Home | Databases | WorldLII | Search | Feedback Australian Industrial Relations Commission Transcripts

You are here: 

C2003/ 663 , Transcript of Proceedings [2003] AIRCTrans 959 (20 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2003/ 663 
C2003/664

FINANCE SECTOR UNION

and

ANZ BANKING GROUP LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged imminent
loss of jobs

SYDNEY

MONDAY, 3 MARCH 2003

THIS MATTER WAS CONDUCTED BY TELSTRA TELECONFERENCE IN SYDNEY

PN1

THE VICE PRESIDENT: Good morning, gentlemen, Michael Lawler here. I suppose this telephone conference will be transcribed by Auscript and, for the record, this is a directions hearing in matter number C2003/ 663 , a section 170LW application settlement dispute Finance Sector Union and Australia and New Zealand Banking Group Limited and matter number C2003/664 section 170GB application for orders to consult with unions Finance Sector Union and Australia and New Zealand Banking Group. Gentlemen, as you may be aware, there have been panel re-arrangements within the Commission and I'm now the panel head for, inter alia, banking and finance.

PN2

Commissioner Eames asked me to take this file over on the basis that the matter was supposed to go on for a hearing and he was going to have difficulties attending for that. I have time available late in March and I note on the file there was a set of draft directions with a note that they were not agreed to so the purpose of today's directions hearing was to ascertain what the position of the parties was in relation to these matters and to arrange for directions for a hearing if a hearing is required, the matter hasn't been resolved yet. Who would like to lead off?

PN3

MR D. MATSON: I could probably happily do that, your Honour, Dennis Matson. I think where we are is that we do need some directions in relation to lodgment of witness statements and other evidence and then setting of a hearing but the lack of agreement at the time was more related to the fact that we didn't know who would be taking it up and what their timetable would be so really what we're looking for now I think is simply some directions as to, as I say, witness statements and other evidence from both of the parties and then a hearing date.

PN4

THE VICE PRESIDENT: Are the parties in agreement that conciliation has been attempted but failed?

PN5

MR G. COOPER: I appear for the respondent, your Honour, there has been an exhaustive process of conciliation in this matter to date. From our point of view that part of the process is now at a conclusion. I should briefly mention that as far as the respondent's concerned in tandem with the conciliation process involving Commissioner Eames there has been an exhaustive consultation process both with the Union and the employees at ANZ involved, that's also been brought to a conclusion and accordingly the bulk of the employees concerned have departed the bank, their employment terminated effective on 4 February so the reason I mention that is that was that whilst initially there may have been some urgency in bringing the matter on, that urgency is no longer there and whilst we consider the application to be somewhat futile at this stage, if it is to run, then there probably will be many witnesses involved and there's no need to compress the timeline if it is to proceed then I have some suggested dates for various steps but perhaps Mr Matson might wish to respond.

PN6

THE VICE PRESIDENT: Mr Matson, what is the - first of all, can I just ask this as a factual matter. Mr Cooper, you referred to extensive consultations occurring as part of the conciliation process, did those consultations occur before or after the terminations?

PN7

MR COOPER: Well and truly before, your Honour. The matter first came on before Commissioner Eames on 22 January. As a result of that various meetings and proposed exchanges of documentation was scheduled and carried out. The matter came back before the Commissioner on 28 January. The FSU was apparently still unsatisfied at that point and as a result of that quite a significant step was taken and this is all on the record, I should add, the allegation was made that a number of employees had waived what we call the redeployment process offered at ANZ whereby in the face of an approaching termination due to redundancy they're involved in a process whereby the Bank attempts to redeploy them to another role. Initially, the employees waived that process allegedly due to an understanding - a misunderstanding as to the basis of that offer.

PN8

As a result of this second report back to Commissioner Eames all of the employees involved were subject to an offer to allow them back into the redeployment process. I think of the 33 or so involved only one took up that offer but nevertheless it was certainly a significant step so after that period when the employees chose not to go back into redeployment the process was allowed to run its course and the bulk of the terminations were effective on 4 February, as I said.

PN9

THE VICE PRESIDENT: I haven't reviewed the papers other than in a most cursory fashion. I take it this is a redundancy, it's restructuring parts of the business, is it?

PN10

MR COOPER: Yes, your Honour.

PN11

THE VICE PRESIDENT: Now, Mr Matson, do you wish to press on with these applications or are you proposing to seek other remedies?

PN12

MR MATSON: Well, your Honour, a number of the individual employees I think 13 currently have outstanding CE applications and they're due for conciliation on 13 March but we certainly wish to pursue this course of action you know what Mr Cooper has to say as to you know consultation and conciliation whether it's been exhaustive or not, obviously that's a matter that we're seeking to have arbitrated.

PN13

THE VICE PRESIDENT: So you reject the suggestion that there has been the sort of consultation that's required by the Act to which section 170 GA is directed.

PN14

MR MATSON: Oh, absolutely, your Honour, otherwise the application would no longer be in front of you. There certainly was some discussion and there were some conciliation proceedings but we say the conciliation proceedings have come to an end more by being fruitless than by being exhaustive and as to the consultations we'll be leading considerable evidence about what was and what wasn't contained in those discussions so I mean the order that we're seeking really goes to potential reinstatement for a number of those people who whilst, yes, their terminations have taken effect.

PN15

THE VICE PRESIDENT: Where's the power to reinstate, Mr Matson - the power to order reinstatement?

PN16

MR MATSON: Well, we say it arises out of 170GA on the basis that the Commission can make such orders as it sees fit in order to put the parties in the position that they would have been had the consultation taken place.

PN17

MR COOPER: Your Honour, if I might be able to respond briefly to that?

PN18

THE VICE PRESIDENT: Yes.

PN19

MR COOPER: This probably isn't the time to argue these points but just in a general sense we would strongly challenge that submission on two bases, the first is that 170GA(2) enables the Commission to make orders to put the parties in the position had the requisite consultation occurred, firstly, we say that the requisite consultation did occur. Secondly, it's certainly doubtful whether there would be jurisdiction to order reinstatement and, in any case, in previous cases decided by the Commission certainly the primary approach the Commission has taken is to order that consultation itself take place and at most to effectively restrain the employer from carrying out the redundancies to occur. Now, in this case, because of the timeline and the status that approach simply isn't feasible and I won't go through them order by order but if we look at the draft orders proposed by the FSU which I think were filed on or about 21 February those matters have by and large already occurred so from the ANZs point of view, once again, we're in a situation where we have an application on foot that's basically futile.

PN20

The second point I would make in reference to potential reinstatements is that as my friend has pointed out there are a number of 170CE applications on foot. Now that, in our submission, is the jurisdiction where an employee can pursue reinstatement if they feel that their termination was harsh, unjust or unreasonable. As we know, that allows the Commission to consider a very wife range of matters including, for example, the process pursued in a redundancy situation.

PN21

MR MATSON: Your Honour, look, a number of the statements there made by Mr Cooper are clearly the matters that we need to have arbitrated and we simply do not agree that that consultation has taken place. It is open to the Commission, we say to make the order that we've sought and, obviously, we'd want to argue that on the basis of the existing case law I don't think any of that even on Mr Cooper's comments can be sort of considered to be a closed matter.

PN22

THE VICE PRESIDENT: Well, Mr Matson, this is just very much a preliminary view but the power under section 170GA(b) on its face would require a determination of what the outcome would have been if proper consultation had occurred and if on the evidence the outcome would still have been that these employees would have been terminated then it seems to me that section 170GA - this is just a very much a preliminary view I'm able to be persuaded to the contrary but, on the face of it, it looks as though the Commission would not have power to order reinstatement if at the end of the day the position that's arrived at is that following proper consultations the terminations would have proceeded in any event.

PN23

MR MATSON: We'd consider that to be a secondary position - I mean that is certainly the question as to whether that question of fact needs to be found is certainly one of the matters that we will be addressing even if it's found that your preliminary view is ultimately what's arbitrated we say that there are a whole lot of questions going to the shifts that have now been instituted, the overtime that's now being worked and so forth that we'll need to address you on in order for you to be able to find whether there was in fact a likelihood that those people may well have been kept on if the consultation had taken place in the way that it's supposed to by the Act.

PN24

MR COOPER: Just to close off on that, I think it's important to note that during the - or at the last report back a submission was made by ANZ to the effect that the draft orders initially filed and served by the Union were

PN25

THE VICE PRESIDENT: Well, Mr Cooper, I suppose - sorry, were redundant, if you like, because what they had asked for had essentially occurred either in the ordinary course or in tandem with the conciliation process before the Commission. As a result of that, the Union has since gone and served a draft order which I referred to earlier. Now, it's important to note I think in light of Mr Matson's comments that reinstatement itself is not sought as an order.

PN26

MR MATSON: I think I need to clarify what I did say there - what I said was that across the board reinstatement was not sought as an order because clearly at this stage a number of these people have actually found other jobs and that remains the case so I certainly did not say we were not seeking any form of reinstatement for anybody.

PN27

MR COOPER: Well, just in relation to that, your Honour, if, as part of this application, the FSU seeks reinstatement for some or all of the employees affected then, once again, I think the first direction that will need to be made if we pursue this matter is that they file and serve a third draft order.

PN28

MR MATSON: I'm not seeking anything different to what's in that draft order though.

PN29

THE VICE PRESIDENT: Well, the draft order doesn't address reinstatement, is that correct?

PN30

MR MATSON: It doesn't address across the board reinstatement, your Honour, but it basically looks at providing employees with an opportunities for re-employment so under point - does the Commission have it?

PN31

THE VICE PRESIDENT: Yes, I do.

PN32

MR MATSON: At point 6 as far as possible finding suitable alternative employment for redundant employees so it doesn't seek reinstatement.

PN33

THE VICE PRESIDENT: That's an order to meet - that's an order for meetings to incur.

PN34

MR MATSON: And, well, and the content of the meeting to be as far as possible find suitable or alternative employment.

PN35

MR COOPER: Which we've already done.

PN36

MR MATSON: That's a matter that needs arbitration whether it's already been done.

PN37

THE VICE PRESIDENT: Mr Matson, have meetings occurred in relation to this topic?

PN38

MR MATSON: Meetings have certainly occurred, your Honour, yes.

PN39

THE VICE PRESIDENT: What's the problem with the meetings that have occurred?

PN40

MR MATSON: The content, the timing - well, in fact the lack of content of the meetings and the timing. It's not been consultation in accordance with the case law as we read it.

PN41

THE VICE PRESIDENT: I must say I'm troubled, let's just assume for the moment that all the merit is on your side, Mr Matson, let's assume that for a moment. If you make that assumption I'm just unsure what the power is to do anything which is going to be relevantly beneficial to your members.

PN42

MR MATSON: I think there are probably two things.

PN43

THE VICE PRESIDENT: It's perhaps unfortunate I only received this file within the last week or rather the end of the week before that just before the Commission's statutory conference and it's unfortunate that the matter wasn't heard and determined prior to the redundancy statement effect. It seems to me that the purpose of the legislation is best served if the matter was arbitrated prior to redundancies occurring but having said that which really doesn't assist us what is the way forward.

PN44

MR MATSON: Your Honour, I think that observation is absolutely on the point we made a fairly clear statement of our view of the application by the employer to adjourn this matter until after the terminations had taken effect and that's all on the transcript, unfortunately, we were denied the opportunity to be heard before that happened by a decision of the Commission not as currently constituted and turning to the second part of the question which is you know what is the appropriate way forward, our view is that if the Commission finds that consultation as required by the Act has not taken place and that's very much a matter that we seek to have arbitrated in the first place then the order that we're seeking will provide some relief in terms of both consultation and potential for minimisation and mitigation precisely as the Act seeks to achieve.

PN45

MR COOPER: Your Honour, just in response to the first point made by my friend, we strongly object to the submission that there was somehow a denial of an opportunity to progress the matter prior to the redundancies taking effect in previous proceedings before Commissioner Eames - - -

PN46

THE VICE PRESIDENT: Mr Cooper, that's noted and certainly I'm not here today to try and cast any aspersions against anyone, Commissioner Eames included. It just struck me as unfortunate that if the parties were intend upon - if the FSU was intent upon this matter being arbitrated it's unfortunate the arbitration didn't occur prior to the terminations occurred but in any event that's very much spilt milk. I'm concerned about the way in which the matter can be most efficiently finalised.

PN47

MR MATSON: Yes, your Honour, the reason why we turned the draft order to the form that it now is, is that we understand that the rosters have now been finalised for the next six weeks to two months that there are apparent shortages of staffing even going forward and that a number of these employees that we're representing still have not found alternative work.

PN48

THE VICE PRESIDENT: Okay, How long do you think this will take, Mr Matson?

PN49

MR MATSON: In our view, it shouldn't be a long proceeding. We would have thought we would be leading probably three witnesses and then some brief submissions.

PN50

THE VICE PRESIDENT: Mr Cooper, on your side, how long do you think you will be?

PN51

MR COOPER: We will probably have two witnesses, your Honour, one of which will give quite considerable amount of evidence. As you can appreciate this spans a period of three months during which there were various steps taken so - - -

PN52

THE VICE PRESIDENT: I'm concerned that we try and - I appreciate that one has to be careful about not in fact ending up creating more work but I'm concerned to try and confine the ambit of what's in dispute as much as possible. Now, Mr Cooper, is it possible for you to - you probably have already prepared a chronology I imagine.

PN53

MR COOPER: Yes, I have, your Honour.

PN54

THE VICE PRESIDENT: Is it possible to prepare a version of that chronology which takes out any material you don't wish to put forward provide it to Mr Matson and see the extent to which he agrees or disagrees with it?

PN55

MR COOPER: I can certainly take those steps, your Honour.

PN56

THE VICE PRESIDENT: Okay, Mr Matson, are you happy to receive a chronology from Mr Cooper which you will then annotate to indicate where you disagree with it?

PN57

MR MATSON: That sounds a very sensible step, your Honour, yes.

PN58

THE VICE PRESIDENT: Okay, is that something that could be done - first of all, how is the 24 and 25 March, that's Monday 24th and Tuesday, 25th?

PN59

MR MATSON: They're fine by me, your Honour.

PN60

MR COOPER: Your Honour, in terms of the general timeline, we were proposing something along the lines of allowing ten days for the FSU to file and serve its materials; a further 14 days for the Bank to respond; a short period for any further response for the FSU and then for the matter to be listed sometime after that process has taken its course which would have taken us to 2 April.

PN61

THE VICE PRESIDENT: I am - this is a small panel and I will be looking after this matter particularly having regard to the fact that the urgency has gone out of it in all the circumstances - quite a bit of urgency has gone out of it in the circumstance. I have commitments with the safety net review and Full Bench rosters which essentially rule me out for the whole of April but between the safety net hearing days and conferences in Melbourne and Full Bench rosters in Perth and Sydney there was no time available in April which will take it into May if we can't do the 24 and 25th March. Mr Matson, presumably you don't want this spinning out to May.

PN62

MR MATSON: Well, your Honour, certainly that part of the utility of it goes to the potential for finding other positions for those people will have well and truly gone over but I hope, if it goes into April, the draft directions that were given up by the employer indicated that they would have no trouble filing and serving their material you know somewhat more quickly than what's just been indicated. I would have thought if we were to file and serve we can do that contemporaneously with arranging the chronology of events.

PN63

THE VICE PRESIDENT: Mr Cooper, if the chronology is already done is there any reason why you couldn't get that to Mr Matson by Wednesday this week?

PN64

MR COOPER: Wednesday this week I can certainly have something to Mr Matson, yes.

PN65

THE VICE PRESIDENT: Okay, what about a chronology to Mr Matson by Wednesday; he files such material as he wishes to rely upon by Friday. Although that's a relatively short timeframe I don't think it's unreasonable having regard to the history of the matter and the fact that much of this material must already have been assembled or at least what's going to be presented must have been identified. It seems to me that that's a sufficient period. You need longer, obviously, because you're responding and you don't know what's coming.

PN66

MR COOPER: Yes.

PN67

THE VICE PRESIDENT: What about Wednesday, 19th which is a week and a half and then arbitration on the 24th and 25th.

PN68

MR COOPER: Yes, just one point, your Honour. There was some discussion about the draft order and we wholly agree with your Honour's point that it really is necessary to try and limit the scope of this application in the interest of efficiency. I just wanted to clarify whether my friend or indeed the Commission sees any need for those draft orders to be amended, particularly in view of Mr Matson's comments on a potential reinstatement being sought.

PN69

THE VICE PRESIDENT: Well, I think, Mr Matson, if you want to seek any different orders you need to file some revised draft orders by Friday, 7th as well.

PN70

MR MATSON: Certainly, yes, your Honour.

PN71

THE VICE PRESIDENT: And Mr Cooper, to the extent that you wish to make any application for, as it were, the summary disposal of the matter that is something that can be dealt with first up on the 24th. I mean it may well be that the quickest way home was to just hear the totality of the evidence but that's a matter for you as to whether one can make such an application.

PN72

MR COOPER: Yes, your Honour.

PN73

THE VICE PRESIDENT: I mean it rather depends upon what's agreed and what's not agreed and I'd expect that the parties will respond properly to any requests that either may make of the other to identify matters that are not in dispute - do you understand that, Mr Matson and Mr Cooper?

PN74

MR COOPER: Yes.

PN75

THE VICE PRESIDENT: In other words, I expect that each of you will be able to write to the other and say, "Do you agree that A, B, C, D, E, F and G and that there won't be any silly non agreement to matters that in fact ought be agreed.

PN76

MR COOPER: Yes, your Honour.

PN77

THE VICE PRESIDENT: But it may well be that that's a mechanism that can be utilised and find the ambit of the matter as well. So the directions that I make then and I'll have my associate type a copy of these out and send them out is that the respondent will serve a chronology on the applicant by 5 pm on Wednesday, the 5th. The applicant will by Friday the 7th at 5 pm identify to the respondent and to the Commission which parts of the chronology are in dispute. The applicant will file any statements or other documents upon which he intends to rely by 5 pm on Friday, the 7th. The respondent will file its statements and documents by 5 pm on Wednesday, the 19th. The applicant will file any material in reply by 5 pm on Friday, the 21st and I list the two matters for arbitration on the 25th and 25th March starting at 10 am on the 24th. There's liberty to apply to both parties if any directions need to be altered and I note that the parties are in agreement to responding to written questions by the other party in an effort for the purpose of trying to limit the ambit of what's in dispute. I direct the applicant to file any further or amended draft orders upon which he seeks to rely by 5 pm on Friday, 7 March. Anything further, gentlemen?

PN78

MR COOPER: Just briefly, your Honour, in relation to the other matter that was filed together with this initially, it was a section 170LW matter in the scheme of things that has not been pursued in any realistic sense and this would be for another day but we submit that it's inappropriate for that to be listed for arbitration. In any case I just wanted to be careful about the language.

PN79

THE VICE PRESIDENT: Why is that inappropriate to list for arbitration?

PN80

MR COOPER: Well, because it hasn't been conciliated or really otherwise dealt with in any way.

PN81

THE VICE PRESIDENT: It relates to exactly the same subject matter, doesn't it?

PN82

MR MATSON: Yes, it does.

PN83

THE VICE PRESIDENT: I'm most concerned that it is inappropriate to do other than deal with these two matters together if they relate to the same subject matter. If you are embarrassed by what has or has not occurred in relation to that file then you should identify that embarrassment now so we can mould directions accordingly.

PN84

MR COOPER: Yes, I probably wasn't clear, the jurisdictional point I think, your Honour, that essentially such a matter under the industrial instruments that apply to ANZ cannot be arbitrated without consent and ANZ has not given its consent.

PN85

THE VICE PRESIDENT: Well, that's because the relevant certified agreement doesn't confer an arbitral power on the Commission at the end of the day.

PN86

MR COOPER: The relevant disputes clause of the agreement which is the basis for the power in section 170LW specifically states that any dispute may be placed before the Commission for conciliation or, where the parties agree, for arbitration.

PN87

THE VICE PRESIDENT: And ANZ doesn't agree. Mr Matson, if it doesn't agree that's the end of the matter if that's what the clause says, isn't it?

PN88

MR MATSON: Yes, your Honour, I think we'd probably concede that. If this matter is listed and arbitrated then I think we'd concede - - -

PN89

THE VICE PRESIDENT: When I say it's listed for arbitration that would be a very short arbitration indeed, won't it, because that jurisdictional point is taken then it's the end of the matter in about 60 seconds or 30 seconds perhaps.

PN90

MR MATSON: Look, I think that's probably right, your Honour. At this stage you know we wouldn't be seeking to have that matter arbitrated. I mean all of these matters have been listed together.

PN91

THE VICE PRESIDENT: Mr Cooper, its been notified you say there has been no conciliation or there's been conciliation?

PN92

MR COOPER: Well, the steps that have been taken before Commissioner Eames have at all stages been directed at the matters covered by section 170GA. It may be that it was really - the section 170LW point was really put to one side in the interests of efficiency and held in abeyance.

PN93

THE VICE PRESIDENT: Well, do any of the parties have any suggestions - let me put it this way, Mr Matson, is there anything to be gained from pressing on with this 170LW. I mean either you've got a point on the 170GA or you haven't and there's nothing further to be gained, is there, in a real politics sense for pursuing the 170LW application.

PN94

MR MATSON: Your Honour, in a strictly legal sense, possibly not. I'd suspect that in the process of arbitrating the GA there may well be outcomes where it is - you know where it is valid to have an LW on foot for further discussions between the parties but I mean there's nothing in the end I suppose to stop us lodging a new notification if that becomes necessary but that would seem to be an unnecessary waste of new Commission files. I mean I suspect me - - -

PN95

THE VICE PRESIDENT: There are significant costs associated with - on the Union's side I presume you'll be appearing, Mr Matson, and your salary is paid for by the Union but the ANZ has got to be forking out to solicitors to appear and run these things and it seems to me that whilst what you're saying is sensible and I'm certainly amenable to taking that approach I'm hostile to the notion that the 170LW application should be somehow floating off on the ether after the conclusion of the arbitration where it has the capacity to run up further costs again. If there is to be a conciliation by the Commission then it seems to me that that ought to happen in tandem with the arbitration under the 170GA application.

PN96

MR MATSON: Your Honour, I don't have any particular objection to that course, I suspect though that the resolution of the 170GA application one way or another will determine what the outcome is in the substance for the parties and the 170LW will be you know either - it will provide some scope for some discussion between the parties or, alternatively, you know we can withdraw it.

PN97

THE VICE PRESIDENT: Mr Cooper, are you happy with that state of play?

PN98

MR COOPER: Well, it's probably not for us to say at this juncture but we think the most appropriate way forward and the neatest way forward, if I can put it that way, is for it to be withdrawn. Whilst the conciliation that's occurred to date may not have been characterised as conciliation under both applications I think my friend would concede that really the same issues have been canvassed so whilst we're in a situation where there's no jurisdiction to arbitrate conciliation can possibly occur - probably already has occurred, again, it's probably not for us to say but really there's probably not a lot to be gained by the 170LW aspect remaining on foot.

PN99

THE VICE PRESIDENT: Okay, I've said what I want to say about that. Mr Matson suggests that it may be useful to leave it on foot for the time being only as a vehicle to enable further discussions to occur that might flow from the course of the arbitration hearing in the other matter. I don't think it's appropriate for me to seek to try and force Mr Matson to withdraw it now or to otherwise dispose of it but, certainly I'm conscious of the need to avoid the unnecessary incurring of expense by your client, Mr Cooper, in relation to that application if it has already been substantively dealt with by the Commission or by Commissioner Eames.

PN100

MR MATSON: Your Honour, if it gives any comfort to ANZ and to Mr Cooper, we're certainly not proposing that there should be any substantial conciliation of that in the time between now and the outcome of the 170GA proceeding so there shouldn't be any additional costs in leaving that there until the conclusion of the 170GA proceedings and, as I've indicated, we would intend to deal with that finally one way or another about that point.

PN101

THE VICE PRESIDENT: Good, is there anything further that needs to be dealt with?

PN102

MR COOPER: Not here, your Honour.

PN103

MR MATSON: Your Honour, there is one other matter and that is we still have standing that we objected to leave being granted for appearance by counsel at the early stages and I think Commissioner Eames dealt with only the application for leave to appear only for some short periods of - - -

PN104

THE VICE PRESIDENT: Mr Cooper, would you be seeking to brief counsel on the 24th and the 25th?

PN105

MR COOPER: Yes, we would. It may well be that Mr Tarke who has previously appeared before the Commission in this matter will be briefed. He is essentially an in-house counsel based at our firm. In terms of leave to appear, I would - - -

PN106

THE VICE PRESIDENT: Mr Matson, is there any particular reason you have for not offering your consent to in-house person appearing?

PN107

MR MATSON: It's not just counsel it's legal representation, your Honour, relying on the relevant section of the Act 42(3) off the top of my head is that there weren't any special circumstances that we could see. I mean really now we're talking about questions of fact and appropriate remedy they're not - there aren't significant jurisdictional issues - not to my knowledge any jurisdictional issues other than making out the facts of whether there was consultation for the purposes of the Act so really it's not - - -

PN108

THE VICE PRESIDENT: 170GA is not exactly something that's been used a lot. I would have thought there are some potentially novel legal issues that arise in the context of this application that provides a basis - that provides a special circumstance it seems to me at first blush. Is that something that the parties would like to have resolved. Mr Cooper, would you like to have that resolved before the 24th, that issue?

PN109

MR COOPER: Your Honour, I might seek a moment to get instructions on that but - - -

PN110

THE VICE PRESIDENT: I'm just thinking that whoever turns up on the 24th will no doubt want to prepare and that preparation will be something that will involve expense for your client and if leave is not granted that's a wasted expense.

PN111

MR COOPER: Yes, I'm also conscious of the added expense of coming before the Commission again before the 24th and I'm a little bit reluctant.

PN112

THE VICE PRESIDENT: Although that could be done by telephone hearing as this is being done which I presume is efficient for both the parties.

PN113

MR MATSON: Your Honour, it could be done that way or, alternatively, in writing. It's not exactly something that I would have thought that we'd want lengthy submissions on.

PN114

MR COOPER: Yes, your Honour, my friend would have to agree that a lot of the on record discussions to date has been aimed at or has related to the jurisdiction of the Commission under section 170GA and there's been some quite complex arguments about that. There are a few cases on this section but a number of cases that go into those matters. I'm a little bit concerned that really this issue of whether special circumstances justifying representation is being pursued.

PN115

THE VICE PRESIDENT: Mr Matson, what I propose to do is to deal with this now. What are your submissions, why shouldn't - why doesn't 42(3)(c) apply that this is a case where the ANZ can only adequately be represented by counsel assist or agent.

PN116

MR MATSON: A number of things, your Honour, that we'd say in relation to that one of them is that the Union would substantially less resources being represented by someone who is not legally qualified. There are no matters of jurisdiction that have been addressed in the Commission to date other than the question of what constitutes proper consultation for the purposes of the section in question and so we say there are no other circumstances - special circumstances. There are certainly - I mean the ANZs HR Department alone is a larger organisation than the FSU nationally who deals with any number of banks and insurance agencies. There are a number of people who are legally qualified directly employed by the ANZ in their HR Department and they have an abundance of people who can adequately represent them in these proceedings who are better qualified than anybody at the FSU potentially to do so.

PN117

THE VICE PRESIDENT: Mr Cooper, what do you say?

PN118

MR COOPER: Well, there are a number of potentially legally complex issues in this application. The first one is in relation to what is actually required by section 170GA and there's been a number of cases that have looked at that: what does consultation mean; what does genuine consultation mean. Most notably the decisions I suppose of the Full Bench in the Newcastle Wallsend decision and also Commissioner Smith's decisions in the Vodaphone Network and Optus cases. Now, those distinctions are pretty fine distinctions and there is certainly a lot of analysis required to apply those principles from the cases to the facts of the given case. The second point which is being discussed and will no doubt be pursued at length at the hearing is the one that we've discussed today and that is what can or what jurisdiction does the Commission have if it is found that section 170GA has not been met.

PN119

We've talked about reinstatement - potential reinstatement. I've reviewed these cases and I don't think any of them have extended that far. As I said earlier I think it's doubtful that the Commission has such jurisdiction but there are a lot of cases and it sounds as though the FSU might be pursuing something a bit novel there and ANZ would certainly be wishing to brief counsel to respond to any such step. It's to be borne in mind I think that the sections are linked to articles 12 and 13 of the determination convention which in a sense is included or attached or annexed to the Act. There was some quite complicated legal issues decided in I think the Commonwealth Bank cases last year about the validity of the sections and the way they operated in view of that inked with the employment convention and that's another area that would highlight that this isn't just a case about facts but is rather a case about the law and the facts and the way that the two are linked.

PN120

They would be the main bases for our submission that either under section 42(3)(b) or 42(3)(c) of the Act or both sections leave for representation should be granted. It's going to be a two day hearing; there's going to be a number of witnesses; a lot of evidence and in fact I think it's really a matter of the Commission being able to be assisted by counsel. We've talked about trying to streamline this case and run it in an efficient way. My submission is that the Commission would certainly be assisted by allowing legal representation at the hearing.

PN121

THE VICE PRESIDENT: Thank you, Mr Cooper. Mr Matson, do you want to respond to that at all?

PN122

MR MATSON: Your Honour, only to say that the scope of what can be contained in a draft order if jurisdiction is found is a matter that I think is fairly unlikely to arise in any detail given the nature of the draft order that we've put and not taking on board you know that you've given us an opportunity to lodge a further draft order but I don't see that there's - given what we're seeking that there is going to be a need to do that so that issue I would not have thought is going to arise because, as I say, we're not seeking reinstatement in any substantial way other than in terms of the draft order that we sought. As to assistance to the Commission, we would say that - as I say there are a number of people who are legally qualified, highly experienced and have intimate knowledge of all of the details of these proceedings who are direct employees of the ANZ and therefore entitled to represent the ANZ before the Commission in any case so with those two I have nothing further to say.

PN123

THE VICE PRESIDENT: I'm satisfied in this matter that there are special circumstances that make it desirable that parties may be represented under section 22(3)(e), those special circumstances are novel legal questions that arise actually or potentially having regard to discussions that have occurred this morning. Under the circumstances, I propose to exercise my discretion to grant leave to the parties to be represented by a solicitor or counsel. Now, is there anything further that needs to be done?

PN124

MR MATSON: No, your Honour, I think that's about it.

PN125

MR COOPER: No, your Honour.

PN126

THE VICE PRESIDENT: Fine, I'll have my associate send out the draft directions. I do urge the parties to seek to confine the ambit of the factual matters that are in dispute as much as is possible through the mechanisms that we've discussed. There's nothing further, I'll now adjourn this directions hearing, thank you.

PN127

MR MATSON: Thank you.

PN128

MR COOPER: Thank you, your Honour.

ADJOURNED UNTIL MONDAY, 24 MARCH 2003 [10.46am]