TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 LT5_TPO

VICE PRESIDENT LAWLER

AM2010/122 and others

s.158 - Application to vary or revoke a modern award

Application by Victorian Employers' Chamber of Commerce and Industry
(AM2010/122)
Building and Construction General On-site Award 2010

(ODN AM2008/15)
[MA000020 Print PR986361]]




Melbourne

10.42AM, FRIDAY, 12 NOVEMBER 2010

PN1

THE VICE PRESIDENT: Appearances, please.

PN2

MR M. McKENNEY: If your Honour pleases, I continue to appear for the applicant.

PN3

THE VICE PRESIDENT: Thank you, Mr McKenney.

PN4

MR McKENNEY: Can I just indicate, your Honour, I've been asked to advise that the Bus Industry Corporation, who are unable to appear today, will be making submissions in support of the applications. I understand, your Honour, that correspondence was forwarded to the tribunal yesterday in relation to that, if I could just note that for the record, your Honour.

PN5

THE VICE PRESIDENT: Thank you, Mr McKenney.

PN6

MR D. GREGORY: Your Honour, if the tribunal pleases, I seek leave to continue my appearance on behalf of the Australian Chamber of Commerce and Industry. My name is Gregory, initial D.

PN7

THE VICE PRESIDENT: Thank you, Mr Gregory.

PN8

MS B. MURDOCH: If your Honour pleases, Murdoch, initial B, on behalf of Master Builders Australia.

PN9

THE VICE PRESIDENT: Thank you, Ms Murdoch.

PN10

MS S. DESILVA: If it pleases the commission, DeSilva, S. I appear for Workforce Victoria.

PN11

THE VICE PRESIDENT: Thank you, Ms DeSilva.

PN12

MR J. FETTER: If it please the commission, Joel Fetter on behalf of the ACTU, with me MS E. McCOY.

PN13

THE VICE PRESIDENT: Thank you, Mr Fetter.

PN14

MS V. WILES: If the commission pleases, Wiles, initial V, from the Textile, Clothing and Footwear Union of Australia.

PN15

THE VICE PRESIDENT: Thank you, Ms Wiles.

PN16

MS R. READ: If it please the tribunal, Read, initial R., for the CFMEU forestry and furnishing products division.

PN17

THE VICE PRESIDENT: Thank you, Ms Read.

PN18

MR TOWNSEND: Your Honour, Townsend, W., on behalf of the Community and Public Sector Union.

PN19

THE VICE PRESIDENT: Thank you, Mr Townsend.

PN20

MR M. McLEAY: Your Honour, if it pleases the tribunal, McLeay, initial M, for the Health Services Union.

PN21

THE VICE PRESIDENT: Thank you, Mr McLeay. Mr McLeay, the Health Services Union I don't think has made an appearance on the previous two occasions the matter was brought before the president. Is the HSU proposing to participate?

PN22

MR McLEAY: We were here last time, your Honour.

PN23

THE VICE PRESIDENT: I didn't note that. Well, that may give rise to a problem, but I'll come back to that in a moment. Yes.

PN24

MR A. KENTISH: If it pleases, Kentish, initial A., for the CEPU.

PN25

THE VICE PRESIDENT: Thank you, Mr Kentish.

PN26

MR G. NOBLE: Noble, your Honour, initial G., for the AMWU.

PN27

THE VICE PRESIDENT: Thank you, Mr Noble.

PN28

MR FETTER: Your Honour, sorry, I should say as well that today we are specifically authorised to represent the LHMU, the CFMEU construction division, the CFMEU mining division, the TWU and the ASU, and I believe a number of other affiliates have sent correspondence into the tribunal generally authorising the ACTU to make representations on their behalf.

PN29

THE VICE PRESIDENT: Yes. I'm not sure that all that correspondence has made its way to the file yet, but that's fine, Mr Fetter. I don't think there will be any difficulty arising from that. Now, can I just make it clear what's happened and why I'm sitting here rather than the president. On the previous occasions that the matter was before the president, he was sitting for the purpose of mentioning the matter and considering directions and any procedural issues that the parties wish to raise.

PN30

The president has now constituted a full bench with myself residing, Kaufman SDP and Bissett C, and the purpose of today's mention was to set in place a final timetable to deal first of all with the ACTU's - I think it's been styled a strike-out application - and then also to deal with issues in relation to the filing of evidence and how that would interrelate with the strike-out application, and to discuss making provision for listing for hearing in the event that the strike-out application is unsuccessful.

PN31

Mr McLeay, the HSU's participation gives rise to this difficulty: my partner, Katherine Jackson, is the national secretary of that union, and that would be a circumstance I imagine that would satisfy the criteria for disqualification for apprehended bias in the event that a party took an objection to me sitting. So I should give the parties that opportunity to make that objection now so the president can reconstitute the bench in haste in the event that the objection is taken.

PN32

MR McLEAY: Your Honour, the HSU may withdraw from the matter (indistinct)

PN33

THE VICE PRESIDENT: I think the president is reasonably careful about the matters that he allocates to me, because that circumstance that gives rise to that problem about apprehended bias is one of which he has been well aware for a long time. I thought he had satisfied himself that there weren't any awards involved that were going to give rise to that problem. But in any event, the fact that you're here means that I need to give other parties an opportunity to apply to have me disqualify myself if they think that that's the appropriate course to take. I mean, personally I don't see that this is going to cause any difficulty in terms of me making a decision on the evidence on the merits, but that's not the question. The question is a matter of the appearance of justice being done, being upheld and preserved, and that's what the authorities make clear. So I should start with you, Mr McKenney.

PN34

MR McKENNEY: Your Honour, I have instructions not to oppose your Honour continuing to sit on the full bench.

PN35

THE VICE PRESIDENT: All right, thank you. Is there anybody who does wish to take the objection?

PN36

MR GREGORY: Your Honour, there's no issue from our point of view.

PN37

MS MURDOCH: No issue.

PN38

THE VICE PRESIDENT: All right, thank you. Well, nobody has put their hand up, so that's not a problem, then. Now, can I just ask you, Mr McKenney, do we have a final position on the number of awards in respect of which applications are being pressed, or is that still up in the air?

PN39

MR McKENNEY: Your Honour, the situation as I described it to the president last time, if I can just find a transcript - if you have the transcript, your Honour, at paragraph 272, I indicated to his Honour on that occasion that there were statements affecting 32 of the awards, 16 had been withdrawn at that time, and there were 33 in relation to which the applicant was seeking further time, your Honour, to - - -

PN40

THE VICE PRESIDENT: The total number, 32 plus 33, hasn't changed; it's 65 in total that are being pressed?

PN41

MR McKENNEY: I'll just get some instructions on the specifics, your Honour. Your Honour, the state of play at the moment is that I'm instructed that we'll be withdrawing from the State Government Administration Award. We are seeking to press applications in relation to the Nursery Award and the Meat Industry Award, your Honour. Your Honour, I don't have final instructions, but the situation appears to be that in relation to the other awards, where there are no statements, we will withdraw those applications, your Honour.

PN42

THE VICE PRESIDENT: So amongst the group of 33, which on the last occasion there had been no evidence, the Nursery Award and the Meat Industry Award are two awards amongst that 33 where you will be pressing the application, but the balance, which will leave 31, won't be pressed.

PN43

MR McKENNEY: That's my instructions, your Honour.

PN44

THE VICE PRESIDENT: All right, fine. Now, the state of the evidence, Mr McKenney, from your perspective, I imagine that the recent appeal decision of the full bench in respect of the application to vary the retail award will be something that you've taken account of and may have had an impact on your thinking. I don't know whether it's correct to say - it may be a crude summary of the full bench's decision, but it essentially agreed with Watson VP that there was just simply inadequate or insufficient evidence to justify the variation that was sought in that case.

PN45

MR McKENNEY: It's a matter, your Honour, that the applicant is conscious of in terms of how it's approaching these matters.

PN46

THE VICE PRESIDENT: So what is the state of the evidence from your perspective? Do you still need to file more evidence?

PN47

MR McKENNEY: Yes, we do, your Honour. I indicated to the president last time that as part of the evidence gathering process, there were further statements being obtained in relation to awards, whether there was already evidence before the tribunal - - -

PN48

THE VICE PRESIDENT: I have considerable sympathy for the logistical difficulties that those that instruct you face in assembling that material. It doesn't surprise me at all that you say that it's not all finished.

PN49

MR McKENNEY: Yes, your Honour. Obviously, from what I've just indicated to the tribunal, because of that fact, your Honour, we're not pressing other awards because of some of the difficulties associated with gathering sufficient evidence across all of the awards that we initially pressed, your Honour.

PN50

THE VICE PRESIDENT: Yes.

PN51

MR McKENNEY: So we are still seeking more time, your Honour, to provide to the tribunal some additional evidence, conscious, as your Honour has observed, about what the full bench has observed in the retail appeal in other matters about the requirement for an application under these provisions to meet a certain evidential burden.

PN52

THE VICE PRESIDENT: Yes.

PN53

MR McKENNEY: We want that opportunity to ensure that we've done everything we can to present that case adequately, your Honour.

PN54

THE VICE PRESIDENT: Yes. Thank you, Mr McKenney. So that brings me to what we will refer to as the strike-out application. As I read the transcript, you have essentially three points, Mr Fetter, and you're supported by various unions in those points. The first is a standing point that's taken, you say that the eligibility rules of VECCI has no standing to bring variation applications in respect of some of the awards in respect of which the applications have been brought.

PN55

MR FETTER: Yes.

PN56

THE VICE PRESIDENT: Obviously the information that Mr McKenney has just conveyed about abandoning 31 of that group of 33 will have an impact on that, but I assume that there are still applications in the group that remains, which will be a total of 34 awards, where the standing point is still pressed. Secondly, there's an issue around whether or not the variations that are sought are "necessary" within the meaning of section 157. Then finally, there's a point that could be described as an abuse of process point, the modern awards having been made so recently by (indistinct) the full bench of the Australian Industrial Relations Commission, there having been an opportunity for full argument. Nothing really having changed, the matter settled, so to speak. I think that's a rough summary of the way you put the point.

PN57

MR FETTER: Yes, your Honour.

PN58

THE VICE PRESIDENT: Now, the president I think flagged a concern with any notion that there might be a need for evidence on the strike-out point, and I think observed that if you have to start calling evidence that goes to the merits, then you're really outside of the strike-out rubric. But it seems to me that there are certainly narrower points within the ambit of what I've referred to as the points that you're advancing, which can properly be advanced in the absence of the calling of any evidence, and it would be appropriate to set a time, which ought be discussed with the parties, for the determination of the application. Now, Mr McKenney, from your client's perspective, and I'm very much in your client's hands here, because if it wants to go on and do the work, it can, but I assume that VECCI would prefer not to devote significant additional resources until it knew where it stood on what I might describe as the narrower strike-out basis.

PN59

MR FETTER: Your Honour, just before Mr McKenney responds, might I just elaborate on the grounds of our application and explain how the evidence point relates to the ground? Because I'm not, with respect, your Honour, entirely sure that it is the case that some of the grounds have to be narrowed to pursue a hearing of the case.

PN60

THE VICE PRESIDENT: It isn't so much a question of narrowing them, but one of the ways in which a strike-out might success in the courts, and the jurisprudence in the courts I suppose is the obvious starting point here, given that there's no specific provision that deals with strike-out, and therefore to the extent that it's available, and I appreciate that itself is potentially a live issue, it would be pursuant to the general procedural powers conferred on the tribunal, and when one goes to look for how those powers might be exercised, I imagine that the principles laid down in the courts would be the obvious starting point.

PN61

I think two general propositions emerge, on my understanding, and I'm open to being corrected. The first is that, generally speaking, contested facts will not be resolved on a strike-out application; and secondly, to the extent that the ground is "no reasonable prospects of success", in a General Steel sense, there's a question mark about the extent to which the recent High Court decision has modified General Steel or not. But whatever the test be, the approach is, take the applicant/plaintiff's case at its highest, assume - I mean, if it were a court of pleading, you would simply assume the facts in the pleading, and then ask the question whether there were no prospects of success. Now, are we on the same page, Mr Fetter?

PN62

MR FETTER: We are, your Honour. I accept all of that, except to say that we will be making submissions about the way in which the tribunal's power to, as we say, strike out a matter, where they come from and how they operate. But we would suggest that reference should be had to (indistinct) under section 111(1)(g), to refrain from hearing a matter, we will be arguing that some of that jurisprudence has carried over into the current act. It was the practice of the former commission to refrain from hearing matters when some evidence had already been admitted. So already the practice of the commission did depart from the practice in the courts, and we will be making submissions that that was entirely appropriate and in fact should be continued. But if I can just hold that point and run through the grounds and make it clear that the first ground, which is the abuse of process point, does not rely on the admission of - - -

PN63

THE VICE PRESIDENT: Any evidence at all?

PN64

MR FETTER: So we think that that can and should be heard first. The second point - - -

PN65

THE VICE PRESIDENT: I mean, strictly speaking, there are factual assertions wrapped up in it, but they're not factual assertions that in any way touch upon the (indistinct) applications.

PN66

MR FETTER: Yes, that's right, your Honour.

PN67

THE VICE PRESIDENT: They had to do with what was or wasn't before the full bench of the AIRC when it made the modern awards, and the process that followed. But all of that I assume is a matter of uncontroversial objective fact.

PN68

MR FETTER: Yes. So obviously there are some facts there that will have to be made reference to, but I don't believe they will be contested, because they're for a matter of record in a sense, your Honour.

PN69

THE VICE PRESIDENT: Yes.

PN70

MR FETTER: So we think that there are no problems with the first ground in terms of the way the proceedings have been conducted until now. Secondly, in relation to the standing point, the question of whether or not the applicant has standing, I guess again has to be (indistinct) with reference to facts - - -

PN71

THE VICE PRESIDENT: It's in the same category, it doesn't require - - -

PN72

MR FETTER: - - - but we don't think that that will be contested. In fact, by making the admission, or withdrawing the 31 matters, it seems that the applicant has essentially conceded the point there, and we think that there are probably - - -

PN73

THE VICE PRESIDENT: I don't take Mr McKenney as having conceded anything. If anything, he was inter-cutting that there were certain practical logistical considerations that bore heavily upon the applicant.

PN74

MR FETTER: That may be so, your Honour, but we think that to the extent that there remain applications in respect of which the applicant does not have standing, that can and ought be determined with reference to facts that ought not be contested between the parties.

PN75

THE VICE PRESIDENT: Yes.

PN76

MR FETTER: It's just a matter of, do they have a properly enrolled member covered by the award?

PN77

THE VICE PRESIDENT: Yes.

PN78

MR FETTER: I did raise before the president the problem, though, that in terms of the onus of proof, although it's our strike-out application, in a sense the knowledge of who the applicant's members are reside with it, and so to the extent that further evidence needs to be brought, we did say that the onus should be on the respondent through our strike-out application, to establish that it does have standing.

PN79

THE VICE PRESIDENT: Well, I don't know whether it's, at the end of the day, in a practical sense, useful to trouble yourself with notions of onus of proof. In any event, even if one did, there's a shifting evidentiary onus concept that comes into play here, and once you've raised the point, there is an evidentiary onus that shifts to VECCI to establish that it does have standing, and I think Mr McKenney is probably more than happy to recognise that they're going to have to embrace that particular difficulty and confront it. I'm sure he has instructions that allow him to confront it head-on. Am I right about that, Mr McKenney?

PN80

MR McKENNEY: Yes, your Honour.

PN81

THE VICE PRESIDENT: Fine. Thank you.

PN82

MR FETTER: So if VECCI were able to satisfy the tribunal that it had standing in relation to the remaining matters, of course that ground of our strike-out application need not be pressed. So we anticipate that only affects a small number of the remaining set of awards affected.

PN83

THE VICE PRESIDENT: I think what you should do, Mr Fetter, is notify Mr McKenney of which awards you do challenge. It shouldn't just be a comprehensive blanket job lot proposition. It should only be those awards where you or your affiliates genuinely think that there is no standing because you can't think of an employer, but as a member of VECCI, that would be covered by the relevant.

PN84

MR FETTER: Yes, your Honour. Then that leaves the third point, which has to be understood, I think, in relation to the directions made by the president. So - - -

PN85

THE VICE PRESIDENT: There's only been one set of directions; that's the directions of the 25th.

PN86

MR FETTER: Yes.

PN87

THE VICE PRESIDENT: Although there was a canvassing of the making of directions on the last occasion that the matter is before the president on 22 October. In fact, no directions were made on that day.

PN88

MR FETTER: That's right. I'm referring to the directions issued on 25 August, following the mention on the day previously, at which we had it furthered that we would seek to bring this strike-out application. In our view, pursuant to that notification that we did intend to formally bring the application, his Honour made directions that VECCI should in a sense show a sense of the evidence on which it would rely, so that we could make up our minds as to whether or not to press our strike-out motion. So in paragraph 2, VECCI is directed to file an outline of its submissions, together with any witness statements and other material on which it will seek to rely. So we read that, your Honour, as a direction essentially for VECCI to show the material case that it would seek to bring.

PN89

A variety of witness statements were filed at the time, so it's clear that despite the logistical difficulties my learned friend adverted to, they were able to, in quite a generous time frame of six or eight weeks, obtain evidence. But then on reviewing the evidence, it's clear to us that in respect of, on our account, 29 of the modern awards that were subject to the application, at least at the date which we formulated our grounds, there was only a single witness statement in support of the application to vary that award, and only yesterday, your Honour may know - - -

PN90

THE VICE PRESIDENT: Mr Fetter, you're probably pushing against an open door here. I'm sure Mr McKenney is happy to embrace the proposition that the evidence is even today incomplete, and that is in the grand scheme of things hardly surprising. Anybody who had anything more than a passing involvement in award modernisation would appreciate the magnitude of the task, and the evidentiary burden that is suggested by the cases in this area now, the subsequently decided case, is such that it is a significant burden on VECCI to assemble or marshal evidence for so many awards.

PN91

MR FETTER: Yes, your Honour. But we press this point because at the directions hearing my learned friend said that VECCI intended to go, I think the quote was, "broader, not deeper", that it was intending to bring additional witness statements in respect of the awards, for which there were no statements at that time, but didn't intend to go deeper in the sense of bringing further evidence in relation to awards that already had some material. Now, the applicant - - -

PN92

THE VICE PRESIDENT: Just as a matter of fairness, Mr Fetter, fairness in the broad sense, VECCI has got to have an opportunity to reassess its evidence in the light of the National Retail full bench decision, I would have thought.

PN93

MR FETTER: Yes, your Honour.

PN94

THE VICE PRESIDENT: But there's no particular prejudice that you point to for yourself or on behalf of your affiliates you've referred to today which would be occasioned by a further period of time for VECCI to file evidence?

PN95

MR FETTER: No, your Honour. But of course the prejudice to the ACTU and our affiliates is if we're put to defend an application that rests on a single witness statement per awards. So that's where the prejudice lies. But if further time is given to VECCI to file material and they're able to rectify the position as it stands, then we wouldn't be able to assert that prejudice, your Honour.

PN96

THE VICE PRESIDENT: It's not your fault at all, but we've wandered sort of off course a little. To bring the focus back to the strike-out, I apprehend from what you're saying that there's really two relevant categories of strike-out objection: a category which consists of the standing point, the abuse of process point, and at least part of the necessary point, which can be heard and determined now without any reference to any evidence that goes to the merits of the applications; and then there's a second category of strike-out objection which is, once all of the evidence is in, that evidence in respect of that award is just insufficient, even if you accept it at face value, to justify the variation.

PN97

MR FETTER: That's right, your Honour.

PN98

THE VICE PRESIDENT: It's that second category that we're focusing on at the moment, as to whether or not it should be wrapped up in a single strike-out hearing or whether it's done in two stages with that second category dealt with after all of the VECCI evidence is in. Now, I really should seek Mr McKenney's views on this, but I would have imagined that as a matter of efficiency, VECCI would be more than happy to process to an early determination of the first category of strike-out points, the ones that don't rely upon any evidence going to the merits, so that they don't have to go to the trouble and expense of assembling additional evidence unless they're successful in respect of that first category of strike-out points, the ones that don't depend on evidence.

PN99

MR FETTER: Yes, your Honour. I think that's where we got to by consent, at least between myself and Mr McKenney, at the directions hearing that we proposed in the early hearing of the strike-out claim, to the extent that it didn't rely on that further admission of evidence; and then if we were unsuccessful in our application, we would proceed to a further hearing.

PN100

THE VICE PRESIDENT: Okay. Is that the way you'd like to proceed, Mr McKenney? No provision for the filing of evidence yet, set a date in the not too distant future for at least the narrow category of strike-out points that don't depend upon the evidence going to the merits.

PN101

MR McKENNEY: Yes, your Honour. That's consistent with what I told the president on the last occasion, your Honour, which was that - and my learned friend and I had discussions about how we might try and accommodate both of our respective interests, and what was proposed, your Honour, was that the strike-out application be heard and determined first. Obviously now you've articulated, your Honour, the basis upon which that would be done, in relation to what matters would be dealt with in that.

PN102

THE VICE PRESIDENT: Yes.

PN103

MR McKENNEY: Then assuming that was unsuccessful, I put to the president last time, your Honour, that the direction that I proposed last time could then work in terms of timing. Obviously that's now changed because - - -

PN104

THE VICE PRESIDENT: Yes, there's been a further delay whilst (indistinct) reconstituted, yes.

PN105

MR McKENNEY: Directions (indistinct) but my learned friend is right, we did have broad agreement about the programming issue, your Honour, in terms of his application to strike out the matter, or the ACTU's application to strike out the matter, to be heard and determined. Then, as your Honour has observed, that would be obviously convenient to the applicant, because if the ACTU was successful, your Honour, we wouldn't have been put to that extra trouble and burden of costs for obtaining the evidence.

PN106

THE VICE PRESIDENT: Yes. Fine. Well, it will be very difficult, particularly at this time of the year, to accommodate the convenience of everybody. In fact, I imagine it will be impossible to accommodate the convenience of everybody. But it seems to me that at least, given that Mr Fetter has the lead role on the opponent's side, and you have the carriage of the applications, Mr McKenney, I should be trying to endeavour to accommodate the convenience of the two of you.

PN107

MR McKENNEY: Yes.

PN108

THE VICE PRESIDENT: Would 2 or 10 December be suitable days to deal with these narrower strike-out points?

PN109

MR McKENNEY: I'll just check on my side of the fence here, your Honour, if that's convenient.

PN110

MR FETTER: Your Honour, it would be preferable from my point of view if it were 10 December.

PN111

THE VICE PRESIDENT: Yes. That's not too far away, from your perspective, Mr Fetter?

PN112

MR FETTER: No, your Honour. I suppose because we're into December anyway, but we possibly have lost the opportunity, should our strike-out application be dismissed, to have hearings before the end of the year.

PN113

THE VICE PRESIDENT: I think it's inconceivable that the substantive hearings in this matter, if your strike-out fails, could be completed before the end of the year.

PN114

MR FETTER: Yes.

PN115

THE VICE PRESIDENT: We are looking at a timetable that will be some months into 2011.

PN116

MR McKENNEY: Your Honour, on my side of the fence, we are content with the 10th by preference to the 2nd, your Honour.

PN117

THE VICE PRESIDENT: Fine. The 10th it will be. Now, it seems to me that the general basis of the ACTU's application, supported by other parties, has been well and truly articulated in the transcript, and again today, that there's no particular utility in requiring a specification of the grounds of the strike-out application. The only issue really is whether the parties think there should be some set of directions in respect of the hearing on the 10th, or whether we simply turn up on the day.

PN118

MR McKENNEY: Your Honour, perhaps a little bit unusually, in the outline of submissions that was filed with the tribunal on 8 October, the applicant has in fact responded to some of those issues that were raised in reasonable detail by my learned friend at the first direction.

PN119

THE VICE PRESIDENT: Yes.

PN120

MR McKENNEY: But my submission would be, your Honour, given there's a formal application, so to speak, before the tribunal about the grounds, it would be helpful, your Honour, in terms of being precise about the matters that are going to be raised, that we are to respond to if there is some direction for the ACTU to file at least an outline of submissions in relation to that.

PN121

THE VICE PRESIDENT: All right.

PN122

MR McKENNEY: I'm thinking of how the hearing could then be better facilitated, your Honour.

PN123

THE VICE PRESIDENT: Do you agree that there should be an exchange of outlines of submissions, Mr Fetter?

PN124

MR FETTER: Yes, we don't oppose that. They will largely be submissions as to law, so it's sometimes easier to do that in rhythm form than on one's feet.

PN125

THE VICE PRESIDENT: Fine. How long do you need, Mr Fetter?

PN126

MR FETTER: The trouble for me, your Honour, is that the ACTU has its executive meeting at the end of November.

PN127

THE VICE PRESIDENT: Yes.

PN128

MR FETTER: So if the submissions could be filed, say, by 3 December, would that be too late?

PN129

THE VICE PRESIDENT: The problem with that is going to be that it doesn't leave Mr McKenney with much time to put in his submissions.

PN130

MR FETTER: Yes, your Honour.

PN131

THE VICE PRESIDENT: But Mr McKenney is only talking about an outline. Certainly, they don't need to be full written submissions. The purpose of an outline is just to make sure that nobody is ambushed. You don't need to fully develop every argument in written submissions, just so long as the ambit of what's being argued is clearly pegged out in the outline.

PN132

MR FETTER: Yes. Well, if it's just to be an outline, then we could prepare that within a week or so.

PN133

THE VICE PRESIDENT: Okay.

PN134

MR FETTER: So what if your Honour gives us a Monday deadline, then we can work over the weekend.

PN135

THE VICE PRESIDENT: What about Tuesday the 23rd? Which is all of next week and then the Tuesday of the following week?

PN136

MR FETTER: I think that would be appropriate, your Honour.

PN137

THE VICE PRESIDENT: So the ACTU and any party that supports the ACTU will have - there will be a direction for an outline of submissions by 4 pm on the 23rd. Mr McKenney, would the 7th be suitable for you? I wasn't proposing for a reply submission.

PN138

MR McKENNEY: No, your Honour. The 7th is convenient if that's convenient to the tribunal.

PN139

THE VICE PRESIDENT: Okay. So 7 December for VECCI and any party that wishes to put in submissions in support of VECCI's opposition to a strike-out, and then the strike-out will be dealt with by the full bench on 10 December. We should postpone any further consideration of directions until that day? That was a question.

PN140

MR McKENNEY: Yes, your Honour. That seems - - -

PN141

THE VICE PRESIDENT: Mr Fetter, does that suit you?

PN142

MR FETTER: Yes, your Honour. Just two other matters: from our point of view, it would be unhelpful if parties, including those not represented today, were to keep filing material and submissions in the interim. So we would suggest that it be suggested in the statement which (indistinct) today that that - if these matters are not dealing with a strike-out but with the merits of VECCI's application. But in a sense, it's not helpful.

PN143

THE VICE PRESIDENT: Well, I don't know that it's appropriate to sort of put a ban on people at this stage, given that on any view, the evidence is incomplete. Most objective analysts would say, you know, any further material you get ahead of any direction for the filing of material sort of, if anything, delivers a benefit to you. But it won't be any material that you'll need to trouble yourself with until after the decision has been made on the strike-out application. You can rest assured that there will be a proper opportunity given to you to deal with any additional material that has either been filed by parties of their own initiative, or pursuant to directions that are subsequently made.

PN144

MR FETTER: Your Honour, to be frank, the problem that we have is that now that submissions and material filed go straight up on the Internet and is on public view, it's open, of course, to anybody to put in material which is, we would say, irrelevant, hearsay, inadmissible and all the rest, and it does, we think, prejudice the proper operation of the tribunal if these matters are put in. But parties don't have the opportunity to make those claims in relation to the matter for some weeks or months until the matter comes before the tribunal. So it's really a broader question about how material is now put on the Internet.

PN145

THE VICE PRESIDENT: Well, that's a different issue, Mr Fetter. Mr McKenney, do you have any difficulty with there being a moratorium on the posting on the Internet of any further evidence that's filed that is evidence going to the merits of the applications, as distinct from the strike-out?

PN146

MR McKENNEY: Just if I might have a moment, your Honour. Your Honour, without trying to be unhelpful, I think it's really up to the tribunal whether that sees that as an appropriate course. We don't have a particular view - - -

PN147

THE VICE PRESIDENT: I can't see any particular prejudice to anybody if we hold off posting material of that sort until 10 December, when this strike-out hearing occurs.

PN148

MR McKENNEY: Can I indicate, your Honour, that on the last occasion I informed the president that - upon questioning from his Honour as to the further evidence, I indicated there were further statements that had not yet filed, and so forth.

PN149

THE VICE PRESIDENT: Yes.

PN150

MR McKENNEY: We have not done that, your Honour. I'm happy to comply with what - - -

PN151

THE VICE PRESIDENT: Mr McKenney, it's a matter for you whether you file them now or wait.

PN152

MR McKENNEY: Yes.

PN153

THE VICE PRESIDENT: You're not going to be prejudiced by not filing them.

PN154

MR McKENNEY: No, your Honour. From the applicant's perspective, your Honour - I can only speak on behalf of the applicant - as far as what Mr Fetter suggests, we won't be taking any steps to (indistinct) currently being gathered to file that before 10 December.

PN155

THE VICE PRESIDENT: Okay.

PN156

MR McKENNEY: But as to the broader moratorium, your Honour, really that is a matter for the tribunal as to whether it sees that as appropriate in terms of this being a public tribunal and so forth.

PN157

THE VICE PRESIDENT: Yes.

PN158

MR FETTER: I thought I'd just clarify that we're not opposed to material being filed, it being placed on the web site in the context of - - -

PN159

THE VICE PRESIDENT: Well, obviously anything that bears upon the strike-out application needs to go up on the web site, because - - -

PN160

MR FETTER: Of course, your Honour. It's just the material - - -

PN161

THE VICE PRESIDENT: But let us be clear, this is not strictly an inter partes matter, because any application to vary an award activates an interest in any person, employer or employee, who is covered by the award. The approach that has been adopted to making material available on web sites, both for award modernisation and for applications like this, has been adopted with an eye to the procedural fairness issues that arise, given the peculiar nature of these applications not being strictly inter partes. But in any event, I don't think we have a problem here.

PN162

MR FETTER: No, we don't press the point strongly. It's just in relation to this matter, because so many awards are affected, there is the potential for a large volume of material to be placed on the Internet, and on our reading of the material to date, we have some serious objections to the content of material, which will be agitated at the proper time. But in the interim, it's not helpful for material which is critical of ourselves and our affiliates to be there, but I suppose perhaps that's life in the modern tribunal with the Internet.

PN163

THE VICE PRESIDENT: Yes. Well, I'm inclined at the moment to, just in an administrative way, put a hold on the posting of material that doesn't relate to the strike-out to the web site until 10 December, because there's going to be no time problems in terms of people having a reasonable opportunity to view material that might be posted after 10 December, because there will be a timetable that will necessarily extend into 2011.

PN164

MR FETTER: Yes, your Honour. I said there were two matters, so the second one is that because there have been a number of applications withdrawn, we are still slightly confused as to which matters are still live, so it would be helpful if the applicant were directed certainly to file formally notices withdrawing applications, and perhaps also to be directed to file some sort of list which is definitive as to the awards - - -

PN165

THE VICE PRESIDENT: I think a list rather than the actual notices of discontinuance at the moment, because it will err on the side of caution if it's required to formally discontinue. So, Mr McKenney, there's no difficulty, I take it, in at some point providing a definitive list of the applications that you will be proceeding with?

PN166

MR McKENNEY: No, your Honour. I already had instructions about that, and there's no need for a direction from the tribunal, your Honour. That will be done posthaste.

PN167

THE VICE PRESIDENT: Thank you. Is there anything else that you need to raise, Mr Fetter?

PN168

MR FETTER: No, your Honour.

PN169

THE VICE PRESIDENT: Is there anybody else in this who is supporting Mr Fetter's position who wishes to raise anything?

PN170

MS WILES: Your Honour, our only comment would be, from the TCFUA, that if that list can be finalised as soon as possible, so that affiliates are clear whether they need to defend their positions in relation to the strike-out application.

PN171

THE VICE PRESIDENT: Mr Fetter, I take it you're in a position to be a sort of central distribution point so far as affiliates are concerned?

PN172

MR FETTER: Yes, your Honour.

PN173

THE VICE PRESIDENT: So, Mr McKenney, can you get - there's no need for a direction, I understand that.

PN174

MR McKENNEY: Yes.

PN175

THE VICE PRESIDENT: But I take it you'll be able to get that list of the applications that are to be proceeded with by a couple of days into next week.

PN176

MR McKENNEY: At the latest, your Honour, yes.

PN177

THE VICE PRESIDENT: That's fine. Thank you. Is there anything that anybody else on the other side of the divide, those who support VECCI, wishes to say?

PN178

MR GREGORY: Nothing at this stage, your Honour.

PN179

THE VICE PRESIDENT: Okay, fine. Well, then the applications are adjourned to 10 December 2010 at 10 am for hearing of the ACTU strike-out application, albeit in respect of those grounds which do not depend upon a consideration of evidence going to the merits of the application. You can expect some formal directions to issue for outlines of submissions as already discussed. Is there anything from the bloke in Sydney? No? From the - yes?

PN180

MS DESILVA: Your Honour, I just wanted to put on the record, because it wasn't recorded in the transcript last time, that the state government has assumed a caretaker role pending the outcome of the state election. So we would just reserve an opportunity, if it is appropriate, after 27 November, to make any submissions in relation to public sector awards that are affected by the VECCI application.

PN181

THE VICE PRESIDENT: I see. Does that date of 10 December cause you any particular difficulty?

PN182

MS DESILVA: It shouldn't, pending the outcome, if it's (indistinct) on the 27th, but we won't really know that until thereafter.

PN183

THE VICE PRESIDENT: Yes. But the - - -

PN184

MS DESILVA: I understand the tribunal needs to deal with the application.

PN185

THE VICE PRESIDENT: Yes. Fine. Okay. But can I indicate that the full bench will do its best to indicate an outcome of a strike-out application on the day, even if reasons aren't given at that time, so that parties have certainty about whether the matter will be proceeding or not, and therefore, if it is to proceed, what the timetable can be. Finally, the tribunal is adjourned, then.

<ADJOURNED UNTIL FRIDAY, 10 DECEMBER 2010 [11.26AM]