PN1

THE COMMISSIONER: Good afternoon. I've got Mr Pollock?

PN2

MR A POLLOCK: You do, Commissioner.

PN3

THE COMMISSIONER: And Mr Duncalfe.

PN4

MR Z DUNCALFE: Yes, Commissioner.

PN5

THE COMMISSIONER: There's no one present with you, Mr Pollock, and there's Ms Zackerman with you, Mr Duncalfe.

PN6

MR DUNCALFE: That's correct, Commissioner.

PN7

THE COMMISSIONER: All right, thanks. Look, I've listed this matter for hearing really just because - well, for a start I didn't provide any directions for right of reply. One might want to be exercised. If not, that's fine. To be clear, I've read all the submissions and, thank you, they're comprehensive. You don't need to read them out to me again. It's really just an opportunity if there's anything else that you wanted to say, and if there isn't then it will be a pretty short hearing. I've got a couple of questions, but nothing of great import. So that's the basis for listing the matter. Mr Pollock, in that ‑ ‑ ‑

PN8

MR POLLOCK: Yes, thank you, Commissioner. If I can deal with the three issues that are before us for determination slightly out of order - and I don't intend to traverse in detail what I've put in writing, of course.

PN9

If I can deal firstly with the 188(1)(c) ground, the union in its written materials advance at paragraph 27 through to 40 our 188(1)(c) argument around what it describes to be the true reasons for Rigforce making the agreement.

PN10

Those were matters which were, of course, fully ventilated on appeal before the Full Bench and were matters on which permission to appeal was refused. The Full Bench made abundantly clear at paragraph 43 of the Full Bench decision that but for the incorrect statement regarding rates of pay in the explanatory document it couldn't identify any arguable ground of appealable error "on that score", that is, on 188(1)(c) grounds.

PN11

Of course, your directions on 18 November, Commissioner, at least the copy that I had, confined the grant - permission to be heard that was granted to the union to the three matters remitted to the Commission.

PN12

THE COMMISSIONER: Yes.

PN13

MR POLLOCK: So on that basis the submissions, and rather extensive submissions, at paragraphs 27 through to 40 of the union's submissions stand wholly outside that remittal, and with the greatest of respect to Mr Duncalfe, are merely an attempt at a second bite of the cherry on grounds which were squarely jettisoned by the Full Bench, and in my submission they ought be wholly disregarded here.

PN14

THE COMMISSIONER: Yes, okay.

PN15

MR POLLOCK: Of course, if you take a different view, Commissioner, then those are things that we would need to address further and argue afresh. We of course haven't engaged with them, simply because we are firmly of the view that those are matters that are outside the scope of the remittal and outside the scope of the grant of leave to be heard that you gave the AWU. If you have a contrary view, then that's a separate matter, but that's our primary ‑ ‑ ‑

PN16

THE COMMISSIONER: All right. So in the event that the considerations raised in paras 27 to 40 of the AWU's submissions were, I guess, turning points in my determination, or were going to be, you want to be heard on that again, because you have not engaged with it because you didn't think it was part of the remit.

PN17

MR POLLOCK: In our submission it's not part of the remit, Commissioner. I'd need to turn my mind to that issue. I mean, we had dealt with that issue quite comprehensively on appeal. Whether or not I would need to say anything further beyond that which was already argued and determined by the Full Bench, I'd need to turn my mind to that issue, and I must say I haven't, in circumstances where at least on the face of the reasons of the Full Bench and the face of the directions you made, there was no basis on which that issue would be properly raised.

PN18

THE COMMISSIONER: All right. I understand what you're saying.

PN19

MR POLLOCK: Yes.

PN20

THE COMMISSIONER: Well, probably anticipating what the AWU might say, but I'm expecting that of course they'll say it's to do with 188(1)(c) and that was part of what was remitted ‑ ‑ ‑

PN21

MR POLLOCK: To be clear, what was remitted was not 188(1)(c) broadly. What was remitted was the question of whether the incorrect - this is at 44(2) of the appeal decision.

PN22

THE COMMISSIONER: Yes.

PN23

MR POLLOCK: Whether the incorrect statement concerning rates of pay in the explanatory document has any consequence for the Commission's satisfaction otherwise under section 188(1)(c). When one reads that in light of paragraph 43, which says:

PN24

That makes it unnecessary for us to consider the AWU's submission in relation to 188(1)(c). It's sufficient to say that leaving aside the question of whether the incorrect statement in the explanatory document might give rise to a "reasonable ground for believing" under 188(1)(c), we cannot identify any arguable ground of appealable error on this score.

PN25

THE COMMISSIONER: Yes, I understand.

PN26

MR POLLOCK: So it's on that basis I ‑ ‑ ‑

PN27

THE COMMISSIONER: Yes. The 188(1)(c) is not at large, it's ‑ ‑ ‑

PN28

MR POLLOCK: The remittal, it's either what - what was remitted to you to determine is not a 188(1)(c) ground at large, it was whether the incorrect ‑ ‑ ‑

PN29

THE COMMISSIONER: Statement.

PN30

MR POLLOCK: ‑ ‑ ‑ explanation as to the rates of pay had any consequence for 188(1)(c).

PN31

THE COMMISSIONER: Then basically your argument on that is, as a matter of construction, that the incorrect statement was a 180(5) consideration, and then 188(1)(c) is like a catch‑all safety net, but it's ‑ ‑ ‑

PN32

MR POLLOCK: Anything other, yes.

PN33

THE COMMISSIONER: Yes.

PN34

MR POLLOCK: Quite right.

PN35

THE COMMISSIONER: It's mutually exclusive, in a way, so there's really nothing under 188(1)(c). That's the guts of your argument.

PN36

MR POLLOCK: That's the nub of the argument, of course, and, yes, obviously we have confront what the consequences of the incorrect explanation, the consequences of that for 180(5), and how that flows into genuinely agreed for 186(2)(a), and that, of course, we've dealt with in writing.

PN37

THE COMMISSIONER: All right.

PN38

MR POLLOCK: But I wanted to deal with that 188(1)(c) point right up front, because I think there is - if there's an issue to be had there, then that will obviously have broader consequences, but on my submission it's not in play.

PN39

THE COMMISSIONER: All right. Second issue?

PN40

MR POLLOCK: As far as the 188(2) ground is concerned, that is, whether the non‑compliance with 180(5) is excusable with reference to - or is it a minor procedural or technical error capable of cure under 188(2), of course we've set out previously in writing before the Full Bench the submissions in support of that ground.

PN41

I note the AWU's reference to paragraph 39 of the Full Bench's reasons around the importance of the explanation around rates of pay. Of course, those observations of the Full Bench were made in the context of 180(5) and not, respectfully, directed towards 188(2), but of course I can't run away from the fact that those observations are there.

PN42

What I would say, Commissioner, is that in circumstances where, based purely on the incorrect explanation that's hanging there, you would, of course - I think it would be as night follows day, you would form a concern as to whether or not the agreement had been genuinely agreed, on the basis that 180(5) would appear not to have been met.

PN43

THE COMMISSIONER: Yes.

PN44

MR POLLOCK: That really leaves you with a bit of a fork in the road, in the sense of, well, do we deal with this on the basis of an argument that it could be cured by way of minor procedural technical error, 188(2), or, after having formed that concern, is it amenable to undertakings.

PN45

Of course, whilst we formally press the submission with respect to 188(2), or at least we have maintained it, simply speaking, you probably don't need to deal with it. Even the undertaking that is proposed is one to which my client is, of course, happy to give, and, for the reasons that we've set out in writing, would cure, or substantively cure, the effect of the incorrect explanation.

PN46

I've of course set out in writing the various authorities, that is, BGC Contracting, Deputy President Beaumont decision in Karijini Rail Number 2, the Full Bench in Specialist People Number 2, of course, and, Commissioner, you would likely be aware of two very recent first instance decisions that have followed Specialist People Number 2. The first is Mechanical Maintenance Solutions. That's medium neutral citation (2019) FWCA 8471, a decision of Commissioner McKinnon, and also ‑ ‑ ‑

PN47

THE COMMISSIONER: What was the number? 84?

PN48

MR POLLOCK: 8471.

PN49

THE COMMISSIONER: Yes.

PN50

MR POLLOCK: And also SIMPEC Pty Ltd. That is medium neutral citation (2019) FWCA 5646.

PN51

THE COMMISSIONER: Yes.

PN52

MR POLLOCK: That's another decision of Deputy President Beaumont, each of which follows the approach that the Full Bench in Specialist People Number 2, which of course is consistent with Karijini Rail and BGC Contracting. So the nub of those authorities now really is this, that there's no longer any doubt that an undertaking of this sort is open to cure a genuine agreement concern, and certainly in my submission, in this case it's plainly appropriate.

PN53

The undertaking brings the rates of pay in line with the explanation that was given. It brings them well above - there was certainly no BOOT concern to begin with, but brings those rates well above the relevant instrument to which the explanation was given. There can't be any argument around circumstantial change ‑ ‑ ‑

PN54

THE COMMISSIONER: Just on that, you refer to, in paragraph 10, a minimum five per cent buffer.

PN55

MR POLLOCK: Yes.

PN56

THE COMMISSIONER: So I take that, and having done the calculations myself, obviously in respect of permanent employees, not casuals, but the issue arose in respect of permanent employees.

PN57

MR POLLOCK: Yes.

PN58

THE COMMISSIONER: And the base rate is - well, it varies around 4.9, you know, rounded up to five, near enough, but where you've said a minimum five per cent buffer, it's the case, isn't it, that it is - I think it's five per cent for all three classifications, isn't it, or thereabouts?

PN59

MR POLLOCK: It's been a little while since I've done the percentage calculations. As I recall, Commissioner, there were some slight variations that increased that with respect to a couple of the permanent classifications a little higher than five per cent, but I must confess that I did those calculations at the time I was drafting the submissions. I don't have them immediately handy to me.

PN60

THE COMMISSIONER: No, I just can't see it. So the differences are between $23.36 and $22.25, which is $1.10 or so, and then $25.37 and 24.16, so again, $1.20, and 28.59 and 27.23, so again, $1.20, $1.30. So to me they all came out at around - you know, carry on about .1 of a per cent, but they're all around about five per cent.

PN61

MR POLLOCK: Commissioner, again, in circumstances where - without labouring the - going back and rechecking those calculations, I'm content to amend that paragraph of my submissions to reflect that five per cent buffer rather than a minimum five per cent buffer.

PN62

THE COMMISSIONER: Yes. I'm not being pedantic about it. I just wanted to make sure I wasn't missing something, that it was a minimum of five per cent ‑ ‑ ‑

PN63

MR POLLOCK: No, look ‑ ‑ ‑

PN64

THE COMMISSIONER: Hang on. That it was a minimum of five per cent and that some of them are 10 or 20 or some other amount.

PN65

MR POLLOCK: No, no, I'm content that - with respect to the permanent classifications there's no - you know, they're not wildly in excess.

PN66

THE COMMISSIONER: It's all pretty much the same. Yes, okay.

PN67

MR POLLOCK: Yes, that's right. Of course, the casual classifications, the corresponding increases are up to around 19 per cent.

PN68

THE COMMISSIONER: Yes, all right. So just on that ‑ ‑ ‑

PN69

MR POLLOCK: In those circumstances, given the ‑ ‑ ‑

PN70

THE COMMISSIONER: Just on that ‑ ‑ ‑

PN71

MR POLLOCK: Yes, sorry, go on.

PN72

THE COMMISSIONER: ‑ ‑ ‑ the submission is that that brings the agreement's terms in line with the explanation given to the voting group with respect to permanent employees, and the explanation was that they would be paid more than the ICS agreement, wasn't it?

PN73

MR POLLOCK: That's it. The explanation was rates have been increased.

PN74

THE COMMISSIONER: Yes, rates have been ‑ ‑ ‑

PN75

MR POLLOCK: As against the ICS agreement, and on the ‑ ‑ ‑

PN76

THE COMMISSIONER: Yes. So in that context, I mean, the query is why five per cent? Why not one per cent?

PN77

MR POLLOCK: Well ‑ ‑ ‑

PN78

THE COMMISSIONER: Or I'll put it to you another way. If the undertaking increased the rates by one per cent would that not also meet the ‑ ‑ ‑

PN79

MR POLLOCK: Of course it would. It would cure - it would be capable of curing that explanation, that is, it would bring it in line with the explanation, strictly speaking. Commissioner, if you were to have some residual concern that by priming those rates by five per cent as opposed to one, that somehow that gave rise to a substantial change concern, then that's something we could look at, but in light of the Full Benches in each of Kaefer and in MacMahon that simply increase in rates of pay by way of undertaking ‑ ‑ ‑

PN80

THE COMMISSIONER: No, no, I'm not fussed about the substantial change. I'm trying to understand the - the issue is about does it cure the concern, and, look, it might. I just wanted to understand the five per cent point, that was all.

PN81

MR POLLOCK: Yes.

PN82

THE COMMISSIONER: Yes, all right.

PN83

MR POLLOCK: But I think that's right. In the sense that I suppose any increase in - with respect, any increase above the ICS rate would bring the post undertaking agreement in line with that which was explained to the employees. So at the absolutely minimum it could in theory be brought up by, as you say, one per cent, .1 of a per cent - really anything that represents an increase. Of course, without going into the science of anything, I suppose we didn't want to be too cute about how that was framed up.

PN84

THE COMMISSIONER: Yes.

PN85

MR POLLOCK: Again, if there's some concern about that percentage increase and whether that raises some further issue, then of course that's something we're open to to further amendment, but I must say, it's not immediately apparent to me what that might be in the context of your assessment of whether or not the undertaking would mean the concern.

PN86

THE COMMISSIONER: Yes. No, I'll of course hear from the AWU, but I'll take that - I mean, I'll deal with whatever's proposed.

PN87

MR POLLOCK: Yes.

PN88

THE COMMISSIONER: And just on that, just to be clear, in your final sentence you say if I'm not satisfied you'll seek the opportunity to provide a revised undertaking.

PN89

MR POLLOCK: Yes.

PN90

THE COMMISSIONER: Well, I'm not asking you for one, but just to be clear, I'll be deciding this on what I've got. I'm not going into some merry-go-round where I go back and say, "No, I'm not sure about that. Do you want to have another go?" I just don't know where that ends.

PN91

MR POLLOCK: No, I accept that, Commissioner. I think what was the intent behind that final submission there was if there is some further issue or some further concern of which we hadn't been made aware to date which, you know, we could at this point be in a position to address by way of undertaking, then we'd of course want the opportunity to be able to deal with that.

PN92

THE COMMISSIONER: Yes. No, I've got nothing on that score, to the extent that substantial change or any such thing is not immediately apparent. The fundamental question is whether this undertaking resolves the concern. That's it.

PN93

MR POLLOCK: Yes.

PN94

THE COMMISSIONER: Yes, okay.

PN95

MR POLLOCK: In our submission it ‑ ‑ ‑

PN96

THE COMMISSIONER: It does.

PN97

MR POLLOCK: It does and it must, in that the concern was - or at least before the Full Bench and that which was remitted, was one that was confined to the inaccuracy in the explanation given, that is, that rates have increased, in circumstances where they had not increased as against the ICS agreement. This undertaking increases those rates.

PN98

THE COMMISSIONER: Yes, okay.

PN99

MR POLLOCK: That's all I wanted to say on those matters.

PN100

THE COMMISSIONER: Thank you very much. Mr Duncalfe?

PN101

MR DUNCALFE: Thank you, Commissioner. So I'll go in the same order as Mr Pollock did.

PN102

THE COMMISSIONER: Yes.

PN103

MR DUNCALFE: On 188(1)(c) and the criticism about us allegedly expanding beyond what the remit was, we obviously disagree with that, because as Mr Pollock said, I did make quite substantive submissions on that, and I wouldn't have poured my time into that if I thought it was just going to be thrown away or annexed away from the submission.

PN104

Our understanding of direction 2 of the directions that were published on 18 November was the incorrect statement concerning rates of pay in the explanatory document and any consequence that has for the Commission's satisfaction or otherwise of 188(1)(c). We believe that there is a clear consequence between the rates of pay in the explanatory document and what we have addressed in our submissions.

PN105

We think that the rates of pay - we merely just asked why those rates of pay in the explanatory document were described in that manner, and we think it's a reasonable characterisation and it is a relevant matter to take into consideration, the circumstances surrounding the agreement.

PN106

On the issue of whether or not there was any weight to our submissions on appeal under 188(1)(c), paragraph 43 speaks of our submissions on 188(1)(c) at the level of arguable ground of appealable error. In this situation I don't think we really need to reach the bar of an arguable ground of appealable error. We just need to raise the issues for the Commission's consideration in terms of the Commission being satisfied that the agreement was genuinely agreed.

PN107

So we obviously press our submissions and think that they are well within the remit of the directions that we were given and they are quite closely related to the provision of the rates of pay. The rates of pay that were provided, we asked why they were provided, and we gave our reasons as to why we thought they were provided, and in light of the explanation offered by Rigforce as to why that incorrect statement was made, the wholly unbelievable premise that they put forward, and ours is far more preferable in the circumstances.

PN108

Moving on to whether the consideration of the incorrect statement about the rates of pay is mutually exclusive because it's been dealt with under 188(1)(a) on the basis that 180(5) - because it was found wanting for that obligation, we disagree with that conceptualisation altogether.

PN109

They are not mutually exclusive, and in any event, we're talking about the consequences of the provision of that incorrect information for 188(1)(c), any other reasonable grounds, and we believe quite strongly that there is other reasonable grounds, being the provision of misleading information and also the lack of a fulsome explanation or full disclosure about the reasons for the agreement and the agreement's future use, as we have dealt with in our submission.

PN110

THE COMMISSIONER: Yes.

PN111

MR DUNCALFE: I believe that's all that was said about 188(1)(c). Next we've dealt with 188(2). I think it's quite immaterial that the Full Bench observed the importance of rates of pay for employees in relation to 180(5) and not 188(2). I don't see how the importance of rates of pay would change just because we're looking at a different section of the Fair Work Act. I think it's going to be the exact same level of importance to employees no matter what.

PN112

THE COMMISSIONER: Yes.

PN113

MR DUNCALFE: Our submissions on 188(2) are complete. I don't really have anything more to add to that, because in summary, there's just no - it's not a minor issue, and of course it causes the employees detriment, because they're covered by an agreement that now has lower rates of pay than the agreement they were previously covered by.

PN114

It was Rigforce's own evidence in the appeal that the employees were interested in whether or not their rates of pay could drop to the rates of pay in the agreement, and the answer was yes, they could. So that is a clear detriment. To be covered by an enterprise agreement and then vote for a replacement for that agreement with lower or inferior rates of pay, at least for the permanent employees, that's a clear detriment, so 188(2) just can't apply.

PN115

In terms of 190 and the availability of undertakings, we disagree that undertakings are available here. We understand with Specialist People - I'm not entirely across the two first instance decisions mentioned by Mr Pollock about SIMPAC and the one from Commissioner McKinnon, but I am familiar with Specialist People, obviously, and also I have my head around BGC and Karijini.

PN116

Specialist People concerned the failure to explain a detriment and therefore the removal of that detriment by the undertaking cured it for the Full Bench, as you know, Commissioner, as you were on it.

PN117

THE COMMISSIONER: Yes.

PN118

MR DUNCALFE: Karijini Rail and BGC both dealt with inadequate explanations, not plainly incorrect explanations, so I don't think they fall within the same character of the cases or matters or decisions that the applicant has relied upon in its submissions about section 190.

PN119

I also submit that with the other reasonable grounds under 188(1)(c), they can't be corrected or cured by undertakings, because it would be - especially the lack of a full disclosure about the reasons for the agreement and its future application, or at least intended future application, but in relation to the 180(5) issue about the explanation, there is no precedent for the plainly incorrect provision of information, particularly about rates of pay, that we're aware of.

PN120

Particularly, as I said, Specialist People, BGC and Karijini did not deal with that. They dealt with what was levelled at them, more criticised, as basically an explanation that wasn't good enough rather than an explanation that was plainly incorrect, and so I don't think that this is the same ilk as those and therefore it requires more careful consideration about whether or not an undertaking can be applied to cure an incorrect statement on such an important aspect of an enterprise agreement.

PN121

THE COMMISSIONER: Yes. You heard the exchange I had with Mr Pollock about, well, you know, why not one per cent, and he agrees that the test is whether or not it now, to use the line in the submission, that that would - or that any amount, in effect, would bring the agreement's terms into line with the explanation given to the voting group with respect to permanent employees. What do you say about that?

PN122

MR DUNCALFE: Obviously our main submission is that undertakings aren't available, but in this instance, if the submission is accepted that the undertaking to bring the agreement in line with the explanation given retrospectively to ensure that the terms of the agreement do reflect the explanation, in that they have increased - I assume that the rates of pay that we're talking about are the rates of pay in the ICS agreement, which is the current agreement.

PN123

THE COMMISSIONER: Yes.

PN124

MR DUNCALFE: Then, yes, a one per cent increase on the rates of pay in that agreement, provided that the rates of pay in that agreement weren't increased over the life of the agreement by some mechanism, would bring into line the proposed agreement, the terms of the proposed agreement into line with the explanation provided.

PN125

THE COMMISSIONER: Right, okay. Anything else?

PN126

MR DUNCALFE: No, Commissioner, unless you have any questions.

PN127

THE COMMISSIONER: No. Anything else, Mr Pollock?

PN128

MR POLLOCK: Commissioner, just briefly. The oral submissions that my friend just made with respect to 188(1)(c), towards the conclusion of those submissions, the way in which my learned friend characterised the nature of the other reasonable ground strayed, of course, plainly into the substance to what he actually complains about, which is the rationale for the making of the agreement and how the agreement would be used.

PN129

Those were, of course, plainly matters which were fully ventilated before the Full Bench, and one only needs to look at the written submissions that were advanced before the Full Bench and the transcript of the Full Bench hearing in order to see how that argument was addressed and dealt with. That's quite a separate issue to the consequences of the explanation of the rates of pay.

PN130

THE COMMISSIONER: Yes.

PN131

MR POLLOCK: It's a very separate issue. The issue that the Full Bench remitted was whether the incorrect explanation of rates of pay had consequences for 188(1)(c), not any other aspect of the rationale for making the agreement or any other aspect of the explanation of the agreement's terms or effect. It was that particular issue. It was that issue that you granted leave to be heard on, Commissioner. It's that issue upon which we have approached this redetermination.

PN132

THE COMMISSIONER: Okay.

PN133

MR POLLOCK: So it's for those reasons we say that issue is simply out of bounds and one that would be - wouldn't be addressed any further.

PN134

THE COMMISSIONER: All right.

PN135

MR POLLOCK: As far as the question of whether or not undertakings are available to deal with a 180(5) error of this kind, Commissioner, it makes no difference as to whether or not the failure to take all reasonable steps was as a result of an omission, as it was, of course, in Specialist People - Commissioner, you, of course, would be well aware, I argued the case before you, that that concerned a failure to explain the effect of those terms vis-à-vis certain awards which, at least on the employer's case, they were unaware had any application.

PN136

Whilst my learned friend would say, well, that's an omission as opposed to a plainly incorrect explanation, the consequence is, on either way you cut it, that all reasonable steps to explain the terms and the effect of those terms wasn't taken.

PN137

THE COMMISSIONER: Yes.

PN138

MR POLLOCK: That matter - and in turn, of course, 180(5), the consequence is not one for 188(1)(c), it's for 186(2)(a). The consequence is that the agreement was not genuinely agreed.

PN139

It is that exact concern, that the agreement ultimately wasn't genuinely agreed, which on the authority of the Full Bench in Specialist People Number 2, consistent with Karijini, consistent with, at least, the observations of Deputy President Gostencnik in BGC, and now also consistent with the decisions of each of Deputy President Beaumont and Commissioner McKinnon in SIMPEC and Mechanical Maintenance Solutions, those are matters which can be retrospectively cured by way of undertaking.

PN140

That is precisely what we seek to do here. There is no difference in substance between the undertaking we propose here and that which was proffered and accepted by the Full Bench in Specialist People Number 2.

PN141

THE COMMISSIONER: I don't think there's any doubt now that the section 190 undertaking is available, depending on the circumstances, to resolve a section 180(5) concern.

PN142

MR POLLOCK: Yes.

PN143

THE COMMISSIONER: The question is whether you can in particular concerns, and they're all different, and it depends on whether or not ‑ ‑ ‑

PN144

MR POLLOCK: I would accept that, Commissioner. I would say in this particular circumstance the failure to take all reasonable steps to explain the terms and effect of the terms was due to an inaccuracy in one line of the explanation document, that is, the rates had increased, when in fact the rates hadn't increased. The effect of the undertaking will be that the rates have increased.

PN145

THE COMMISSIONER: Yes.

PN146

MR POLLOCK: The point is as short and as simple as that. There, in my submission, is no basis upon which the undertaking proffered in Specialist People and accepted in Specialist People could have been accepted and an undertaking of the type proffered here would not be accepted. It agitates the same issue, and as was, of course, the case in Karijini Rail, of course, also. The undertaking proffered brought the terms of the agreement back into line with that which was explained to the employees.

PN147

THE COMMISSIONER: Yes.

PN148

MR POLLOCK: It is consistent with those authorities. There's no substantive difference on these facts which would militate towards any different outcome.

PN149

THE COMMISSIONER: Okay. That's it?

PN150

MR POLLOCK: Lastly, my learned friend, of course, accepts that a one per cent increase would - assuming, of course, the number taken is available, would address that concern. We have, of course, proposed the undertaking in the terms of five per cent. Obviously my learned friend accepts that one per cent would address the concern. If one per cent would address your concern also, Commissioner, then we are, of course, in a position to give an undertaking in those terms. Ultimately it's for us to shape the undertaking to meet your concerns.

PN151

THE COMMISSIONER: Yes. Well, the way it works is there's no doubt that I have a concern. You've proffered an undertaking to satisfy that concern. I'll consider whether it does satisfy the concern. I don't think - I'm not sure that what was said was that satisfies the concern. What you said was in answer to the question does it bring the terms in line with the explanation given, and the answer was ‑ ‑ ‑

PN152

MR POLLOCK: Yes. No, quite right.

PN153

THE COMMISSIONER: The answer was yes. There is still a live question for me as to whether or not in all the circumstances that satisfies the concerns. It's a unique situation, as many of these things are, but I'll give it some consideration and issue a decision in due course. I doubt that it will be before Christmas, but I'll get it out as soon as I can. All right.

PN154

MR POLLOCK: Thank you, Commissioner. I'm sorry, just before we close, do I take it from those observations that what I've put with respect to 188(1)(c) around what issues are on the table and what aren't - well, perhaps if I can put it this way. If, Commissioner, you were to ‑ ‑ ‑

PN155

THE COMMISSIONER: Yes. No, no ‑ ‑ ‑

PN156

MR POLLOCK: ‑ ‑ ‑ form the view that ‑ ‑ ‑

PN157

THE COMMISSIONER: Perhaps if I put it to you, if those matters I think are germane to the decision I'm going to make, you foreshadow that you want to be further heard on it, because you didn't engage with it, and I'll afford you that opportunity.

PN158

MR POLLOCK: Yes. That's fine, Commissioner. Thank you.

PN159

THE COMMISSIONER: In which case we'll end up with an interim decision about the matter. Okay?

PN160

MR POLLOCK: Quite right.

PN161

THE COMMISSIONER: All right, thank you.

PN162

MR POLLOCK: Thank you, Commissioner.

PN163

MR DUNCALFE: Thank you, Commissioner.

ADJOURNED INDEFINITELY [4.44 PM]