TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048936-1

COMMISSIONER HAMPTON

AM2012/355

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Fair Work Australia
(AM2012/355)

Applications in relation to part day public holiday provisions in various Modern Awards as a result of legislative change in South Australia






Adelaide

2.12PM, THURSDAY, 26 SEPTEMBER 2013

Continued from 19/12/2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN ADELAIDE

PN696

THE COMMISSIONER: I will take the appearances, starting in Adelaide. This is a conference. For the video purpose it might be easier if people remain seated.

PN697

MR D. PUTLAND: Mr Putland of behalf of Master Builders South Australia, Master Builders Australia, and its registered organisations.

PN698

THE COMMISSIONER: Thank you, Mr Putland.

PN699

MS L. HARRISON: Harrison, initial L, on behalf of United Voice.

PN700

THE COMMISSIONER: Ms Harrison.

PN701

MR D. BLAIRS: Donald Blairs appearing on behalf of the SDA Union.

PN702

THE COMMISSIONER: Mr Blairs.

PN703

MR H. WALGREN: Walgren, initial H, for Business SA.

PN704

THE COMMISSIONER: Mr Walgren.

PN705

MS S. HILLS: Hills, initial S, for the South Australia Wine Industry Association.

PN706

THE COMMISSIONER: Ms Hills.

PN707

MR H. LEPAHE: Commissioner, Lepahe, initial H, for ABI.

PN708

THE COMMISSIONER: Thank you, Mr Lepahe.

PN709

MR T. EVANS: Evans, initial T, for the Australian Hotels Association nationally.

PN710

THE COMMISSIONER: Thank you, Mr Evans.

PN711

MR C. STARR: Starr, C, on behalf of Ai Group.

PN712

THE COMMISSIONER: Thank you, Mr Starr.

PN713

MR A. STORY: Story, A, for South Australia Unions.

PN714

THE COMMISSIONER: Mr Story. Is that it for Adelaide? All right, Sydney.

PN715

MR A. BORG: Borg, initial A, of the CFMEU, and acting on behalf of the AMWU.

PN716

THE COMMISSIONER: Thank you, Mr Borg.

PN717

MS A. GRAYSON: If it please the commission, Grayson, initial A. I seek permission to appear on behalf of the Maritime Union of Australia.

PN718

THE COMMISSIONER: Thank you, Ms Grayson.

PN719

MR G. PARKS: Parks, initial G, on behalf of Restaurant and Catering Australia.

PN720

THE COMMISSIONER: Mr Parks. Is that it for Sydney? And last but not least, Melbourne.

PN721

MS S. REED: Commissioner, Reed, initial R, for the CFMEU.

PN722

THE COMMISSIONER: Thank you, Ms Reed. All right. Look, the purpose of this conference I hope will be self-evident from the statement which has been issued by the full bench on 12 September, but perhaps just to provide a little bit of focus, obviously I'm dealing here with the part-day public holidays issue which has occurred as a result of the part-day public holidays in South Australia. I'm sure we will all recall - in fact, I can't imagine where the last 12 months has gone - but we can recall that interim arrangements were made just less than 12 months ago - that is, late last year. And because of the arrangements at that time those arrangements were dealt with on an interim basis to apply only to that year; that is the 2012 year.

PN723

More recently a proposal has been made on behalf of a number of local parties to extend the interim arrangements to cover Christmas-New Year 2013 in the context that a full review would be conducted as part of the 2014 modern award review process. Now, in the lead-up to the full bench dealing with the matter I have informally - my office has informally canvassed most of the - if not all of the organisations that are represented today, and I should place on the record my appreciation for the prompt and useful responses that were given. Having informed the President about the nature of those responses, the full bench then issued the statement which I referred to earlier.

PN724

So the purpose of this conference is for me to be able to inform the full bench firstly in relation to those awards where there is apparent agreement, in which case the process will be relatively simple and straightforward; but secondly to isolate those awards where there might be a difference of view and to inform the full bench so that the full bench can decide how and when to deal with any awards that might fit into that category. So I think given that context, and bearing in mind that I have heard, at least from most parties, in a preliminary way; what would invite, initially at least, is those parties who have a contrary view.

PN725

So at the moment I don't need to hear from those that would support the proposal, but if there are any parties that have a contrary view I would be interested to hear what you have to say. So perhaps again starting in Adelaide; are there any contrary views to be expressed here?

PN726

MR LEPAHE: Your Honour - Commissioner, sorry - if I might start.

PN727

THE COMMISSIONER: Yes, Mr Lepahe.

PN728

MR LEPAHE: You will be aware and parties will be aware that my principals at ABI referred a letter to the commission on 6 September which outlined some concerns about the application of the schedule. Now, let me say at the outset that we support the process; we support the intention of the schedule. We acknowledge that last year was all very rushed, very much at the end of December, and we did what we had to do. But we're also mindful that given the effect of that this might be rolled over for another year and then be part of the next review and it might roll over, conceivably, again, it was a concern to us that a potential anomaly that was raised in our letter is something that we would prefer were looked at before the matters were settled.

PN729

We've outlined the concern in relation to subclause (1)(g). Now, we're not making any allegations; we're not saying that there has been abuse or any actual cases of exploitation of the provision, but our principals have simply highlighted the anomaly and believe it's appropriate to try and resolve that before settling the final draft. I've raised that with some of the parties here and certainly with our colleagues at Business SA. We would like to confine that conversation to the particular anomaly that we've raised; we don't want to widen it to try and end up with a re-draft of everything and start from scratch. And it's something that we think we could move on reasonably quickly.

PN730

We've talked informally amongst ourselves about trying to get this thing done by the end of next month, but as a general proposition we support the process but would like an opportunity to deal with that anomaly and perhaps come back to you with a form of words that sorts that out.

PN731

THE COMMISSIONER: Right. That anomaly, as you've described it, would that impact on each of the modern - however many there were - 113 modern awards that were varied?

PN732

MR LEPAHE: I think it's part of the determination which effectively flows through to the bulk of the awards, so.

PN733

THE COMMISSIONER: I think there were four variants, four or five.

PN734

MR LEPAHE: Five, I think.

PN735

THE COMMISSIONER: Five variants.

PN736

MR LEPAHE: Five, I think.

PN737

THE COMMISSIONER: Without checking on that, the issue you've raised is common to each of those, is it?

PN738

MR LEPAHE: I believe so. I don't have firm instructions on that, but I believe it would have an effect of the bulk of the awards.

PN739

THE COMMISSIONER: Okay. So your proposal is that there be some further presumably limited discussions to deal with that.

PN740

MR LEPAHE: Yes.

PN741

THE COMMISSIONER: And depending on the outcome of that it might be that there's a broad consensus that in addition to adjusting the date to include another year, there might be a minor variation to the model.

PN742

MR LEPAHE: Exactly, Commissioner.

PN743

THE COMMISSIONER: Okay.

PN744

MR LEPAHE: We understand the unions' concern about not wanting to open the whole thing up again and trying to get this done in a timely way, but we're committed to try and work within the parameters I've suggested to get it done practically and quickly.

PN745

THE COMMISSIONER: Yes. I mean, the issue may be - and this is a matter for the parties at the first instance - is if the issue hasn't produced any actual consequences as far as anyone is concerned, what would be the down-side associated with rolling it into the 2014 process, which will need to be more comprehensive? Presumably deal with other issues.

PN746

MR LEPAHE: I guess our concern is - - - 

PN747

THE COMMISSIONER: Look, there are other issues, from my perspective at least, that are left open by the interim arrangements. The minimum engagement periods, I think would be reasonably obvious to most parties that participated extensively in the previous process. But again, I'm not aware of any major actual issues, they're of more theoretical nature.

PN748

MR LEPAHE: And I'm not suggesting that there has been any abuse or any misbehaviour in that respect. Look, our only concern, I guess, is that it may be some time before we actually get to look at this properly as part of a 2014 review, given where we are in the current 2012 review.

PN749

THE COMMISSIONER: I do understand. All right. Look, before I hear general responses to that proposal, are there any other sort of contrary views to the process of rolling over and just changing the date? No-one else in Adelaide? Mr Putland, you look keen to - - - 

PN750

MR PUTLAND: No, just broadly to express Master Builders', I guess, support of the position put forward by Australian Business Industrial; in particular to re-emphasise that we do support the underlying principles of the model schedule, but where appropriate any ongoing ambiguity should be clarified.

PN751

THE COMMISSIONER: All right. Rather than take general comments, are there any parties in Sydney that have a different view? No. Silence is golden. All right. Well, look - and Melbourne?

PN752

MS REED: No, your Honour, we support the proposal.

PN753

THE COMMISSIONER: Okay. All right. Then perhaps it might be useful if I hear parties generally on the proposition the ABI has raised and has been supported by the MBA.

PN754

MR BLAIRS: Commissioner, I - - - 

PN755

THE COMMISSIONER: Yes, Mr Blairs.

PN756

MR BLAIRS: On behalf of the SDA we would, I suppose, thank you for convening the conference. The modern award - the hearings from 21 December last year came up with the schedules, and as far as we are aware there were no issues that subsequently arose from that - or not significant issues. And given that there is general agreement to roll over the interim arrangement for at least another 12 months to allow some further time for the issue to be dealt with on an award-by-award basis, we would support the rolling over of the schedules as they are.

PN757

We understand that there are some concerns in relation to the wording which we - as has been loosely described as clause (g), although it doesn't appear in clause (g) in all of them, but for the purpose of today's discussions we will call it clause (g). And we would suggest that if there is a real and legitimate concern that there is genuine confusion out there, then it would be appropriate to fix that up. What, however, we wouldn't like to see is people, I suppose, looking for potential problems or looking for ambiguities and trying to fix up problems that don't - you know, haven't actually arisen.

PN758

These schedules are interim. They are designed to be general in nature and not necessarily taking into consideration every possibility of every clause or every possible interpretation in every award. I mean, they are interim in nature. And as I think you rightly pointed out, if we were to open them up for a broad re-wording I think there would be 20 parties here and there would be 20 submissions as to how people would like to see the wording changed. So whilst we wouldn't be opposed to dealing with genuine issues that arise, we would think firstly it should be relatively limited in scope and limited to only dealing with genuine issues that have arisen, as opposed to potential issues that may arise.

PN759

To that extent we would support potentially a week, or less if appropriate, to allow the parties to put alternative wording on specific issues and which particular schedules they look to deal with. I think of the five schedules, two of them didn't have a schedule (g) at all; and of the other three it may only be an issue in one or two or potentially all three of them. So to identify which specific determination it relates to or which specific awards that the concerns relate to; what are the actual concerns; and what is the proposed alternative wording? And the parties may then be in a better position to have a more thorough response to the commission.

PN760

THE COMMISSIONER: Thank you. Who would like to go next? Yes, Ms Harrison.

PN761

MS HARRISON: Commissioner, United Voice would largely echo what Mr Blairs has put forward on behalf of the SDA. We have not identified any issues from our membership in relation to the operation of any of the schedules over the 2012 period and therefore don't believe that there is any real operational ambiguity created within the schedules. That said, if there are identified any actual issues with the operation of clause (g) within the schedules, we are open to discussing those operational concerns.

PN762

I should also say for the commission's benefit that United Voice - that I have had discussions with the Restaurant and Catering Association in the interim and there was some floating around of alternative wording for sub-clause (g). Unfortunately that didn't really reach a consensus and so we would propose that if there is going to be any further time or thought given to the proposed wording for schedule (g), that be on a reasonably short time frame and ultimately if the parties can't come to a consensus that it be left in the hands of the commission.

PN763

Having gone through the previous - my understanding of the historical basis for the clause (g) was that it was wording that wasn't ultimately the wording that was put forward by the majority of the parties in the 2012 review anyway and so that wording itself was something that came out of the determinations that were handed down by the full bench and they were sections, though, that there were significant submissions made on in the 2012 review process. So, Commissioner, United Voice is in your hands in relation to the dealing of sub-clause (g). We haven't had any identified issues with the operation of it, but we would be happy to deal with any real issues that arise from it.

PN764

THE COMMISSIONER: Thank you. Mr Walgren.

PN765

MR WALGREN: Thank you, Commissioner. In Business SA's experience the schedules have been successful in addressing the potential ambiguity and uncertainty that we saw in relation to the interaction of various provisions in the modern award, including the public holiday provisions and the annual leave provisions and the concept of public holidays. In our experience our members haven't had any difficulty in applying the various schedules so we're certainly supportive of rolling over the five schedules to this Christmas period and then looking at the permanent solution as part of the 2014 review.

PN766

We understand that ABI has expressed some concerns with (x.1)(g) and they have proposed some alternative - but they haven't proposed some alternative wording, pardon me - but they have expressed some concerns and pointed out some potential ambiguity as they see. In relation to going forward, well, we were hoping if ABI could provide alternative wording by end of next week to ensure that we can get a fairly quick resolution so that we can start informing our various members on the continuation of the schedules and get, I suppose, those businesses who were planning to trade during the Christmas-New Year period to put some plans in place, knowing how the award applies, and provide some more certainty. So if an alternative wording could be provided by end of next week, that would certainly be beneficial.

PN767

Apart from that, we are supportive of the schedules. We have had discussions with the local parties. In our view they have operated as intended, but if there is uncertainty, if that could be identified - specifically identified - and pointing out which schedules the variations or the amendments are being sought to, that would be beneficial. Thank you, Commissioner.

PN768

THE COMMISSIONER: Very well. Thank you. Ms Hills.

PN769

MS HILLS: If the Commissioner pleases. We've expressed our position in relation to the principle of rolling over for another year and we don't have any general opposition to that. However, we wouldn't oppose a discussion amongst the parties in relation to a clarification as suggested in paragraph (g) if it's limited and I guess, yes, if the efforts result in something not being an ambiguity, we would see that as being a positive. Thank you.

PN770

THE COMMISSIONER: Very well. Mr Evans.

PN771

MR EVANS: Thank you, Commissioner. Yes, as we've outlined in our submission we are reasonably comfortable for the provisions as contained in schedule H of the Hospitality and General Award to be carried over for 2013. We thought the resolution of that document that we got at the end of last year after a rather contentious period during 2012 for the circumstances was a pragmatic resolution. We have not had any issues arising from the application of schedule H for 2012 and from our perspective the issues that we thought about specific to the part-time days and the application of those hours and the rights of people all appear to work quite pragmatically and we've not really had any issues.

PN772

We acknowledge the position of ABI and the way they read it. I'm a bit like Ms Hills from the wine industry; if there is an ability to clarify any anomaly we're happy to look at that. But again, I don't think that we need to delay it too long. I'm prepared to look at the ABI's proposal, prepared to consider it; but as I've indicated, what we achieved last year and the circumstances of last year, end of the day are working pretty pragmatically and I'm interested in the comments from the SDA and United Voice. Certainly it appears their members did not receive any issues or raise any concerns and neither did we. So I think we ended up, Commissioner, with a relatively pragmatic document. But I am prepared to look at the ABI's proposal. Thank you.

PN773

THE COMMISSIONER: Mr Starr.

PN774

MR STARR: Yes, thank you, Commissioner. Our position is not dissimilar to the Australian Hotels Association. Our position clearly is that the interim arrangements of last year should be rolled over for this year, but given the ABI's comments, we're happy for a review of that in a short turnaround.

PN775

THE COMMISSIONER: Very well. Thank you. Mr Story.

PN776

MR STORY: Commissioner, we support the views already expressed by United Voice and the SDA. SA Unions has consulted with the ACTU and indeed we are the state branch of the ACTU. Asking them whether any affiliates had expressed concerns about the operation of the schedule, we're advised they haven't and in fact the ACTU isn't appearing today because they're satisfied with the way this matter is proceeding and are quite happy to have the schedules rolled over. We don't think the solution suggested by the Australian Business Group in their submission really addresses a genuine anomaly.

PN777

The idea of fixing a potential concern that hasn't manifested itself in any cases of abuse seems to us not an approach that we want to get involved in. We don't really see the need to delay this matter any further. If there are some proposals, other parties might wish to hear what they are, but we have asked for identification of particular employers who have been adversely affected or particular cases where a real anomaly has manifest itself and I think the concessions this morning really are that there aren't any. So we wouldn't agree necessarily to an approach of further discussions with the parties to address something which we don't really accept as a problem in the first place. If the commission please.

PN778

THE COMMISSIONER: Thank you, Mr Story. Mr Lepahe, I think the easiest thing to do would be to give you a right of reply, so to speak, once I've heard from all parties.

PN779

MR LEPAHE: Thank you, your Honour.

PN780

THE COMMISSIONER: After I've heard from Sydney.

PN781

MR LEPAHE: Sorry. I beg your pardon.

PN782

THE COMMISSIONER: All right. Mr Borg.

PN783

MR BORG: I would just echo what my friend from Unions SA has said, that we don't really see the point in any discussions if we don't really see any problem. And certainly none was really manifest in the letter that we received on the 6th. It doesn't even contain a proposal that we might consider. It has almost been a month. So prolonging it, I'm not too sure what the point would be. Ordinarily I would be inclined to discussions, but I just don't - you know, just to put it as briefly and succinctly as I can, where's the beef? What's it all about? You know, we could have had those discussions today, in fact, and that's what I'm here for, indeed; not to have it prolonged any further.

PN784

But as the gentlemen from ABI said, there's no evidence, so really, what are we going to discuss? I'd really like to know. So in default of any of that, we wouldn't be inclined to have any discussions in relation to this and prolong it any further when we've got a model clause which has functioned well, for which there is no evidence it hasn't functioned well, and find there might be a party that reads some potential - or indeed confected - ambiguity; but that's just the nature of things sometimes. It doesn't affect the rights that people have under this document, as they would no doubt propose to do. But that would be my submission, Commissioner. Thank you.

PN785

THE COMMISSIONER: Thank you. Ms Grayson.

PN786

MS GRAYSON: Yes. Thank you, Commissioner. The Maritime Union of Australia has an interest in relation to 10 awards made by the Fair Work Commission. I'm happy to provide the names of those to the commission. I'm not aware whether ABI or ABL appears for any employers that have an interest in those industries; perhaps that can be clarified. But in our view the schedules should just be rolled over as they are to allow them to operate for this Christmas period and then the parties who have an interest in particular awards in particular industries can deal with any real identified issues next year in the 2014 review.

PN787

We wouldn't want to see, I guess, what happened last year where we were all here till, you know, 5 minutes before midnight trying to finalise an appropriate schedule; concerned if agreement wasn't reached, what might happen then. We think probably the simpler and straightforward approach is just to roll it over in the absence of any real identified issues. If it please the commission.

PN788

THE COMMISSIONER: Thank you. Mr Parks.

PN789

MR PARKS: Thank you, Commissioner. Our sector has been significantly impacted by the part-day public holiday provisions. And to give you some facts around this, our South Australian entity did a survey of members in January 2013 and what came out of that was that there was a 66.3 per cent closure rate of cafes and restaurants in South Australia as a result of the Christmas Eve and New Year's Even public holidays. That's compared to a 20 per cent closure rate in 2011. So that is a significant increase in closures and a significant concern to those small businesses that we represent in their takings and profit margins that have been impacted by these provisions.

PN790

Now, having said that, we have had discussions with United Voice in respect to the schedule and we've raised similar issues identified by ABI and we have been seeking to remove some of those anomalies and concerns that have been identified by our members in relation to individual employees such as casuals thinking that they have some benefits under (1)(g), which was never the intention of those provisions. So we seem to be a little bit different to many other associations because our sector has been adversely impacted by the schedule. And having said that, we're prepared to roll over the interim arrangements, but providing we can come up with a satisfactory solution to this issue with (g).

PN791

THE COMMISSIONER: All right. Thank you, Mr Parks. Ms Reed.

PN792

MS REED: Commissioner, the union supports the proposal to roll over the existing schedule in the Timber Industry Award. You will note that the schedule in the Timber Industry Award differs from the model schedule, particularly and specifically in relation to the matters that are captured in clause (g) of the model schedule. And so we say that to the extent that ABI raise an issue about clause (g) of the model schedule, or they allege that there's an ambiguity in it, and we have to say that we can't actually tell what that alleged ambiguity is from their correspondence and we haven't experienced any trouble or ambiguity with the application of the schedule.

PN793

It's our view that that ambiguity can't possibly arise in relation to the timber industry award anyway because clause (g) is so substantially different from the terms in the model schedule; and that because of the industry-specific nature of the provisions already in the Timber Industry Award in relation to public holidays, and so we don't see any utility in having further discussion in relation to the ambiguity that the ABI suggest exists.

PN794

THE COMMISSIONER: Thank you. All right, Mr Lepahe.

PN795

MR LEPAHE: Thank you, Commissioner. I've listened carefully to what has been put. I might just make the point that we were part of the proceedings at five minutes to Christmas last year and we proceeded with, I think, a lot of goodwill and constructive - - - 

PN796

THE COMMISSIONER: I think that's universally so.

PN797

MR LEPAHE:  - - - and constructive conduct in relation to helping get these things done. We have raised an ambiguity. We've raised it in our letter at paragraph 2.2 where we clearly explain the constructions that can be drawn from the clause. And our letter also makes it clear that we don't oppose the rolling over of the schedule into 2013; we just say we think there's an ambiguity and we should sort it out. And in doing that I don't think we're actually suggesting any prejudice to any party, we're just saying we can do better.

PN798

So we're not trying to block it; we're not trying to stop in being rolled over at Christmas. We have a view this might be rolled over beyond Christmas 2013, for obvious reasons; and we think if there is an ambiguity that by construction, a lot of lawyers looking at clauses and interpreting documents, if we have identified that and articulated that - and we have - it should be discussed and tried to be sorted out. And that's all we've put. The unions don't want to talk to us; well, that's fine, but we think the ambiguity is there and it should be discussed and resolved, and we've offered to do that in a timely way before the end of next month.

PN799

So in relation to the proposals by my friends that ABI perhaps look at some alternatives in the next week, I think we can do that. We're not looking, as I said, to stymie or hijack or do anything in these proceedings other than be constructive and get a better clause. And everyone will have a different interpretation because everyone's business and industry will work in a slightly different way, and we accept all that; but I think the construction that we've raised is real, not confected. ABI has an interest in some 40 awards, as I understand it, as part of this awards review.

PN800

I can't answer my friend from the Maritime Union as to whether we've got common awards with them. But I think our interest is significant enough to at least be deserving of some review and some more work to try and make this a better clause. As I said, there's no prejudice to any party by what I've suggested, and on that basis alone it ought to be - in my view it ought to be considered.

PN801

THE COMMISSIONER: Very well.

PN802

MR LEPAHE: I'm happy to answer any questions, Commissioner, if you have any.

PN803

THE COMMISSIONER: No, I can understand and respect your position. Does anyone else want to make a contribution at this point?

PN804

MS REED: Commissioner, it's Ms Reed from the CFMEU here.

PN805

THE COMMISSIONER: Yes, Ms Reed.

PN806

MS REED: I should also have added that I spoke - prior to the conference I spoke with Ms Watt of the Timber Merchants Association and she asked me to convey to the commission that the Timber Merchants Association would also support the rolling over or the retention of the current schedule I of the Timber Industry Award in its current form.

PN807

THE COMMISSIONER: Yes, thank you, Ms Reed. I was remiss of not putting that on the record. My associate did advise me of that as well. So thank you for that. All right. What I propose to do is this: firstly I will consider what has been said and the likelihood is that I will issue some directions. Bearing in mind that I'm acting in effect as an agent for the full bench, my responsibility is to prepare a report for the full bench confirming the positions. Now, at the moment if I were to do that report, what that report would have to indicate is that for some awards there doesn’t appear to be any issues because I don't think the sub-clause (g) issue affects all awards.

PN808

There are some awards where there's apparent consensus that the interim proposal should be rolled over; there are a number of awards, and probably the majority of awards, where some parties are raising issues about whether there should be a modification to (g). In that context what I would need to do is report to the full bench that there is an issue there and that is a matter then that the full bench would have to probably hear and determine. Now, it would seem to me that there would be little, if any, prejudice associated with allowing the parties some opportunity to deal with that to see whether a consent position can go forward.

PN809

Now, in that context those directions are likely to require the ABI to provide any proposal to the other parties within a really very short time frame. It will also provide that if parties have a view about that then they are to confirm that with the ABI and other parties, again within a very short time frame; and in due course to advise my office of the status of that. Now, if that reveals that there is a way of accommodating the respective views then obviously I will reflect that in my report and the likelihood is that the full bench will deal with these matters on a strictly ex parte basis without conducting any formal hearing at all.

PN810

If that can't be resolved and issues remain, well then, at least I think the positions will be better understood. And ultimately if the full bench does need to conduct a hearing it will be very narrow, and as I said, the positions of all parties will be clearly understood. And in that context I will be optimistic that the matter either way can be dealt with well in advance of five minutes to Christmas, to use Mr Lepahe's excellent expression.

PN811

So in that context I will adjourn the matter with liberty to apply. I do that partly because it may be that if what results from that is a partial consent position, but one where the assistance of the commission might be useful to actually resolve any outstanding differences, I'm happy to reconvene the conference and do that. I think it's a bit premature today because I think, Mr Lepahe, you and those organisations that support your position, the ball is in your court to put up an actual proposal. I think it's therefore premature to ask others to respond to that until we do that.

PN812

MR LEPAHE: I agree.

PN813

THE COMMISSIONER: So otherwise I would have tried to do that this afternoon, but I think that's the appropriate course of action. As I said, I will grant liberty to apply; otherwise I will deal with it in accordance with the directions and the full bench will deal with the matter expeditiously one way or another. Unless there's anything arising from that - not here in Adelaide. In Sydney? No. Melbourne? No. Very well. Thank you for your participation. I will issue those directions shortly.

<ADJOURNED INDEFINITELY [2.48PM]