PN1

JUSTICE ROSS: Can I have the appearances please? No need to stand, it's all right.

PN2

MS N DABARERA: If the Commission pleases, Dabarera, initial N, appearing for United Voice.

PN3

JUSTICE ROSS: Thank you.

PN4

MR Z DUNCALFE: If the Commission pleases, Duncalfe, initial Z, for the Australian Workers Union.

PN5

JUSTICE ROSS: Thank you.

PN6

MS Z McQUILLAN: If the Commission pleases, McQuillan, initial Z, seeking permission to appear for the ABI and the New South Wales Business Chamber.

PN7

MS J McDONALD: May it please the Commission, McDonald, initial J, and Kumar, initial R, for AFEI.

PN8

JUSTICE ROSS: Thank you. Have each of you got a copy of the background paper that was published on 10 August?

PN9

MS DABARERA: Yes, your Honour.

PN10

MR DUNCALFE: Yes, your Honour.

PN11

JUSTICE ROSS: Well, look, you're familiar with the two issues. The short purpose of the conference is to see whether you've had an opportunity to discuss the issues, what the prospect is of you reaching an agreement in relation to them, and in the absence of an agreement what sort of case you want to run. By that I mean, is it something that's going to require witness evidence or is it something that would be dealt with on the basis of submissions, perhaps with a program of written submissions and a short oral hearing. So let's deal with the first part of that proposition first, whether you'd had a chance to have a chat and if so, whether you've magically arrived at a resolution of both issues. If not, what your assessment is of the likelihood of that. Who'd like to go first?

PN12

MR DUNCALFE: I will, your Honour.

PN13

JUSTICE ROSS: Right.

PN14

MR DUNCALFE: We did have a teleconference yesterday afternoon between the parties present here today. Consensus wasn't reached on either of the two matters and we - I believe that we've all maintained our views and there hasn't been any movement in that. For us in terms of what kind of case we would run, we would think that it could be entirely determined on the papers. Our position is that it's chiefly or not, if not chiefly then definitely wholly a construction argument as to what - - -

PN15

JUSTICE ROSS: What the current award means then translating that into the exposure draft.

PN16

MR DUNCALFE: Yes, your Honour.

PN17

JUSTICE ROSS: Right.

PN18

MR DUNCALFE: So we wouldn't feel any need to bring any witnesses into the frame.

PN19

JUSTICE ROSS: From your perspective is the history of the award relevant or not, or is it really the current - it's the language of the current award? I'm not - I'm not raising that in any sort of leading way, I've got no idea whether the history's relevant or not. It's just if it was or if any party thought it was, then I could ask the award review research section to do a - or prepare a short document on what were the pre-modernised instruments that gave effect to this award et cetera. But do you - from your perspective, do you see the history as being relevant or not?

PN20

MR DUNCALFE: From my perspective the history may be relevant. I haven't actually looked at that firstly - - -

PN21

JUSTICE ROSS: Yes, no, neither have I.

PN22

MR DUNCALFE: I've been looking at the current award and also how it's been translated into the exposure draft, and looking at it through that lens just completely construction. But I think it may be helpful to look at the history of what the pre-modern awards and NAPSA may have been that went into create this award.

PN23

JUSTICE ROSS: Right, well we can certainly do that. Well, let's start from your position as see if there's any difference of view from amongst the other parties. That is that it's a matter that could be dealt with by written submission, no evidence being required and we'll come to how long you want to file the material, written submission and perhaps a short oral hearing. What do you think about that?

PN24

MS DABARERA: Your Honour, our view is similar to the AWU, we believe that it's a matter that could be dealt with on the papers by submission.

PN25

JUSTICE ROSS: Is your argument going to be along similar lines? It's based on a construction of the current award?

PN26

MS DABARERA: Yes, your Honour.

PN27

JUSTICE ROSS: Right. Who'd like to go first?

PN28

MS McQUILLAN: Your Honour, I would agree with the comments that have already been made in relation to it - - -

PN29

JUSTICE ROSS: At least you can agree on that, so that's progress.

PN30

MS McQUILLAN: Yes, we can agree on that, perhaps not the other matters.

PN31

JUSTICE ROSS: No.

PN32

MS McQUILLAN: We would say that it is a combination of things, both in terms of the current construction of the award and some of - the source of some of the clauses. My research, particularly our interest is on the removals issue and the minimum engagement for that. Looking at where the clause in the modern award came from, that clause seemed to come from the pre-modern Victorian award which operated with a different type of casual clause. So I think it'd definitely be worthwhile having a look at the history of those provisions.

PN33

I'm still seeking instructions from our membership in relation to whether we might be bringing forth evidence from one witness but wouldn't be proposing a large scale of evidence be adduced. So we'd mostly be happy with it on the papers or a combination of approaches, whatever your Honour sees fit.

PN34

JUSTICE ROSS: Right.

PN35

MS McDONALD: Your Honour, we appreciate hearing the views of the other parties today. AFEI does seek further time to confirm instructions as to how we see this matter proceeding.

PN36

JUSTICE ROSS: Right. Well, what we might do as a first step I'll get the history document put together and you should have that in the next couple of weeks. I'll put some draft directions out for comment for each of you as well. That will provide for the filing of any submissions and any evidence by every party by a nominated date and then every party to put in a reply and any evidence in response by another date, and then a date where the matter will be listed for short oral argument and the dealing - if there is any witness evidence, then we'd have the witnesses available for questions from the Bench and from the other parties.

PN37

Where's the most convenient location for the - do you have a feel for where - I know you're reserving your position at the moment, do you have a feel for where you're likely to draw the witness from, for example?

PN38

MS McQUILLAN: Your Honour, I think we'd be drawing the witness from Victoria but I know that all the parties are - well, the representatives are Sydney based. Would it be possible to - - -

PN39

JUSTICE ROSS: We can certainly do a video, that's no problem.

PN40

MS McQUILLAN: - - - a video link, your Honour.

PN41

JUSTICE ROSS: So short oral hearing in Sydney with a video link to Melbourne if required, if a witness is to be called.

PN42

MS McQUILLAN: Yes, thank you, your Honour.

PN43

JUSTICE ROSS: Right. Do you have a feeling - and I know you're reserved your position so I'll bear that in mind but given the nature of the issue and the nature of the arguments that are likely to be run, do you have a feel for how much time you're going to need to put in your initial submissions?

PN44

MR DUNCALFE: From the date of receiving the paper?

PN45

JUSTICE ROSS: Well, yes, we can do it that way, yes, sure. Would we say - are you looking at - is four weeks from that day sufficient?

PN46

MR DUNCALFE: I think four weeks would be sufficient.

PN47

JUSTICE ROSS: So that's six weeks from today or Monday really and then probably any submissions in reply two or three weeks after that and then a short oral hearing. Something like that?

PN48

MS McQUILLAN: Yes, thank you, your Honour.

PN49

JUSTICE ROSS: Right, no violent reaction to any of that, no?

PN50

MS McQUILLAN: No, your Honour.

PN51

JUSTICE ROSS: No, right. Well, we'll do that and I'd still encourage you to have discussions as the matter - as the material comes in and there may be a compromised position that you're able to arrive at, but it's probably going to await the submissions being in for you to assess the nature of the case that you'll be meeting. All right, thanks very much. I'll adjourn.

ADJOURNED INDEFINITELY [2.12 PM]