transcript from that date, Commissioner, but the reference in relation to the intention of the AMOU to file a form 18 is at PN722 there too.

PN843

So as we apprehended it, coming here today, that was the only issue that had arisen in relation to the question of approval. Can I say so far as the scope application is concerned - and I'll ask you, Commissioner, just to turn up that scope application if that's convenient. What we have there at clause 20 of the scope application - that's on the second page of the schedule that's attached to the application - is first of all a claim for an order pursuant to 238(7) or section 238(7) requiring Harbour City Ferries to bargain for an enterprise agreement with that proposed coverage, masters and inner harbour engineers. That's one thing.

PN844

20.4 is about restraining the vote. So there's obviously now no utility in 20.4 so far as the scope application is progressed. What the MUA does say in relation to the scope application is this; it must necessarily fail, the reason being that there's no indication in the evidence of Mr Wydell that written notice of the sort that's contemplated by section 238(3)(a) of the Fair Work Act was given to the bargaining representatives for the agreement, including the MUA. So there was no notification to the MUA of the concerns in the matter which is contemplated by section 238(a).

PN845

So that's an issue which is going to have to be overcome by the AMOU in proceeding, and the other issue that I say is that we'd submit that the documents that are sought by the order wouldn't reasonably be expected to throw light on the issues arising in the scope application. So that's the overview of how the MUA sees the order to produce. Can I hand up to the Commission - I wanted next to go to the decision of the Commission in the Australian Nursing Federation case which has a useful summary of the principles. I've opened it to paragraph 13 and I've given my friends a copy of this. Commissioner Jones has picked up a useful summary of the relevant principles in relation to the issue of a subpoena. My friend has gone to many of these. One can see at (d):

PN846

The documents for production must be identified with reasonable particularity. The category of documents must not be so wide as to be oppressive.

PN847

(e):

PN848

The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case.

PN849

That's important, and I'll come back to that in due course because when one measures the order for production against the AMOU's case as currently articulated, in my submission it falls short and falls into that category of trawling through and trying to get everything that is available with a view to seeing whether there might be some argument out there, some argument available. At (f) the Commissioner says:

PN850

A test for relevance does not require that a party demonstrate direct relevance.

PN851

There's no contest about that and at (i) there's a reference to the test in Cosco Holdings, the use of this phrase "adjectival relevance" which is one other way to describe it. There's a question whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings, and again the issues are the issues that have been defined by the parties in the way in which their case is articulated.

PN852

THE COMMISSIONER: Ms Doust this would be nice if we were dealing with ordinary litigation where there might have been a whole variety of evidence and pleadings and things that were all neatly put before the Tribunal beforehand.

PN853

MS DOUST: Yes. Yes.

PN854

THE COMMISSIONER: But this has been done, if you like, on the run.

PN855

MS DOUST: Yes. Yes.

PN856

THE COMMISSIONER: We had the scope application having to be dealt with in terms of the interim decision within a matter of days.

PN857

MS DOUST: Yes.

PN858

THE COMMISSIONER: There was broad agreement that the matter should try to proceed, and I think your client was one of those that supported the idea of an abbreviated timetable.

PN859

MS DOUST: Yes.

PN860

THE COMMISSIONER: So a lot of this sort of approach is all well and good when there's a Judge that's sitting down with a case that has been fully assembled and someone has issued a subpoena.

PN861

MS DOUST: Yes.

PN862

THE COMMISSIONER: This is a very different set of circumstances in that regard.

PN863

MS DOUST: Yes.

PN864

THE COMMISSIONER: So I accept the basis that you advance these authorities, but I think those authorities have to be considered in the context of the nature of these proceedings.

PN865

MS DOUST: I accept that, Commissioner. I accept that absolutely. But what I say is that ultimately one looks in the material which is before the Commission to see the way in which the case is advanced by the AMOU, by the party seeking the production of the documents. It's relevant, in my submission, that no F18 has been filed and no grounds have been articulated. The MUA has done its best to deal with what it's trying to piece together from the bits and pieces that the AMOU has given us in the circumstances to understand those grounds, and it's dealing with that as it arises. But there is the important point to be made which is that that distinction between searching for documents relevant to a case that's already articulated and doing an all‑encompassing trawl of every document that exists from the point at which this process unfolded, and that's really what is - - -

PN866

THE COMMISSIONER: But considering it in that sort of context, let's look at the first one and two against the MUA.

PN867

MS DOUST: Yes.

PN868

THE COMMISSIONER: Are looking for one document.

PN869

MS DOUST: If you just excuse me for a moment, Commissioner.

PN870

THE COMMISSIONER: And a document which goes to this - well, the argument here is about broadly speaking the question of fairly chosen in the context of whether the Commission would be satisfied that the agreement was generally agreed to.

PN871

MS DOUST: Yes.

PN872

THE COMMISSIONER: Now the matter hasn't proceeded in the ordinary way. That's very obvious.

PN873

MS DOUST: Yes.

PN874

THE COMMISSIONER: But what we're really getting down to is an argument from the perspective that is the AMOU saying that the group that voted and made the agreement is being challenged.

PN875

MS DOUST: Yes.

PN876

THE COMMISSIONER: As being fair.

PN877

MS DOUST: Yes.

PN878

THE COMMISSIONER: And all those things that go with that broad description of fairness.

PN879

MS DOUST: Yes.

PN880

THE COMMISSIONER: "This is not a fair group that voted on this". That's their argument in a nutshell.

PN881

MS DOUST: I appreciate that and what we say is one looks to the way in which that case has been advanced. The argument as to fairly chosen has been advanced, not surprisingly given the terms of subsection (3)(a) of - sorry, section - - -

PN882

THE COMMISSIONER: 186 isn't it?

PN883

MS DOUST: 186.

PN884

THE COMMISSIONER: Yes.

PN885

MS DOUST: Yes. Thank you, Commissioner.

PN886

THE COMMISSIONER: Yes, the numbers sometimes start - but yes - - -

PN887

MS DOUST: It's blurred into one. But can I just make this point, Commissioner. The way in which this matter is advanced, and it's all through Mr Wydell's statement, is that this is a group that is operationally distinct. There is a claim harking back to the history of the enterprise agreements that prior to 2009 - notwithstanding the fact that we have been party to enterprise agreements in 2012 and 2015 where all of these same employees have been covered, and it was a requirement on those occasions that the group be fairly chosen just as there is a requirement now.

PN888

Notwithstanding that history it's now put that the group is not fairly chosen because it's operationally distinct. Now in my submission any communications or discussions as between the MUA and any other party cannot possibly bear on that issue. That is an issue which is addressed in some detail in Mr Wydell's statement where it talks about the respective duties and responsibilities of the masters and the - sorry, the inner harbour masters and the engineers. So, going to some sort of perceived steps or agreements or discussions in the bargaining, in my submission, doesn't touch on that case which is the AMOU's case as it is currently advanced.

PN889

All it's doing now is really saying, "Give us everything which has gone back and forth between the MUA and HCF in relation to these negotiations and we'll try and call it in aid in one or other of these criteria. We'll try and shape it to provide a basis for objecting to the approval or perhaps getting its scope order", and using that as a de facto basis to oppose approval of the agreement. So that's what is happening here and we say that the material, any material caught by these categories, could not possibly go to that fairly chosen question.

PN890

THE COMMISSIONER: But if the group - well, it's not just confined to fairly chosen either because of course - - -

PN891

MS DOUST: I accept that.

PN892

THE COMMISSIONER: - - - 188(c) which talks about generally agreed can be other reasonable grounds. Now the argument here is one that has been advanced that one of the larger union in the composite group has made arrangements with the employer and those are reflected in a document.

PN893

MS DOUST: Yes.

PN894

THE COMMISSIONER: The smaller groups or the smaller group that opposes all of this and challenges it and says, "We think there's a legitimate forensic purpose and it's relevant for us to look at what the larger group did with the employer".

PN895

MS DOUST: Yes.

PN896

THE COMMISSIONER: That sounds reasonable to me.

PN897

MS DOUST: Well, keep in mind that what is sought in category 1 for example is material between 14 February 2014 and 10 October 2014. Now that is a period which concluded with the taking of a vote where a majority of employees approved the making of the previous agreement. What has happened subsequently is that that agreement was approved and then it was overturned purely on the question of whether or not the notice of representational rights adequately reflected the scope of the agreement. So no other basis or ground was identified.

PN898

THE COMMISSIONER: One is looking - - -

PN899

MS DOUST: Yes.

PN900

THE COMMISSIONER: Item 1 is looking for one document and one document alone.

PN901

MS DOUST: Yes. It refers to:

PN902

Any agreement in relation to the terms and conditions of employment of employees to be included in a proposed enterprise agreement.

PN903

THE COMMISSIONER: Yes.

PN904

MS DOUST: Bear in mind there has been negotiations going back to 14 February between all of these parties.

PN905

THE COMMISSIONER: But we're not talking about draft 1 or two or three. We're looking at the agreement document, whatever formulated - assuming there is one, I don't know. But there seems to be a suggestion that there is one. There's some document which the MUA and Harbour City Ferries have signed off on and the first version of that - and it might be just repeated after the failed - after the Full Bench decision.

PN906

MS DOUST: Yes.

PN907

THE COMMISSIONER: But the first version of that is caught in one.

PN908

MS DOUST: Yes.

PN909

THE COMMISSIONER: And if there is a second version of it it's caught in two, and so it's looking at nothing more here in each case, at one document as I apprehend it.

PN910

MS DOUST: Well, as I read one I don't understand that it is so confined. It appears to me that that is broad enough to capture any document that contains an agreement as to any term and condition of employment. So if there's a collateral email that says, "Look, what about are your members happy with a two per cent increase on the dirt allowance?"

PN911

THE COMMISSIONER: I didn't read it in that fashion. I read it as being the finalised position.

PN912

MS DOUST: Yes.

PN913

THE COMMISSIONER: Not all of necessarily anything else, but if there is as it says a heads of agreement or agreement in principle document, or however it's described.

PN914

MS DOUST: Yes.

PN915

THE COMMISSIONER: And that's why the terminology is important.

PN916

MS DOUST: Yes.

PN917

THE COMMISSIONER: Was there something like that which emerged.

PN918

MS DOUST: Yes.

PN919

THE COMMISSIONER: Now there may not have been, I don't know. But if there was, in connection with the nature of the case as I understand it - and I accept your criticism of the way in which the case is not nice and neatly put before us, but that's almost just a consequence of the way that these cases have unfolded in their rapid way. It's not a nice clean Court case, as I was describing before. But nevertheless if there's a document of that nature it would seem to me to be something that would be difficult to resist as being a proper document the subject of a subpoena, wouldn't it?

PN920

MS DOUST: I do. I say that it is broad and I wouldn't necessarily read it in the same confined way that you might, Commissioner. Can I say so far as fairly chosen is concerned the way in which the AMOU's case is revealed in the material it has been good enough to supply is in relation to the question of operational distinctiveness, and in my submission this can't touch on that. But as to scope can I just go briefly, Commissioner, to the issues which arise on the question of a scope application. So far as the scope application is concerned if we can just go to 238 briefly, Commissioner.

PN921

The matters that the AMOU has to satisfy in order to advance its scope application are these, so I'll just step through them one by one so that I'm making myself clear as to how the argument advances. First, it needs to satisfy the Commission - the requirements are set out in subsection (4) of section 238. The AMOU itself must satisfy the Commission that it has met the good faith bargaining requirements. That is a matter about which, in my submission, there could be no call for the AMOU to seek to compel the production of documents from the MUA. Nothing could be required of the MUA in answer to that.

PN922

The second point is this, that the making of the order will promote the fair and efficient conduct of bargaining, and I'll say something about that shortly. Third is that the group of employees within the proposed scope is fairly chosen, and again to the extent that we've seen the AMOU'case that could only relate to this question of operational distinctiveness; and the final point is it needs to satisfy the Commission that it's reasonable in all the circumstances to make the order. Now there will ultimately be a great deal of submission I would have thought on the question of reasonableness.

PN923

But can I turn then - what I think is really the fundamental issue here in relation to the scope order is this question which arises under section 238(4)(b) that the "making of the order will promote the fair and efficient conduct of bargaining". That directs the Commission to answer the question whether or not at the time it considers the question of making the order, that the making of the order would at that stage lead to more fair and efficient bargaining than there has been at the time immediately prior to the making of the order, in my submission.

PN924

It is a question which asks the Commission to look forward and, in my submission, because of the way in which events have unfolded in this matter, it would not assist the Commission to look back at February 2014 to look at any point at which the parties became ad idem about a particular term or condition, or all of the correspondence between the parties dating back to that time to determine whether at this point in time the making of an order, now that an agreement has been voted on and has to be considered by the Commission, would promote fair and efficient bargaining. That's the question.

PN925

So the question is now would there be more fair and efficient bargaining as a consequence of making the order and, in my submission, when one goes back as far as February 2014, some 18 months ago, the Commission's not going to be assisted by going through all of that history, including the history between February and October 2014 when the AMOU was still part of the single bargaining unit and had not at that stage articulated any desire for a separate agreement with its own scope.

PN926

That's not going to assist the Commission to know whether in the circumstance it's confronted with in September of 2015, whether fair and efficient bargaining will be promoted by making an order that the agreement having been made, Harbour City Ferries should now go off and engage in bargaining with the AMOU. So that's my fundamental submission, that the real question at issue in the scope application about the promotion of fair and efficient bargaining isn't a backward looking question. It's something which is prospective in nature.

PN927

THE COMMISSIONER: But looking forward sometimes is assisted by finding out what preceded it.

PN928

MS DOUST: And assuming that were right, one would have to - in my submission if one was going to look as the AMOU wishes to at all of the correspondence between Harbour City Ferries and the MUA concerning the negotiations, just looking at category 3, "for the period between 14 February 2014 and 10 October 2014" one would have to, in my submission, be a little more precise and make some - - -

PN929

THE COMMISSIONER: Yes, but that would get into a different area. But what I'm having difficulty with is being convinced that one or two interpreted to mean at best one document in each instance, at most, the finalised agreement, would not be something that should be - not a double negative. That something of that nature is not properly a matter that should be the subject of the subpoena. I'm having difficulty being convinced of that.

PN930

MS DOUST: In my submission one wouldn't read one and two in the way that you've indicated, Commissioner. If what's proposed to occur is you're suggesting there might be some alternative way in which one and two might be framed then that - - -

PN931

THE COMMISSIONER: If I make it clear that in my view it's confined to a single document.

PN932

MS DOUST: No, I appreciate where you're going, Commissioner, but what I'm saying is that from the MUA's point of view that really changes what the call is, and if you're suggesting that we should agree to those terms that's a matter about which I'd want to have an opportunity to get some instructions.

PN933

THE COMMISSIONER: All right. I accept all of that, yes. All right, so let's move on to three then.

PN934

MS DOUST: Well, going to three and can I just highlight some aspects of three, four and five. If one looks at three, if one looks at subparagraph (b), Commissioner. This is broad enough to include any correspondence concerning the negotiations - sorry:

PN935

in relation to the negotiations for a proposed enterprise agreement.

PN936

That's for 14 February to 10 October 2014. The next is, "Any correspondence in relation to negotiations" for 10 October to 15 May. The next is any correspondence - sorry, in relation to what was to happen. Can I just deal first with three and four. Really what that seeks is any bit of correspondence that has occurred in the enterprise bargaining.

PN937

THE COMMISSIONER: Yes, it does seem very broad.

PN938

MS DOUST: Now if one is going to make an allegation about fairness and efficiency, in my submission that should be identified and any category identifying documents sought to be relevant to the question of how a scope order issued now might promote fairness and efficiency would need to be tailored to the particular unfairness or inefficiency that's alleged. For example we say that it was very inefficient negotiating with the MUA because their officers would never be available for meetings, and so we need to have a special scope all of our own so that we can get the bargaining done and dusted.

PN939

Then in my submission there should be a call for documents which relates to that, and not just what this is, a call for every letter, every email that has gone back and forth between the MUA and the employer from day 1 to day - I think it's five hundred and - well, it could be more, it could be 600-odd. So 600‑odd says, any correspondence concerning bargaining, effectively. Now in my submission that is just too broad and the Commission wouldn't entertain making an order and that's why, Commissioner, we're in a position where we've now got a metre high of things that have been printed out, and the Commission would be well aware that when one is printing out emails one needs to go and open up the email, print it, open up the annexure, print it, open up every single annexure, print them all.

PN940

It's not something that can be easily just all dropped and produced in that fashion. Now that leaves the MUA in the circumstance where it has to obtain all of that material but then also review it for the purpose of any claim, and that's why, Commissioner, it's a matter that has taken as long as it has. So far as the issue of the method of voting is concerned I say again - I know I'm sounding like a broken record - there's no F18 identifying any collateral challenge to the form of voting or anything of that nature, but it would appear to me that the question of voting is an - whether or not a particular form of voting is a form of voting which is one which gives rise to a genuine agreement, is a matter which can be made out without asking for any other person's documents which touch on that question.

PN941

Again, if one looks at paragraph 5, that's a call for any correspondence between the employer and the MUA in relation to what was to happen in relation to a proposed enterprise agreement to replace the Sydney Ferries Maritime Enterprise Agreement 2012, following a decision of the Commission in that period between October and 15 May 2015. Can I say again this is not anything which could assist the Commission to determine the fairly chosen argument as it is advanced. It doesn't go to that question as to whether or not the inner harbourmasters or engineers are an operationally distinct group and, for that reason, require their own scope of an agreement.

PN942

So far as the issue which arises relevant to the question of scope, which is whether or not fair and efficient bargaining would be promoted, in my submission this is not a call for documents which is directed to identifying any previous unfairness or inefficiency which might be remedied by way of a scope order now. It is simply really calling for anything as between the union and the employer over a period which is sometime distant and, on one view, events have been taken over by the issue of a further notice of representational rights on 18 May 2015. This goes back to the views or discussions that the parties had in the period prior to the question of the status of the previous agreement being resolved.

PN943

Now, what has happened on 15 May is that the full bench made its decision about the Deputy President's decision. As a consequence, the earlier approval was set at nought and the earlier notice of representational rights was set at nought. In effect, the clock has started again and a new period has started since that time; so how whatever has been communicated in that time might touch on that question as to what is desirable now to promote fair and efficient bargaining, is not made clear on category 5, in my submission.

PN944

Can I turn, finally, to paragraph 6. My friend didn't touch on that at all. Again, the AMOU seeks copies of any correspondence in relation to negotiations, so again anything that has gone back and forth between the parties in relation to bargaining. Can I repeat my submission that so far as the documents sought concern the method of voting, it's difficult to see how that material could be relevant to any issues raised or currently articulated in the proceeding.

PN945

So far as the AMOU seeks documents concerning negotiations in general terms, could I just draw attention to Mr Wydell's statement where he alleges - do you have a copy of that statement, Commissioner?

PN946

THE COMMISSIONER: Not with me here at the moment.

PN947

MS DOUST: Just briefly, I might give you paragraph references to it. I can hand up a copy of mine, if it's convenient, for the time being. It is the statement of Mr Wydell, which I understood was 27 July 2015 and I understand exhibit 1 on the interlocutory application. What Mr Wydell says there - and I'll hand it up to you in a moment, Commissioner - is this: there was only one meeting between the HCF and the unions after 18 May. That was on 27 May. He says on 23 June 2015, the employer wrote to him enclosing the proposed 2015 agreement and he says that agreement is in substantially similar terms to the 2014 agreement.

PN948

One wonders, against the background of that recited history, how the case for the AMOU in those circumstances throws up any document or throws up any identified unfairness or inefficiency in relation to which it's necessary to obtain, by compulsion, any correspondence between the MUA and the HCF. Again, it's a lack of specificity there rendered every more clear when one looks at the history as it's articulated by Mr Wydell. Those are the matters that I wish to say in relation to the categories of documents.

PN949

Can I say, finally, if there are matters about which the Commission is of the view that it may be appropriate for an order to issue, could I ask for an opportunity to deal with those matters and take some instructions so that in the event that gives rise to any other objection or difficulty, I can have an opportunity to address that. Can I say, finally, in relation to the question of the burden that is imposed upon the MUA in responding to the order to produce as it's currently framed, it should be apparent from the way in which it is framed that it goes well beyond the scope of anything which is directed to the currently identified issues in the proceedings. That is the reason why it is such an enormous task for the AMU in complying.

PN950

On my instructions, the expectation is probably more of a hope at the moment, because it's very difficult to identify precisely how many more documents need to be produced, but I think the expectation was that it would take a week in order to get all this material together.

PN951

THE COMMISSIONER: But if 3(b) was confined to a particular sort of document, that might change things a bit.

PN952

MS DOUST: Obviously if any of these categories were so confined, that would change what we're dealing with, the equation, substantially. If you just bear with me for a moment, Commissioner. I've just managed to misplace right in front of me the document that I was looking at. Yes, if there was a confining of the term "negotiations" wherever it appears - - -

PN953

THE COMMISSIONER: If you confined that to particular documents which - I've just made a shorthand note here - reflected some form of agreed outcome as opposed to documents which dealt with, "Can you meet next week?" "No, I can't." Could you meet the following week?"

PN954

MS DOUST: Yes.

PN955

THE COMMISSIONER: All those sort of ancillary documents, but things which actually give the picture of whatever it is that's being transacted between the parties.

PN956

MS DOUST: Yes.

PN957

THE COMMISSIONER: I think that confines if significantly and puts all that other stuff to one side.

PN958

MS DOUST: It may, but, as I say, it might be a matter about which I'd wish to take instructions - - -

PN959

THE COMMISSIONER: I'm not suggesting you should agree with me or anything like that.

PN960

MS DOUST: Yes.

PN961

THE COMMISSIONER: Mr Howell might be quite upset at the proposition, but it does seem that there might be the capacity here to significantly reduce the work that some poor person would have to do and still provide information that was something that would have been quite reasonable in the circumstances.

PN962

MS DOUST: Yes. I can't add anything further than what I've already said.

PN963

THE COMMISSIONER: Okay. Thank you.

PN964

MS DOUST: Thank you, Commissioner.

PN965

THE COMMISSIONER: All right. Mr Mahendra?

PN966

MR MAHENDRA: Yes, sir. I'll try to be brief, given the time. In relation to categories 1 and 2, we - and when I say "we", I mean Harbour City Ferries - had read those categories similar to the way my learned friend had. However, if your reading of it is the one that you intend to adopt or the parties intend to adopt, Commissioner, then we can produce each of the documents.

PN967

I'm not sure if there are one or two documents, but the document that reflects what you have indicated, Commissioner. That is, no drafts, no negotiations in respect of what led to the final agreement. As I understand it, that has been provided to the other union parties, as well, in any event.

PN968

THE COMMISSIONER: It has already been provided?

PN969

MR MAHENDRA: Already been provided, as I understand it. Those are my instructions.

PN970

THE COMMISSIONER: I don't know why you would subpoenaing it, but - anyway, all right.

PN971

MR MAHENDRA: Sorry, Commissioner?

PN972

THE COMMISSIONER: If you have already got it, there is no reason to subpoena it, so we must have a mis‑communication here somewhere.

PN973

MR MAHENDRA: There must have been. In relation to the relevance of these categories, I agree with my learned friend's submissions in that absent a form 18 from the AMOU, we're in the dark as to what the pleading is. In that sense, we say the documents they're seeking in respect of the application to approve the agreement just aren't relevant to an issue that is currently before the Commission because there has been no objection taken by the AMOU. I hear what you have to say, Commissioner, but I thought I'd put my support of Ms Doust's submissions on the record.

PN974

The other submission I make in relation to relevance is to do with the factors that this Commission needs to take into consideration when it comes to determining whether a group of employees were fairly chosen. Now, what you're dealing with, Commissioner, of course, is fairly chosen in the context of two different sections of the Act. Fairly chosen in the context of the approval of the enterprise agreement itself - that is, the entire group of employees, which is a matter that Harbour City Ferries and the MUA need to satisfy the Commission of - then there is fairly chosen in respect of the scope order advanced by the AMOU where they need to satisfy the Commission that their group of employees has been fairly chosen.

PN975

In that context, can I provide you with a Federal Court decision of Siopis J. I'll provide a copy for my friends. You might have heard Mr Howell whispering at the bar table, "Not the Full Federal Court decision."

PN976

MR HOWELL: Sorry, Commissioner.

PN977

MR MAHENDRA: There is a Full Federal Court decision which dismisses the appeal of Siopis J's decision.

PN978

THE COMMISSIONER: This is an enterprise agreement with three individuals, I think.

PN979

MR MAHENDRA: Yes.

PN980

THE COMMISSIONER: Have I got the right one?

PN981

MR MAHENDRA: Yes, Commissioner.

PN982

THE COMMISSIONER: I wonder if one of them was from the AMOU, the MUA and the other AIMPE.

PN983

MR MAHENDRA: The relevant paragraph is paragraph 38, which deals with the construction of section 186(3) and what is to be taken into account when the words "fairly chosen" are used. What Siopis J says in this case is - and I'm reading from about halfway down the paragraph in paragraph 38:

PN984

In my view, the proper construction of section 186(3) is informed by section 186(3A). That section prescribes the nature of the considerations to which Fair Work Australia is to have regard in exercising its power under section 186(3). Therefore, in my view, Fair Work Australia is not at liberty to exercise its section 186(3) powers on some other basis in reliance upon the general provisions in section 578(a) of the Fair Work Act.

PN985

In other words, the general words in section 578(a) must yield to the specificity embodied in section 186(3A) in relation to the proper construction of the words "was fairly chosen" in section 186(3).

PN986

Now, the Full Federal Court did comment on this in passing, Commissioner, without actually making a finding on it or determining that issue. I'll provide a copy to Mr Howell, who is busily searching his phone for the Full Federal Court decision.

PN987

MR HOWELL: Thank you.

PN988

MR MAHENDRA: In this decision, Buchanan J makes a comment about it in obiter. It's paragraph 85, Commissioner, where Buchanan J says in the second sentence:

PN989

In my view, it is neither necessary nor desirable to attempt to be more definitive about the jurisdictional limits upon the way in which the Fair Work Commission might approach its statutory task.

PN990

This is in the context of section 186(3).

PN991

Those limits are set by the Fair Work Act, rather than by judgments of this court. It is important to recognise, however, that within any such jurisdictional limits the judgments required are ones for the Fair Work Commission and not this court.

PN992

He dismisses the appeal. Notwithstanding what his Honour Buchanan J says in obiter, I say that the comments by the primary judge in the Federal Court are ones that the Commission would have regard to in terms of the criteria it looks at in assessing whether a group of employees were fairly chosen. That does not extend to a fishing expedition for documents to ascertain whether or not a group of employees had been fairly chosen, which is precisely what the AMOU is doing in this case.

PN993

My learned friend's submissions were enlightening in respect of this issue. What he says - I'm using paragraphs 1 and was an example even though this is a constant theme throughout each of the paragraphs, although given what you've said about paragraphs 1 and 2 of the order for production, Commissioner, I accept that my submission is somewhat - should be taken in that context.

PN994

What Mr Howell said was if there is shown that there was an in‑principle agreement, then that might show that the group of employees were not fairly chosen; then that might show we have actually got a case to lodge an objection. All of this is falling squarely within what Ms Doust took the Commission to in the context of documents being relevant to an issue raised on the pleadings.

PN995

I'm reading from the decision that Ms Doust took you to, Commissioner: Australian Nursing Federation v Victorian Hospitals' Industrial Association at paragraph 13(c) - well, it's (e), actually, on my copy - the second sentence:

PN996

It cannot be used for the purpose of fishing or for the purposes of determining a preliminary question as to whether the party has a supportable case.

PN997

Now, that's precisely what the AMOU are trying to do. They don't know what these documents say. All they're trying to do is get as many documents as they possibly can in order to determine whether they've got a supportable case and for that reason alone, Commissioner, you would strike out the order. Can I just deal specifically with some of the terminology used in the categories that are being sought? You've already identified, Commissioner, the difficulty with paragraph 3. What you've suggested, Commissioner, is that that could perhaps be tailored to a specific line of documents; that is where some substantive agreement or proposals have been put.

PN998

That in itself is akin to an application for discovery. It requires the party to actually look through each document to ascertain whether it fits into that category and the same could be said for paragraphs 4, 5, 6, 7 and 8. What it requires Harbour City Ferries to do is actually read through every single piece of paper that's passed between the parties and ascertain whether or not it's actually falling within a particular category.

PN999

THE COMMISSIONER: Doesn't it work like this: you take out all the things that are just administrative, organisational, ancillary, and you leave the rest? That's how it works.

PN1000

MR MAHENDRA: If that were the case, Commissioner, what we're being required to do is actually look through and read - as Ms Doust put it - over a metre high worth of documents in order to ascertain whether or not they're administrative, fall into one of these categories, or fall into some other category that hasn't been claimed. It's a mammoth task and it is akin to discovery and it's not appropriate in the context of an order for production, which requires the documents be identified with sufficient particularity. That's all I wish to say, Commissioner.

PN1001

THE COMMISSIONER: All right, thank you. Mr Howell.

PN1002

MR HOWELL: Thank you, Commissioner. The reason there is no F18 was because we were directed to put it on by close of business tomorrow and we intend to. That was why I articulated - and if I've misunderstood the directions, that's what we had understood we were required to do; to put on our case and our evidence by close of business tomorrow. It's why I am in the correspondence with the Commission's chambers - those who instruct me articulated the basis upon which they moved the Commission to issue the orders we sought and we had assumed upon which the Commission did in fact move.

PN1003

Insofar as the scope application is concerned, the Commission has already heard - already has a substantive body of evidence before it and has already seen, read and ruled on a substantive part of the argument, in the context of the early interlocutory application, albeit it was only dealing with an application for interim orders. The case in the scope order application really boils down to this: we did - leaving aside 238(3) for one moment - my client formed the view that there was not fair and efficient bargaining proceeding as required by 238(1). It took the steps, we say, contemplated by 238(3) and we articulated the matters required in 238(4), in particular so far as is relevant to the application which will come to be made and as I articulated in my earlier submissions this afternoon.

PN1004

Now, the Commission must be satisfied that making the order will promote fair and efficient conduct of bargaining and that it is reasonable in all the circumstances to make the order. If the Commission obtained - and I should say I use the word, "if" - we know there is such an agreement. This is to say paragraphs 1 and 2 of the summons against each of Harbour City Ferries and the MUA. We know there is such an agreement - - -

PN1005

THE COMMISSIONER: Apparently you already got it.

PN1006

MR HOWELL: News to us.

PN1007

THE COMMISSIONER: All right.

PN1008

MR HOWELL: We have not seen a signed copy of the final terms agreed between Harbour City Ferries and the MUA. There were certainly heads of agreement that were exchanged between the parties earlier in 2014 but we don't have a copy of the final agreement, nor have we been told of the date that the final agreement was made. But nonetheless, we know that there is such an agreement. We have been told that there is such an agreement. It's not a fishing expedition: we know it exists. We don't know its terms and we don't know the date it was made but we know it exists. The case that we bring in that respect - sorry? Well, they're said to provide an agreement. Ms Doust was correct in her characterisation of what is sought in paragraphs 1 and 2. It's any agreement about the terms and conditions, not any agreement about peripheral stuff. 1 and 2 is not about correspondence; it's about any agreement and the reason we seek any agreement is because of the case that we seek to make.

PN1009

The case that we seek to make in relation to 188(c) and in relation to the scope order - in particular in relation to subsections 238(4) (b) and (d) - is that in a summary way three bargaining representatives go into a set of negotiations with an employer as a single bargaining unit. One of them is approached by Harbour City Ferries; by the employer. One of them does a deal with the employer and the two smaller bargaining representatives, throughout the course of the negotiations, can then no longer be heard. They are no longer - the employer is no longer bargaining in good faith with that group.

PN1010

They're not giving - to use the illustrations of bargaining in good faith from section 228(d) - they're not disclosing relevant information, for example, the final terms of any such agreement between one of the bargaining representatives. They're not giving genuine consideration to the proposals being advanced by the other parties. They're not, because they've already got an agreement about it. They're not refraining from capricious and unfair conduct that undermines freedom of association or collective bargaining. They're making agreements with one bargaining representative and not the other two and of course 228(1)(f), not recognising and bargaining with the other bargaining representatives.

PN1011

We say whether the Harbour City Ferries and MUA bargained in good faith, was not a statutory precondition under section 238 in the context of this case will be a very relevant consideration in determining whether or not the Commission is satisfied that making a scope order at this point in time will promote the fair and efficient conduct of bargaining. We say it's also a very relevant consideration to whether or not it is reasonable in all the circumstances to make a scope order. If they've done a deal with the alpha male out of three bargaining representatives such that they're not bargaining in good faith with the two smaller bargaining representatives and they can't get a look-in because they've got a deal with somebody that they know can vote up the agreement that they want. That's a very relevant consideration under 228(4)(d). It's a very relevant consideration under 4(b) in my respectful submission; 238(4)(b). It's also a very good reason, in my respectful submission, for the Commission to be satisfied that there are reasonable grounds to believe 188(c) - reasonable grounds to believe that this agreement was not genuinely agreed.

PN1012

In relation to the correspondence, paragraphs 3 through to 5 of the summons on Harbour City Ferries and 3 through to 6 on the MUA, if the Commission was - if I can deal with 3 separately to 4, 5 and then the MUA 4, 5 and 6 for one moment: Ms Doust identifies part of her client's concern is that it goes back to February in 2014. If the Commission was concerned about that we would have no difficulty with it, confining it to May of 2014. But in the evidence of Mr Wydell you will see - that was exhibit 1 in the earlier interlocutory application - that in June of 2014 the MUA is saying to us, "Harbour City Ferries is coming to us and talking and dealing with us", in circumstances where they weren't dealing with the AMOU and weren't dealing with the AIMPE.

PN1013

If there is a depression concern, then February to May doesn't seem to me to be of any particular concern if the Commission were to excise it. The real concern really flows from about May 2014 onwards. Both Ms Doust and my friend Mr Mahendra raised contentions that what we are seeking here amounts to fishing. With respect, that misunderstands the distinction between discovery and a summons. This is not an attempt to see if we have a case. You've already got extensive evidence in exhibit 1 and exhibit 2 in the interlocutory application that there has been negotiation and negotiation was in part between Harbour City Ferries and the MUA alone and did not involve the AMOU or AIMPE.

PN1014

We know the discussions were going on. We know that there was - sorry; because we know the discussions were going on we have a reasonable basis to assert that there are documents of the kind that we seek in existence.

PN1015

It's not fishing; it's precisely what the Court of Appeal in Salem said. That is to say, it is perfectly proper to see a document produced on subpoena, in order to ascertain the information which it contains for legitimate use in a trail: that is using the document during and for the purposes of the trial and as the Court of Appeal had otherwise said in Waind v Hill:

PN1016

It does not follow because a party who issues a summons is unaware of the precise description of a particular document or whether a particular document or documents is in the possession of the witness or even whether it exists or is unaware of its contents that the subpoena or even a subpoena in general terms amounts to the use of a subpoena for the purposes of discovery. To state it does involves a misconception of the different functions of discovery and subpoena for production.

PN1017

What my friends are inviting the Commission to accept is that this is an attempt to trawl through documents which may or may not exist to see if there is anything there which gives us a case. With respect, a summons is directed towards obtaining a document or classes of documents to support the case you otherwise are already bringing. That is precisely what we are doing in this case, in my respectful submission. They are for legitimate forensic purpose, they do have apparent relevance, they are not excessively broad when one has regard to the nature of the issues which are to be ventilated, the nature of the issue in particular being negotiation between the employer and one bargaining representative to the exclusion of the others.

PN1018

The purpose of seeking the evidence of the negotiations is precisely to make good that point. Now, if the Commission was concerned about the use of the word, "negotiation", and was minded to try and confine it in some way, documents which confirm meetings occurred, documents which contain proposals or responses. If the Commission was looking to try and confine it in some way - that is to say, focus on the wheat and forget about the chaff; focus upon the matters of substance and not the matters that are peripheral: "Can I meet you Friday, Bob? No, let's do it Tuesday" - I mean - my friend says she didn't. She did not. But documents in relation to the negotiations are what is sought. What I'm saying is if the Commission is concerned about the breadth of it and was looking to confine it in some way then that would enough.

PN1019

On its face we say they are for legitimate, forensic purpose. We say they are of apparent relevance to the issues that will arise in the proceedings and that they do not amount to a fishing expedition, with respect. Those are our submissions, unless there is anything in particular.

PN1020

THE COMMISSIONER: Mr Howell, what I propose to do is to indicate to you how I think that with some restriction to the terms the subpoena should be reframed. I'm a little concerned, though, how the time frame might then be dealt with. Certainly I acknowledge and commend the MUA for at least indicating that they're trying to comply as best they can.

PN1021

MR MAHENDRA: Commissioner, I apologise. I should have indicated that Harbour City Ferries has also been doing the same thing and have compiled a similar-sized bundle of documents but in terms of what happens from here and timing, I'll have to take instructions on, Commissioner, depending on how you narrow the scope of this request.

PN1022

THE COMMISSIONER: Let me explain to you how I'm going to suggest that the scope be narrowed and then we might consider what sort of time frame will be needed and whether we then have to revisit time frames in respect of the matter more generally.

PN1023

MR HOWELL: May it please.

PN1024

THE COMMISSIONER: It seems to me that if the words - I'm dealing with the summons issued on the MUA first of all - the same terminology exists there and would apply for the terminology in HCF and then we'll get to the additional clauses 6 and 7 in a moment. But it seems to me that if in item 1 in the schedule, where it says, "A complete copy of any agreement", if then, after that, "document or documents", is added - so we're talking about an agreement document or documents and then we simply get to the end and we change the dates. Where it says, "14 February 2014", it would say, "1 May 2014", and then, "18 May 2015." That disposes of item 2. So that's how I would be inclined to re-word that. That would be item 1 of the schedule for both of the summonses. Then if we get to item 3, which would then become item 2 because we don't need 3 any longer because we've just tidied up the dates - I'm not sure that we need correspondence between any employees.

PN1025

It seems to me we're dealing with representatives of the organisations, not employees as such, are we? This might be a usual sort of endeavour to catch-all but I'm not sure that we don't then catch things we don't really need. There is some employee who's made an inquiry to Harbour City Ferries about something that's happening. We don't need that. That seems to me that might be unnecessary, to say, "employee."

PN1026

MR HOWELL: Commissioner, it's any employee or representative of the MUA. So it's any employee or representative of Harbour City Ferries and any employee of Harbour City Ferries in relation to negotiations. So if the Commission is concerned about simply any employee to Harbour City Ferries - - -

PN1027

THE COMMISSIONER: Yes.

PN1028

MR HOWELL: - - that's not, in my respectful submission, what is captured. It is any employee of the MUA or representative of the MUA. If it's confined in that way then I have no difficulty with that proposition at all.

PN1029

THE COMMISSIONER: Well, it just seems to me that I don't want to - and I don't think you need all the other correspondence that might occur from an individual employee to HCF or from an individual member of the MUA to the MUA about something or another. I don't think you need any of that. We're talking about the transactions between the two organisations by representatives of the two organisations.

PN1030

MR HOWELL: Quite. What I was concerned to insure was that - look, we could have simply said, "Between the MUA and HCF."

PN1031

THE COMMISSIONER: Yes, anyway - but I'm just trying to exclude this for everyone's benefit. So however you phrase it, I'm talking about taking out that, "Employee only", type capacity and then changing (b) so that the negotiations would be qualified by the following words, which would say, "but confined" - so it would be negotiations - "but confined to documents which reflect any terms of negotiation or any agreed outcomes." Then we change the date at the end from 10 October to 31 July 2015 and then you don't need anything else; 4 and 5 and 6 all go. That would then I think - because it seems to me that what you're looking for in 4 and 5 you'll get out of 3(b) if the date is changed.

PN1032

MR HOWELL: Sorry, Commissioner; the date you mentioned in relation to 3?

PN1033

THE COMMISSIONER: 31 July 2015.

PN1034

MR HOWELL: You lost me there, Commissioner; sorry.

PN1035

THE COMMISSIONER: I just picked up the date in your 6, because you had 31 July in 6.

PN1036

MR HOWELL: That's the end date - the beginning date, sorry.

PN1037

THE COMMISSIONER: I'm putting it across the whole thing, so 14 February 2014 to 31 July 2015. So what you'll see here - it is a lot of material but it's not all that ancillary material. It's documents that relate directly to any actual negotiation. It's quite a lot of material and it's going to take some time. But then I don't think you need 4 or 5 or 6, for that matter.

PN1038

MR HOWELL: Commissioner, the words proposed were, "But confined to documents which reflect any terms of negotiation or agreed outcomes?"

PN1039

THE COMMISSIONER: Yes. So you're looking at matters of substance, where, "This is an issue; here it is and it's resulted in this particular outcome." So you take out all the superfluous stuff.

PN1040

MR HOWELL: Commissioner - - -

PN1041

THE COMMISSIONER: Anyway, I don't necessarily want you to comment on this because what I'm going to suggest to you is that you might like to - you've got those words; you might like to reformulate that for me because that's the intention that I have in terms of issuing any subpoena in the matter and the same terms would be the adjusted configuration for Harbour City Ferries, but we've got two other clauses there that we need to attend to.

PN1042

MR MAHENDRA: Can I just make a suggestion in relation to the proposal for paragraph 3?

PN1043

THE COMMISSIONER: Yes.

PN1044

MR MAHENDRA: And that is there be no requirement on Harbour City Ferries or the MUA to produce documents that were copied in to, or that the other unions were copied in to. That is, documents that have already been provided to them we shouldn't have to provide again.

PN1045

THE COMMISSIONER: I think that's true. Yes, there's no reason to double up if it has already been clearly copied in. I think that whoever is having to do this could be relieved of doing that as well.

PN1046

MR HOWELL: It would be bold of me to try and resist that proposition.

PN1047

THE COMMISSIONER: Yes. So that gets us to seven and eight which is a slightly - it's the added matter just to do with Harbour City Ferries, and this seems to me to be fairly much on point really in terms of this question that's at heart here.

PN1048

MR MAHENDRA: It is to a degree, Commissioner, however it's extraordinarily broad by using the terminology "in relation to". So what does that really mean, "Any document in relation to the decision"? I mean, that could encompass a whole raft of documents. What I was proposing as a compromise is - and I'll have to confirm instructions on this, Commissioner - but "A complete copy of any document", and then continuing on. Rather than saying "in relation to recording the decision." If I can confirm those instructions, Commissioner?

PN1049

THE COMMISSIONER: Recording the decision?

PN1050

MR MAHENDRA: So for example if there are minutes of a meeting or a document that records the decision as to scope - if there is a document. I don't know the answer to that. But I think that would narrow the scope of that inquiry sufficiently. Because by including the words "in relation to" I wouldn't know where to start in terms of looking for documents to answer that query.

PN1051

THE COMMISSIONER: "Directly connected to"?

PN1052

MR MAHENDRA: "Directly connected to."

PN1053

THE COMMISSIONER: Yes I think "directly connected to" might do that.

PN1054

MR MAHENDRA: I'll get instructions.

PN1055

THE COMMISSIONER: Anyway, and then what I was going to do was to just take out eight completely but just make the final date 31 July 2015, the same process.

PN1056

MR MAHENDRA: Commissioner when you say "directly connected to" again it's difficult to ascertain exactly what those documents would be.

PN1057

THE COMMISSIONER: Well, they would have subject heading "Scope" or something like that, wouldn't they?

PN1058

MR MAHENDRA: We can produce those, Commissioner.

PN1059

THE COMMISSIONER: Well, yes, give me some other words. I mean, "in relation to" is very broad but it seems to be it has got to be connected with and I was trying to help you and say "directly connected with".

PN1060

MR HOWELL: Commissioner, I should say there is authority which deals precisely with this concept of in relation to and I'm just trying to find it. It goes back to 1987. It's a Court of Appeal authority. The respondent is South Pacific something or other. I can't remember it. I was just trying to quickly find it, but respectfully using the words "in relation to" between a factual category in order to draw a connection with a factual category is an entirely regular and appropriate way to craft a summons, in my respectful submission, particularly - - -

PN1061

THE COMMISSIONER: It appears very often in these things, "in relation to".

PN1062

MR HOWELL: Indeed, particularly when it's confined as to date.

PN1063

THE COMMISSIONER: Yes.

PN1064

MR HOWELL: But again one needs to appreciate the purpose of it. As articulated in the written request to the Commission's Chambers for the issuing of a summons in the first place, there are two purposes. One is to obtain the document. The other is to cross‑examine the witness. The witness here is Darrin Moy. He has put on a statutory declaration which describes at least in some - and this is not intended to be disrespectful - in some cursory way why this decision was made. These are, with respect, plainly for a legitimate purpose and plainly within the relevant parameters of what is appropriate or throw light on a matter which the Commission must consider.

PN1065

THE COMMISSIONER: Well, I'm not sure that "in relation to" is an inappropriate term.

PN1066

MR MAHENDRA: Commissioner, in the context of this paragraph it is and I'm aware of the authority my learned friend refers to, and whether or not "in relation to" is actually appropriate in the context of a subpoena depends on the words that follow.

PN1067

MR HOWELL: Yes.

PN1068

MR MAHENDRA: And in this case "In relation to the decision", again that could encompass a whole raft of documents and we would not know where to start.

PN1069

THE COMMISSIONER: Yes, we'd get that massive report from that very learned barrister that seems to underpin it all.

PN1070

MR MAHENDRA: Right.

PN1071

THE COMMISSIONER: The Walker report, isn't it?

PN1072

MS DOUST: Yes.

PN1073

MR HOWELL: If it assists, I'm not calling for production of the Walker report.

PN1074

THE COMMISSIONER: You don't want the Walker report? But that's the example.

PN1075

MR MAHENDRA: I'm aware of - yes.

PN1076

THE COMMISSIONER: I mean, it is a document "in relation to" that decision isn't it?

PN1077

MR MAHENDRA: It is. Precisely.

PN1078

THE COMMISSIONER: Yes. Yes.

PN1079

MR MAHENDRA: And it goes - - -

PN1080

THE COMMISSIONER: And I suppose all the material that might exist on file about all of that would be in relation to it.

PN1081

MR MAHENDRA: Correct.

PN1082

THE COMMISSIONER: It seems to be - - -

PN1083

MR MAHENDRA: It would go well beyond the scope of what's required for this Commission to determine. I think the only way to deal with this is to limit it to those documents that actually record the decision. For example if there are meeting minutes where a decision is made as to scope; if there is correspondence where a decision has been made as to scope. Anything else would lead to again a mammoth task in determining what actually falls within that category and where do you draw the line?

PN1084

THE COMMISSIONER: We might just have to live with my clumsy version "directly connected" and see what happens there. So in other words it has got to be the decision, if there's a document of that, and then directly connected documents to that decision.

PN1085

MR MAHENDRA: I think we can live with that, Commissioner, and we'll - - -

PN1086

THE COMMISSIONER: We'll just have to try that and see how we go, I think.

PN1087

MR MAHENDRA: We'll do our best to comply.

PN1088

THE COMMISSIONER: Yes.

PN1089

MR MAHENDRA: Based on our understanding of it.

PN1090

THE COMMISSIONER: Yes, and then perhaps what I need to do now is - well, perhaps Mr Howell you might try and get someone to reformulate these things and I'll issue them in the morning I suppose. But when do people think that they can comply?

PN1091

MR MAHENDRA: It depends on the final wording of the order I suppose, Commissioner.

PN1092

THE COMMISSIONER: Yes.

PN1093

MR MAHENDRA: But the other thing that my instructing solicitor asked me to raise again in respect of paragraphs 7 and 8, that that would not include documents that have been copied to the - - -

PN1094

THE COMMISSIONER: Yes, I think you could put that as a qualifier somewhere in all of this.

PN1095

MR MAHENDRA: Thank you, Commissioner.

PN1096

THE COMMISSIONER: But then the poor people that are sent away with the task of having to do this, I'm thinking of them and their weekend. So what if we made it midday of Tuesday of next week? Does that sound reasonable in the circumstances?

PN1097

MR MAHENDRA: I'll seek instructions, Commissioner.

PN1098

THE COMMISSIONER: What I might do is actually list the matter for a return of subpoena at the same time that the subpoenas are listed as a return date, and if there are problems that emerge after the altered orders that we'll issue tomorrow, I'll hear from you further about it, and we could do that Tuesday or Wednesday of next week.

PN1099

MR HOWELL: Commissioner, would you bear with me for one moment?

PN1100

THE COMMISSIONER: Yes.

PN1101

MR HOWELL: Commissioner, the Tuesday timeframe is of course a matter for my friends and I'm not going to say anything about that. What I'm more concerned about is what that means for the timetable more generally, in particular the 5 pm deadline for us tomorrow to put on our evidence and our submission. There are certainly matters which can be attended to in that time, including the form 18 which my friends have raised some concerns about. But I'd be loathe to put on - the matter has been programmed for a day and I'm proceeding on the basis that it will need to be done in that day.

PN1102

I'm endeavouring to do a very detailed written submission. I'm loathe to put on a written submission of that kind in the absence of having the evidence finalised. It just doesn't assist the Commission in the way that it should. So as I say, it's a matter for my friends whether they can do it by Tuesday and I'm not going to press them to that. The urgency here doesn't fall from my client's side of the Bar table, it falls from my friends. I mean, I'm not trying to delay the matter but equally it shouldn't be pressed on just for pressing's on sake.

PN1103

THE COMMISSIONER: I don't think we're going to be too troubled. In terms of the evidentiary case if as a result of the delayed return of the material you want a capacity to open that timeframe, you know, that would only be reasonable.

PN1104

MR HOWELL: I was just going to propose, Commissioner, if the timetable was adjusted so that the parties put on their case by say 4 pm Wednesday, the day after the production. I'm not sure that that's going to assist really, given the knock‑on - - -

PN1105

THE COMMISSIONER: Well, I think we should try to work to tomorrow. Certainly the F18 tomorrow and any other material that you can get on by tomorrow, and then we'll revisit this question on Tuesday at the return of subpoena and indicate that there's probably an opportunity for additional material by, you know, close of business the following day. That does seem to be a logical - we're working to a tight timeframe.

PN1106

MR HOWELL: I'm just anxious of - I'm just concerned about getting a metre high pile of material on Tuesday morning and having to put it on by Wednesday afternoon. But that's a product of my own making - or sorry, my client's making and we'll see what happens.

PN1107

THE COMMISSIONER: So noon on Tuesday we'll list the proceedings for a return of subpoena. That will also be the date that we'll include in the further summonses. So if you can get someone to have a work on those documents with those words that I've put forward this afternoon, we'll look at them in the morning, assuming that you've got it right, or we'll correct it if you haven't. Then we'll issue those, and then the matters will be back on again at noon on next Tuesday.

PN1108

MR HOWELL: May it please. Thank you, Commissioner.

PN1109

THE COMMISSIONER: Nothing further? On that basis the proceedings are adjourned.

ADJOURNED UNTIL TUESDAY, 08 SEPTEMBER 2015 [4.57 PM]

Fair Work Commission Transcripts

B2015/766, Transcript of Proceedings [2015] FWCTrans 523 (23 September 2015)