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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009

 

DEPUTY PRESIDENT KOVACIC

 

AM2014/190

s.156 - 4 yearly review of modern awards

Common issue - Transitional provisions - Accident Pay

 

(AM2014/190)

 

Black Coal Mining Industry Award 2010

[MA000001]

 

 

 

 

 

 

Canberra

 

3.00 PM, WEDNESDAY, 27 SEPTEMBER 2017


PN1          

THE DEPUTY PRESIDENT:  Good afternoon, everybody.  Can you hear me clearly?

PN2          

MR FAGIR:  Yes, thank you.

PN3          

MR GUY:  Yes, your Honour.

PN4          

THE DEPUTY PRESIDENT:  Thank you everyone for that.  I should indicate that this afternoon's hearing is being recorded so I might just ask people to state their name, their appearance for the purposes of the record.  Perhaps if I can start with you, Mr Fagir?

PN5          

MR O FAGIR:  I appear for the union, the applicants for the order for production.  I am instructed by Mr Guy, who isn't with me but is on the call.

PN6          

THE DEPUTY PRESIDENT:  Yes.  Thank you.  Welcome, Mr Guy.

PN7          

MR A GUY:  Thank you, your Honour.

PN8          

THE DEPUTY PRESIDENT:  Mr Sebbens?

PN9          

MR T SEBBENS:  Yes.  Thank you, your Honour.  My name is Mr Sebbens, S-e-b-b-e-n-s, initial T, solicitor.  I appear for the group called the Coal Mining Industry Employers Group.  I don't have with me Ms Lloyd.  She's off sick today.  But on the call is Mr Gunzburg, who can give his name for the record.

PN10        

THE DEPUTY PRESIDENT:  Thank you.

PN11        

MR D GUNZBURG:  David Gunzburg appearing with Mr Sebbens for the Coal Mining Industry Employers Group.

PN12        

THE DEPUTY PRESIDENT:  Welcome, Mr Gunzburg.  Thank you, everyone, for making yourselves available.  Before we turn to I think the items that were at 4(a), 4(c), 5(a) and 5(c) of the draft order, can I just ask in respect of the other matters that we discussed last week, in respect of items 4(b) and 5(b), Mr Sebbens, was the outcome that there were no additional documents to those referred to and attached to Mr Gunzburg's statement?

PN13        

MR SEBBENS:  In respect of item 4(b), your Honour, that's generally the case.  We have sent today just for completeness to Mr Guy an email that confirms that the documents that are referred to in both of Mr Gunzburg's statements are either attached in whole or in part.  The ones that were only extracts we have now emailed the complete version of them.

PN14        

THE DEPUTY PRESIDENT:  Yes.

PN15        

MR SEBBENS:  In respect of another document that was not capable, just because of its size and nature, of being printed and attached, we've now provided the electronic version of that to Mr Guy, and we'd otherwise confirm that the statement of Mr Gunzburg expressly refers to the documents he relies upon and either attaches them or sets out links to them.

PN16        

THE DEPUTY PRESIDENT:  And in respect of the documents referred to in Dr Adam's statement?

PN17        

MR SEBBENS:  In respect of Dr Adam's report we have liaised or attempted to liaise with Dr Adam.  I think I mentioned on the last occasion that Dr Adam was likely to be travelling overseas.

PN18        

THE DEPUTY PRESIDENT:  Yes.

PN19        

MR SEBBENS:  That turns out to be the case.  We've managed to engage in some limited email communication with Dr Adam and also speak to his assistant at his office.  We haven't been able to conclude those inquiries of Dr Adam however because of his limited access to a computer and to any printed materials he may have had, so unfortunately we haven't been able to resolve that point.

PN20        

In respect of the brief that we provided to Dr Adam, which was an electronic brief, I've similarly emailed APESMA to offer to either provide that brief in its electronic form, on a USB drive, or a downloadable share file and we can ensure that happens promptly once we're let known what's the preferred method of providing that.

PN21        

THE DEPUTY PRESIDENT:  So in terms of the outstanding issues in respect of Dr Adam's report do you have a sense of what sort of timeframe we're talking about in terms of resolving that?  Resolving may not be the right word but at least clarifying the situation.

PN22        

MR SEBBENS:  We've emailed Dr Adam again, I think it was yesterday, or it may have been the day before, and have not yet had a response from him.  He's travelling in Canada as we understand.  We've also spoken with his office yesterday to see whether or not they can assist.  Unfortunately I don't have a timeframe.  The document that we anticipate that may exist, there may be one or two additional documents that Dr Adam relied upon primarily being, it appears, more recent versions of some of the documents that we provided in our brief but we're just wanting to confirm that with Dr Adam, and to obtain from him the very document he downloaded and relied upon.  But we believe it's of that very nature.  There is not a whole series of additional documents that we anticipate are in existence.

PN23        

THE DEPUTY PRESIDENT:  All right.  Mr Fagir, as we work through these issues I might just sort of throw to you to say anything you might wish to in respect of these particular items.  So is there anything you wish to say in respect of where we're at in respect of items 4(b) and 5(b) of the draft order?

PN24        

MR FAGIR:  Yes.  If I could start with 4(b), that is the Gunzburg material, we received about an hour ago an email.  The email, at least on my reading, is ambiguous as to whether the documents relied upon by Mr Gunzburg have or have not been produced.  It refers, for example, to some kind of intermediate document, tables and charts that Mr Gunzburg prepared.  They're not produced.  It's not clear to us whether they're intended to be produced, and in respect of Mr Gunzburg the email concludes by inviting my clients to identify any materials which they think have not been produced.

PN25        

Can I say two things:  firstly, could I ask, through your Honour, Mr Sebbens to give us some clarity about this?  Have the documents been produced or are there any other documents; and secondly, can I say that in my submission it's not for us to trawl through the report and try to work out what documents may have been relied upon and not produced; it's for Mr Gunzburg and his solicitors.  The documents should be produced and Mr Gunzburg will be cross-examined on that basis.  What we don't want to do is start cross-examining Mr Gunzburg and have him start referring us to documents, material, et cetera which have not been produced to us.  So it may be that I'm jumping at shadows if there's nothing else out there, so could we have some clarity about that?  Secondly, if there is anything that's been relied upon and not been produced, in my submission, it should be produced immediately, as in, this afternoon.

PN26        

THE DEPUTY PRESIDENT:  Mr Sebbens, can you sorry, Mr Fagir.

PN27        

MR FAGIR:  That's what I wanted to say about Mr Gunzburg.  It might be easier to deal with that first, and then I'll say something about Dr Adam.

PN28        

THE DEPUTY PRESIDENT:  Yes.  Yes, Mr Sebbens, is there anything you can say in response?

PN29        

MR SEBBENS:  In respect of Mr Gunzburg's statement what we have said is that the materials he expressly refers to have been annexed to his statement, and to the extent that there was one document which was an extract of a report of Coal Services Proprietary Limited, we've now provided the complete copy of that report.  In respect of Mr Gunzburg's second statement he referred to an ABS data file which was not capable of being printed and annexed, and we've now provided the electronic copy of that.

PN30        

In respect of, and we've asked for the unions' views on this, we've expressed the view that we take it that the call for documents does not include spreadsheets that Mr Gunzburg may have prepared which he prepared by drawing upon data in the materials that he expressly referred to and attached to his statement, and then charts that he prepared from those Excel spreadsheets, similarly relying upon the data which is drawn from the materials that are expressly referred to and annexed to his statement.  We expressed the view that we considered that those were not called for within the proposed item and we asked for clarity whether or not that was an incorrect assumption, and whether or not that is called for.  So Mr Fagir might similarly provide us a response in that regard.

PN31        

Beyond that we consider that we have provided the materials that are called for but we sought clarity to avoid any doubt whether or not the unions consider for themselves that there are other materials that are referred to which have not been provided or annexed or which they consider or have doubt about whether or not they're extracts or complete documents so that we can confirm that.  We're trying to do this in a collegiate way, if I can put it in that fashion, and we don't want there to be outstanding issues or any doubts about the way in which we have gone about answering the request.

PN32        

THE DEPUTY PRESIDENT:  So if I'm just to para-phrase what I think I heard you say is that you think you provided everything that's relied on by Mr Gunzburg in producing his report, and you pose two questions where you seek a response from the unions in respect of two questions:  firstly, whether they would seek to be provided with spreadsheets that Mr Gunzburg may have developed himself based on the material that he relied upon for the purposes of producing his report.

PN33        

MR SEBBENS:  Yes.

PN34        

THE DEPUTY PRESIDENT:  Secondly, whether the unions could indicate if there was any other material that they consider came within the bounds of what was requested to be produced.

PN35        

MR SEBBENS:  Correct.

PN36        

THE DEPUTY PRESIDENT:  So that you could consider that just on the basis that you may have overlooked it or not aware of it or whatever.

PN37        

MR SEBBENS:  That's correct, your Honour.

PN38        

THE DEPUTY PRESIDENT:  Mr Fagir, does that partially answer your question or ‑ ‑ ‑

PN39        

MR FAGIR:  Could I just clarify one thing?  Mr Sebbens said that the materials which Mr Gunzburg has referred to has been annexed to his statement, but was that a slip of the tongue or is there some distinction between material he's referred to and material he's relied upon?

PN40        

THE DEPUTY PRESIDENT:  Mr Sebbens?

PN41        

MR SEBBENS:  Material that he has expressly referred and annexed.

PN42        

MR FAGIR:  Yes.  But we don't want material he's referred to; we want the material that he's relied upon.

PN43        

MR SEBBENS:  I just answered your question.

PN44        

MR FAGIR:  It's not a mystery about this.  This is the conventional call for documents which an expert who produced a report in the proper way would have produced in any case.  So we don't want to know what he's referred to; we want to know what he's relied upon, that is, what are the documents that formed the foundation or the opinions expressed in the statements?  So can we just have those?

PN45        

MR SEBBENS:  I thought I answered the question, but I'll rephrase it.  I note that Mr Gunzburg isn't called as an expert.  Mr Gunzburg has set out in his statement the materials that he relied upon and he has made express reference to the materials that he relied upon, and he has annexed those materials with the modifier of the things that I've said in respect of those of which were extracts, full copies have now been provided.  One document that was incapable of being attached has now been provided in electronic form.

PN46        

THE DEPUTY PRESIDENT:  So in essence what you're saying, Mr Sebbens, is that from your perspective everything that was relied upon by Mr Gunzburg in preparing his report has been provided either in documentary form or electronic form?

PN47        

MR SEBBENS:  Correct.

PN48        

THE DEPUTY PRESIDENT:  Mr Fagir, does that satisfy you on that ground?

PN49        

MR FAGIR:  Except that it's a bit difficult to reconcile with the proposition that there are some other intermediate documents which have been generated which have been used and produced in some graph that appears in the statement which haven't been provided to us.

PN50        

THE DEPUTY PRESIDENT:  I think that was one of the questions that, without having seen the email, that I understood that Mr Sebbens had sought an indication from the unions as to whether they also wished to be provided with those, I think the term that was used was, spreadsheets that were prepared by Mr Gunzburg in preparing his report.

PN51        

MR GUNZBURG:  Your Honour, it's Mr Gunzburg here.  I might be able to assist on this particular matter.

PN52        

THE DEPUTY PRESIDENT:  Certainly.

PN53        

MR GUNZBURG:  To create the graphs, they were created in Excel.  That's the ‑ ‑ ‑

PN54        

THE DEPUTY PRESIDENT:  Yes, software.

PN55        

MR GUNZBURG:  ‑ ‑ ‑way they were done.  To do that I needed to take some of the data out of the documents which have been provided in order to create the graph.  That's all that's been done.  Just a transfer of the data into a spreadsheet form so that it could then produce a graph.  There's no other different or additional documents.  Does that assist in any way?

PN56        

THE DEPUTY PRESIDENT:  Mr Fagir?

PN57        

MR FAGIR:  If there's a document that's been used to generate some part of the statement, whether it's a spreadsheet or some other thing, it falls within the call and it should be produced to us.  I'm not trying to be difficult about this, but at the end of the day we just want to be clear about what was relied upon in producing the statement because the evidence will be assessed on that basis and the cross-examination will proceed on that basis.

PN58        

THE DEPUTY PRESIDENT:  So just ‑ ‑ ‑

PN59        

MR FAGIR:  So can we just have any document which was relied upon to any extent in producing the statement.

PN60        

THE DEPUTY PRESIDENT:  So, Mr Sebbens ‑ ‑ ‑

PN61        

MR FAGIR:  It seems to me that it's self-evident that that would include any of these spreadsheets that have been described.

PN62        

THE DEPUTY PRESIDENT:  That's the point I was just going to make, Mr Sebbens.  I would take it that as a response to your question that ‑ ‑ ‑

PN63        

MR SEBBENS:  That is the response we sought and it's now been answered.

PN64        

THE DEPUTY PRESIDENT:  So the question that flows from that is do you have a sense of how quickly that material could be provided to the unions?

PN65        

MR SEBBENS:  I may need to rely upon Mr Gunzburg to give me an indication on that.

PN66        

THE DEPUTY PRESIDENT:  Yes.

PN67        

MR GUNZBURG:  Within a day or two.

PN68        

THE DEPUTY PRESIDENT:  If I was to suggest that it be provided by close of business tomorrow, do you think that's feasible, Mr Gunzburg?

PN69        

MR GUNZBURG:  I believe so.  They should be immediately available.  I haven't looked for them yet so I can't be absolutely sure.

PN70        

THE DEPUTY PRESIDENT:  Yes.  No.  Does that work from your perspective, Mr Fagir?

PN71        

MR FAGIR:  Yes.  Thank you, your Honour.

PN72        

THE DEPUTY PRESIDENT:  Now we come to the second strand which is in respect of the material relating to Dr Adam's report.

PN73        

MR FAGIR:  Yes.  If Dr Adam is uncontactable then there's not very much we can do, but I have to say it seems a bit strange that there's any mystery about this because Dr Adam was provided with the relevant Federal Court practice note that required Dr Adam to identify any materials which formed the basis for his opinion.  So in the ordinary course one would have expected, that's the first point.  The second point is that Dr Adam was briefed by Mr Sebbens, and in the ordinary course one would expect this material to be not at Mr Sebbens' fingertips, but certainly at Dr Adam's and usually produced together with the report.  But there's not much we can say.  If the fellow is uncontactable and the documents physically can't be accessed then there's not much we can do about that, but I'd just say it seems a bit strange that that would be the case given that Dr Adam was briefed in a way that suggested that his report was to be treated as a proper expert's report, if I can put it that way.

PN74        

THE DEPUTY PRESIDENT:  Bearing in mind I'll characterise them as what might be the logistical difficulties given that Dr Adam is overseas, I suppose the question I have is that particularly with a long weekend coming up in New South Wales and the ACT and similarly a public holiday in  Victoria, though I'm not sure that anyone is necessarily joining us from Victoria, or possibly Mr Gunzburg, sorry, the potential implications for the hearing given that the matter is set down, or listed for hearing to commence on Thursday and Friday of next week, you know, if there's a delay in clarifying with Dr Adam I just want to get a sense of what that means for next week basically.

PN75        

MR SEBBENS:  From my client's ‑ ‑ ‑

PN76        

MR GUNZBURG:  Mr Gunzburg here.  Can I just I'm pretty sure Dr Adam wasn't due to appear until the later date if that assists.  We have a third day in November, I think.

PN77        

THE DEPUTY PRESIDENT:  Yes, we do indeed.  Yes.

PN78        

MR SEBBENS:  That's right, your Honour.  The date in November, the 23rd was specifically ‑ ‑ ‑

PN79        

THE DEPUTY PRESIDENT:  To accommodate Mr ‑ ‑ ‑

PN80        

MR SEBBENS:  ‑ ‑ ‑for Dr Adam being available on that date.  It was well-known to the parties he was not available next week when the request for these revised dates was made.

PN81        

THE DEPUTY PRESIDENT:  Yes.

PN82        

MR SEBBENS:  We searched amongst ourselves and with the Tribunal for suitable dates.

PN83        

THE DEPUTY PRESIDENT:  Yes.

PN84        

MR SEBBENS:  But it was known at that time that Dr Adam was not available on the 5th and 6th.  That was well-known to both parties.

PN85        

THE DEPUTY PRESIDENT:  Yes.  So the inference I draw from that is that to the extent that the material is not available in advance, the situation is not clarified in advance of next Thursday and Friday in respect of Dr Adam is doesn't necessarily jeopardise next week's hearings?  Mr Fagir, do you agree with that?

PN86        

MR FAGIR:  I agree with that but I hasten to say that that doesn't mean that ‑ ‑ ‑

PN87        

THE DEPUTY PRESIDENT:  No, it's not open-ended ‑ ‑ ‑

PN88        

MR FAGIR:  ‑ ‑ ‑no substantial effort should be made to locate the documents relevant to what will happen next week as well as on the later date.  But we certainly don't suggest that the dates should be vacated on this account.

PN89        

THE DEPUTY PRESIDENT:  All right.  I think perhaps I'm being generous here, but the impression I got is that Mr Sebbens is doing everything he can in terms of trying to clarify the situation with Dr Adam and his office, and he is to some extent hostage to waiting on a response from Dr Adam at this stage.  So, Mr Sebbens, if you can continue to do whatever you can possibly do to try and get that situation clarified as soon as possible I think that would be of assistance.

PN90        

MR SEBBENS:  Yes.  You're correct in what you're saying, your Honour, about the efforts that we've made, and we will continue to make, and we commit that we'll continue to do that.

PN91        

THE DEPUTY PRESIDENT:  So I think the next item I just wanted to talk to was in respect of item 6(a), and my notes from our last hearing indicate that CMIEG was to seek instructions regarding the provision of data equivalent to the New South Wales data for Queensland and Western Australia for the past 10 years.  Mr Sebbens, is there anything you can say on that?

PN92        

MR SEBBENS:  Yes, your Honour.  We've had some correspondence with APESMA in relation to getting some particularity around the narrowed call, if I can describe it in that way, in relation to 6(a), and to clarify whether or not a particular approach would be suitable and Mr Guy and I have exchanged some emails on that front.  Subsequent to that we have sought instructions from the members of the CMIEG in respect of whether or not it would be possible for them to produce from either their payroll or their HR information system/computer systems reports or information that would effectively meet the description of categories 5 and 6 of the order for production of 8 December 2016 which was issued by the Commission to Coal Mining Insurance Proprietary Limited.

PN93        

THE DEPUTY PRESIDENT:  Yes.

PN94        

MR SEBBENS:  But in respect of only Queensland and Western Australia for the period of 2007 to 2017.  We've obtained - in seeking those instructions, we've got responses from the majority of the members and each one of them has indicated that either it would not be possible for them to obtain reports or records either at all or if they could generate such reports that it would be requiring them to put significant recourses and efforts which would be oppressive and just not able to be achieved within the time we have.  Part of the reason for that, and it's been explained to us by the relevant representatives of the members of the CMIEG, is for a number of reasons; one is that a number of them simply just do not track or code that data; secondly, some of them in respect of their payroll or information systems have changed and have changed a number of times over the past 10 years; thirdly, a number of them were not the owners of some of the mines which they now own, and therefore they have only data which is limited since they took over ownership, and there would be some significant efforts to be able to try and obtain this information having regard to all of those factors, so the way in which Mr Guy and I have sort of settled, if you like, upon the relevant call and on those instructions it's just simply not able to be achieved.

PN95        

THE DEPUTY PRESIDENT:  Thank you.  Mr Fagir, anything you wish to say?

PN96        

MR FAGIR:  Could I again ask through your Honour is the upshot of what's just been put that the CMIEG members don't know who, when, and how much accident pay has been paid over the relevant period?  I say this, not to be difficult and not to be glib, but because it's a matter which, at least in my client's submission, which will have some significance for the matter itself, that is, if parties are coming along to ask for a variation to reduce an obligation which they can't measure that's a matter, in my submission, that will have some significance, and that's why I asked this question.  I'm not trying to cross-examine Mr Sebbens but I just want to be clear about the effect of what's just been put.

PN97        

THE DEPUTY PRESIDENT:  Mr Sebbens?

PN98        

MR SEBBENS:  No, that's not what's being said, your Honour, and that was not the call or the request.

PN99        

THE DEPUTY PRESIDENT:  So you might just clarify for Mr Fagir what is in fact being put.

PN100      

MR SEBBENS:  The particular call for documents that was subject of the email of the 18th between Mr Guy and I was the one which I alluded to, that is, we sought instructions from the CMIEG members in respect of whether or not they can produce records or reports which effectively meet the description of categories 5 and 6 of the order for production dated 8 December 2016 which was issued to Coal Miners Insurance Proprietary Limited but in respect only of Queensland and Western Australia for the period of 2007 to 2017.  The answer to that question is no, they cannot within the time that they had for the reasons which I've answered or set out rather.

PN101      

THE DEPUTY PRESIDENT:  Yes.

PN102      

MR SEBBENS:  But the answer to Mr Fagir's question is no.

PN103      

THE DEPUTY PRESIDENT:  Mr Fagir?

PN104      

MR FAGIR:  I have to say I'm at sixes and sevens now.  I'm told there's some other formulation I am not privy to, so can I try to make this suggestion as a practical suggestion; so we're not arguing about what's being said this afternoon, I wonder if Mr Sebbens might put that position in some sort of note that we can rely upon, and that might give rise to some discussion next week, but I have to say I'm struggling to understand all of this.  It's clear on the face of the order, in my submission, and it's clear based on what I said on the last occasion of what we want to know, is who you paid accident pay, when, and how much of it.  If this is some problem with the clarity of our drafting, and those records do exist, but we haven't called for them, then we'll have another go.

PN105      

THE DEPUTY PRESIDENT:  Can I perhaps ask a question?  Mr Sebbens, you referred to the order to produce that was issued by Watson VP in December of last year.  Was it items 5, 6 and 7, was it, that you referred to specifically?

PN106      

MR SEBBENS:  No, five and 6.

PN107      

THE DEPUTY PRESIDENT:  Five and 6.  I've not looked at that particular material at this stage.  Do you have a sense of what material may have been provided by CMI and to what extent it may cover off the issues that were covered off in item 6(a) of the most recent draft order to produce?

PN108      

MR SEBBENS:  I don't have that response in front of me either, your Honour.

PN109      

THE DEPUTY PRESIDENT:  Yes.

PN110      

MR SEBBENS:  But those categories, if I recall correctly, but I need to check, I believe were a feature of Mr Gunzburg's statement, and the responses to 5 and 6, again, if I recall correctly, were annexed to Mr Gunzburg's statement.  So in respect of New South Wales, as we dealt with on the last occasion, the short answer is yes, the call for the originally drafted documents in 6(a) would be dealt with in part by that data produced by CMI in respect of New South Wales.  Yes, and we will tender in evidence Mr Gunzburg's statement then that evidence well, it would form part of the evidence rather.

PN111      

THE DEPUTY PRESIDENT:  But the issue here is it doesn't go to Queensland and Western Australia.

PN112      

MR SEBBENS:  Correct.

PN113      

THE DEPUTY PRESIDENT:  All right.

PN114      

MR SEBBENS:  I should say we considered these matters ourselves about what was the ability to get this data, so to the extent it might be suggested that we haven't turned our minds to this nor made efforts to seek the data that's just simply not correct.  The reason why we sought an order to produce against Coal Miners Insurance is because it is the repository for that information in respect of New South Wales and we considered that would be representative of the population of people who might enjoy accident pay, the benefit of accident pay, that is, notwithstanding that doesn't include Queensland and Western Australia, and that there would be substantial difficulties in getting this from the members of the Coal Mining Industry Employer Group and that is indeed the case.  That's why we sought the information from Coal Miners Insurance.

PN115      

THE DEPUTY PRESIDENT:  Okay.

PN116      

MR GUNZBURG:  Your Honour, perhaps I could say something.  It's Mr Gunzburg here.  The substantial difficulty is trying to get any consistent set of data over a period like 10 years that was the same data for each of the companies because the question we're asking at the moment is one that we're interested right now but it's not a particular piece of information like an annual leave accrual which companies are usually called upon to keep a record over a period of time.  So it's not able to go and find that data without, I suppose, going back to 10 years' worth of payroll records if they had access to them, and many of them don't, and, you know, adding it up by hand, which would be a substantial task, and would probably have lots of errors in it, I'd have to say, just because of the nature of keeping that sort of data over that period of time.

PN117      

THE DEPUTY PRESIDENT:  Thanks, Mr Gunzburg.  Mr Sebbens, Mr Fagir floated a proposition if you might sort of just confirm in writing the circumstances in respect of item 6(a).  Is that something which you're willing to do?

PN118      

MR SEBBENS:  We have already put it in writing in our email that we've sent to APESMA this afternoon.

PN119      

THE DEPUTY PRESIDENT:  Mr Fagir, have you seen that email?

PN120      

MR FAGIR:  I have, and reject that completely.  It leaves the issue utterly unclear.  Can you just tell us, do you know how much accident pay you paid your workers or not?  If the answer is yes, produce the documents.  If the answer is no, then tell us you don't know.  The email makes nothing clear.  I've suggested perhaps that there might be some sort of written note so that we don't have an argument about what's said today, but really if these points are going to be made they should be made on affidavit; not Mr Gunzburg just sitting here, without intending any offence to him, giving us his understanding about the way things work out there, because something turns on this, because we're going to come along and say these documents don't exist.  These people don't even know what this variation is worth to them, and that's a matter that we will say has some importance, so really ‑ ‑ ‑

PN121      

THE DEPUTY PRESIDENT:  Mr Fagir, I should indicate one of the reasons for, in essence, recording this afternoon's hearing is to enable a transcript to be produced of this afternoon, so that will be something that might go some way to addressing your concern, if I can describe it that way.

PN122      

MR FAGIR:  It does go some way to addressing the concern, your Honour, but, in my submission, the Commission should require the CMIEG members to either say there are documents falling within the call or there are no documents.  If there are documents falling within the call, but production is said to be oppressive, then that should be explained in an affidavit.

PN123      

THE DEPUTY PRESIDENT:  Can I just clarify what I heard Mr Sebbens say and, in essence, CMIEG has approached members asking them in terms of what data they may be able to provide in respect of accident pay in Queensland and Western Australia over the past 10 years, and the responses that have been provided is that either members have indicated that it's not possible to provide any material at all, or alternatively to the extent that the material can be provided it would require significant resources to produce, which would be considered as oppressive by those members, and that the material couldn't be provided within the timeframe where it requested.  The reasons for that were in essence threefold; the first is that many employers don't actually track this; secondly, that their HR systems, for want of a better description, have changed over that period and, in some cases, may have changed on a number occasions; and finally, that some of the members were not owners of the mines that they currently own, and hence may only have access to data for some period of time.  So to cut it short, either the material can't be produced, and to the extent that it can be produced, it's a big ask, which couldn't be achieved within the timeframe.  Is that a fair characterisation of what you said earlier, Mr Sebbens?

PN124      

MR SEBBENS:  Yes, it is, your Honour.

PN125      

THE DEPUTY PRESIDENT:  Mr Fagir, does that give you a clear understanding of the circumstances?

PN126      

MR FAGIR:  It does, but it really prompts me to renew my submission that if that is said to be the case that should be done on affidavit because that contention is on its face implausible, in my respectful submission.

PN127      

THE DEPUTY PRESIDENT:  On affidavit, from whom?

PN128      

MR FAGIR:  From the responsible officer of each member of CMIEG.

PN129      

MR SEBBENS:  Can I just reply to that, your Honour?

PN130      

THE DEPUTY PRESIDENT:  Yes, if you can.

PN131      

MR SEBBENS:  What Mr Fagir is suggesting relates to the original drafting of item 6(a) in the schedule.  What's being talked about today is something that has been subjective communication between Mr Guy and myself which is differently drafted, and that is what instructions were sought on from the CMIEG members and to which a response has now been given.  If Mr Fagir pressing his original drafting then that's a different matter, and we would need to seek instructions again in respect of then going into affidavit evidence on each of these from each of the responsible members, that is, responsible officers of each of the CMIEG members.  One might anticipate that this matter might still be up in the air, if I can put it that way, by the time that we get to the hearing, if that's the course that's to be adopted.  Lastly, we ‑ ‑ ‑

PN132      

THE DEPUTY PRESIDENT:  Why would the response be any different if you asked in respect of item 6(a) as it is in the draft order that was attached to the application for the order to produce?

PN133      

MR SEBBENS:  What was sought and what was produced from CMI was effectively in a report style format, that is, the number of instances, the duration of accident pay and the like ‑ ‑ ‑

PN134      

THE DEPUTY PRESIDENT:  Yes.

PN135      

MR SEBBENS:  ‑ ‑ ‑in each year over the relevant periods.  So that is quite a different prospect than how item 6(a) was originally drafted.

PN136      

THE DEPUTY PRESIDENT:  But, in terms of what I might characterise as aggregate data if the response that you've been provided from members is that it's either not possible or could only be done, or it would require significant resources and would be oppressive, couldn't be achieved within the timeframe and for the reasons were outlined, why would you anticipate any different response in respect of 6(a) frankly?  I mean, if they can't do it an aggregate sort of sense on what basis particularly where I think one of the reasons was that systems have changed or people may not have been owners of the mines for the duration of the 10 year period, I mean, in those circumstances it's kind of hard to envisage that they'd be able to turn up any document.

PN137      

MR SEBBENS:  No, your Honour, what I anticipate that I would need instructions on, if the call for documents was a snapshot of what is occurring presently, that is, to give information in respect of the number of people who are receiving accident pay now, and how long they might have been receiving it as at now, that may be able to be produced, but that was not the call that was communicated between Mr Guy and I and which we sought instructions from the CMIEG members about.

PN138      

THE DEPUTY PRESIDENT:  It also wasn't what's in the draft order either.

PN139      

MR SEBBENS:  Indeed.  That's correct.

PN140      

THE DEPUTY PRESIDENT:  Which was, in essence, any document which records or refers to a payment of accident pay to an employee, and didn't specify any particular timeframe.

PN141      

MR SEBBENS:  No.

PN142      

THE DEPUTY PRESIDENT:  So where it limited to perhaps a shorter timeframe is your sense that there may be able to be something that's produced?

PN143      

MR SEBBENS:  It may be.

PN144      

THE DEPUTY PRESIDENT:  There's two questions; one is obviously the timeframe that might be attached to it to the extent that it was capable of being produced; but secondly, how that might be dealt with in the context of should that be after the initial hearing.  I mean, how we deal with that from a practical perspective in the context of hearings.

PN145      

MR SEBBENS:  Then further to that, your Honour, what's the utility of the data that I've described that might be possible to be obtained.  If APESMA or the union parties think that the call, as I've just put it, is something still of relevance and that they might consider then we can perhaps seek further instructions.

PN146      

THE DEPUTY PRESIDENT:  I think if what I'm hearing Mr Fagir say, and, Mr Fagir, correct me if I'm misrepresenting, is that the unions basically want to know whether the data in respect of Queensland and WA can be produced, and if it can't be produced, a simple, well, evidence to that effect as to why it can't be produced.  Is that a fair characterisation of what you're saying, Mr Fagir?

PN147      

MR FAGIR:  Yes.  Save that we haven't accepted, at this stage, that the data for New South Wales shouldn't be produced, but otherwise I agree with the position as your Honour has just put it.

PN148      

THE DEPUTY PRESIDENT:  Let me ask this question, Mr Fagir; in terms of Mr Sebbens, CMIEG approaching members and, in essence, getting clarity as to what can be produced, if anything, is that something that you would wish to see Mr Sebbens pursue?

PN149      

MR FAGIR:  Yes.  Yes.

PN150      

THE DEPUTY PRESIDENT:  To the extent that all those responses are either somehow put before the Commission in an evidentiary sense would be the extension of either the information is put there or to the extent that information can't be provided that that's also put before the Commission?

PN151      

MR FAGIR:  That would be the appropriate course, in my submission.

PN152      

THE DEPUTY PRESIDENT:  All right.  Mr Sebbens, are you willing, in essence, to pursue that with CMIEG members?

PN153      

MR SEBBENS:  I am, your Honour, but can I say this; we're in no clearer position than I was when we started in respect of the drafting of item 6(a).  I've put a proposition that we seek instructions in respect of whether or not information about the current state of affairs, if I can describe it in that way, in respect of each member, that is, how many people at the moment, at this point in time when I make the request, are receiving accident pay, what are they receiving, and how long have they been receiving it for, that is, where are they at in the 78 week period, that information I can ask the question about, but if I'm to go back and ask the question as effectively being where we started, "Can you just produce any and everything for an unlimited period of time?", well, that's just a completely different request, and I anticipate we're going to get the same response.

PN154      

THE DEPUTY PRESIDENT:  The question I think I framed it in terms of what can they produce, and ‑ ‑ ‑

PN155      

MR SEBBENS:  With respect, your Honour, that's a very searching question I'm going to have to ask of 13 or 14 companies.

PN156      

THE DEPUTY PRESIDENT:  Let me put it this way, I mean, under the Act they're required to keep time and wages records for a period of six years, so one would imagine that there'd be some sort of record in terms of that; at least that duration putting aside the issue of ownership.

PN157      

MR GUNZBURG:  Your Honour, it's Mr Gunzburg here.  I was just I'll probably be the person who has to try and collect this information.  If we ask all the companies that sort of broad, "What can you provide us?" I'm likely to get seven, 13, however many it is, different responses which won't be the same, and I am not sure how that assists us.

PN158      

THE DEPUTY PRESIDENT:  There might be two questions, and it's one of the questions that I asked; one is the question that you framed, Mr Sebbens, in the sense of "As at today how many people are in receipt of accident pay?", and, you know, "How long have they been in receipt of accident pay?" and so on and so forth.

PN159      

MR SEBBENS:  Yes.

PN160      

THE DEPUTY PRESIDENT:  Beyond that the question is, as I framed it, is what can they provide in respect of access to accident pay and for what period can it be provided and if there are reasons why it can't be provided, for instance, the, you know, sort of the suggestion that it might require an unreasonable diversion of resources or alternatively it would be oppressive, for that to be stated and in essence put before the Commission so that there could be some judgment as to the merits or otherwise of the rationale for that.

PN161      

MR SEBBENS:  I hear what you say, your Honour.

PN162      

THE DEPUTY PRESIDENT:  I mean, look, to be frank, coming from the outside I accept where there might've been a change of ownership, but at a very superficial level it's difficult to envisage that employers would not have access to these sorts of records for a period that goes beyond, you know, the immediate.

PN163      

MR SEBBENS:  That may be accepted, your Honour, but the question that arises is with particularity what are the records that are being asked to be produced in order that we can then ask the specific questions that your Honour's then put to us?

PN164      

THE DEPUTY PRESIDENT:  I'll let Mr Fagir sort of give an indication as to what but I'd imagine it might be aggregate data around the number of employees, duration of receipt of accident pay, those sorts of things, and that's an assumption on my part in terms of what was sought in respect of the equivalent data relating to New South Wales from CMI.  If I look at items 5 and 6 of the order to produce that was issued by Watson VP:

PN165      

Data showing the number of claims for workers' compensation on the insurance policies in relation to which any payments for accident pay were made which were indemnified under policies held by CMI for the period '73 to 2016.

PN166      

Then secondly:

PN167      

In respect of claims for workers' compensation under insurance policies held with CMI in relation to which any payments for accident pay were made which were indemnified under policies held with CMI, data showing the period of time for which payments of accident pay were made in each year for the period '73 to 2016.

PN168      

MR SEBBENS:  Yes, your Honour.  That aggregate data, if that's to be what we seek instructions on then that gives some particularity around it.

PN169      

THE DEPUTY PRESIDENT:  Mr Fagir, have I incorrectly described what you might be looking for in respect of Queensland and WA at least?

PN170      

MR FAGIR:  The way we put it is that the documents that should be produced are the documents that appear in the order for production, and if, as your Honour has just pointed out, if someone is being paid an amount, there's required to be a record kept of it.  That's the call and that's the best information that we could get, and that will allow us to make an independent assessment of what's been happening; how much is being paid and so on, and we can convert that into some aggregate data.

PN171      

In the interests of approaching this in a practical way we'd indicated that if there is a report, something more similar to the CMI information, then we'd take that and that would probably address the issue, but what I want to avoid is a situation where Mr Sebbens comes back and says, "Yes, of course we'll produce pay slips and all the rest of it, but we don't have an existing document that contains this information in aggregate format therefore there's nothing to produce".  So it's producing some kind of a report might be a practical way forward, but at the end of the day if there is no such document, or if it can't be produced, or the CMIEG members are not inclined to produce it so be it, we would press for the production of the primary documents if I can put it that way.

PN172      

THE DEPUTY PRESIDENT:  Can I just perhaps pick that a little bit?  I'm just plucking you know, so you've got a CMIEG member, ABC Proprietary Limited and in terms of beyond the immediate they might say, "At the moment we have X number of employees who are in receipt of accident pay and they've been in receipt of it for periods of", let's say, it's five employees and they've been in receipt of accident pay for periods of five, 10, 15, 25, 30 weeks, and the amounts that they're being paid are X, Y, Z, A, B dollars per week.  In respect of looking beyond the immediate they say that, "We can produce the equivalent data for the previous two financial years", and again I'm just plucking that out, and what that shows is that in 2016/17 there were 20 employees who received accident pay.  The duration were for periods of whatever it might be, X of four weeks, five weeks, or whatever it might be, and the amounts of accident pay that were paid were whatever the amounts might be.  If that were to be provided, let's say they say that's for the past two financial years, you get it for that company.  Then you might have another member, DEF Proprietary Limited, "We can't provide anything and in the immediate sense we have no employees on accident pay" and so on and so forth.

PN173      

If the responses were aggregated in that way would that sort of meet what you're looking for?

PN174      

MR FAGIR:  Yes subject to a question about the time periods, because in fact in a way the most recent data is the least useful because you don't actually know how long someone is going to end up being on accident pay.

PN175      

THE DEPUTY PRESIDENT:  Sure.  Yes.

PN176      

MR FAGIR:  I cavil with the timeframe but in principle or conceptually that would be the kind of information that ultimately we're trying to get to.

PN177      

THE DEPUTY PRESIDENT:  In terms of the timeframe, the way that I framed the questions was the immediate, what's happening as at 27 September, and then what can be provided going backwards for earlier financial years, and that may vary across the companies, in the sense that company ABC may have only bought the mine two years ago and therefore its systems will only go back till 2015/2016 whereas for some others they may be able to go back to five years or whatever it might be, or they may not because that's when they changed their HR system and going beyond that is problematic for whatever so it might vary across the companies in the sense of that historical perspective.  Indeed some companies may say, "Look, we can't provide anything going backwards because to do so would be too much of a diversion of resources", so there's that range of possibilities, but that's how I envisage that timeframe aspect that you referred to being dealt with.

PN178      

MR FAGIR:  We would have to accept that different companies may have different circumstances and that may mean that there's a variation in the documents that are capable of being produced.  We'd accept that much.

PN179      

THE DEPUTY PRESIDENT:  Mr Sebbens, does that give you enough clarity to go to your members, or Mr Gunzburg, given that you might be the person doing the toing and froing?

PN180      

MR SEBBENS:  I think it advances us forward, your Honour, but I'll just get Mr Gunzburg's response.

PN181      

MR GUNZBURG:  It assists, your Honour, but I don't want to be more difficult than I have to be but I have to say that what's the date now, it's unlikely that all or even many of them will be able to give me a response by the 5th and the 6th, and in saying that I am not trying to be difficult, but if the view is that HR information systems are capable of answering off the cuff queries easily all I can say is that that's the view of people who have never had to try and grapple with them.

PN182      

THE DEPUTY PRESIDENT:  You never know unless you ask.

PN183      

MR GUNZBURG:  Exactly.  But I'm sure I'll get some responses, but we'll end up on the day not having any sort of complete picture, and I'm not sure if that's going to assist.

PN184      

THE DEPUTY PRESIDENT:  It might advance us from where we are at this point.

PN185      

MR GUNZBURG:  Certainly.  I just didn't want anyone to think that there'll be some sort of any sort of complete picture by the close of business on 4 October.

PN186      

THE DEPUTY PRESIDENT:  No.

PN187      

MR FAGIR:  Deputy President, could I just say something about all that?

PN188      

THE DEPUTY PRESIDENT:  You certainly can.

PN189      

MR FAGIR:  Could we just remind ourselves that we're talking about an order of the Commission here.  This isn't a matter of persuading someone, you know, when they can get around to it to produce these documents, but it's an order of the Commission and it needs to be complied with is my first point.  The second point, a fortiori, where we're talking about the applicants in this proceeding these are companies that come along and say take 26 weeks off the accident pay entitlements under the award, so if someone has to stay back or someone has to be diverted from what they happen to be doing too bad.  It really borders on the inappropriate for Mr Gunzburg or anyone to come along and say, "Well, I'll ask them but they might not get around to it".  This isn't a voluntary process.  The Commission and the other parties might try to take a practical approach that minimises the impact on people, but at the end of the day they're the applicants, and they need to produce the documents.  It doesn't matter whether someone is put out you've just got to do it.

PN190      

MR GUNZBURG:  Your Honour, perhaps I could respond and say that in that instance it might've been helpful if this request had been placed before us some time in the last six or nine months.

PN191      

MR FAGIR:  It's not up to you to decide when ‑ ‑ ‑

PN192      

THE DEPUTY PRESIDENT:  I don't think any of this is helpful.  Let's press on in terms of there'll be an order made and people will need to comply with an order.

PN193      

MR SEBBENS:  Your Honour, can I just clarify?  I'm not going to go back into what was just exchanged, can I just clarify if the instructions we're seeking are I know Mr Fagir has said he wants it across the board, but can I seek clarity, am I asking the question for New South Wales, Queensland and WA, or is it just Queensland and WA?

PN194      

THE DEPUTY PRESIDENT:  Mr Fagir?

PN195      

MR FAGIR:  Your Honour, we press for all of the documents but I don't propose to say any more than what I've already said.  We're in your hands.

PN196      

MR SEBBENS:  Your Honour, an order has not yet been made.  We're doing our level best to see if we can assist to provide whatever materials we can in the time.  Your Honour is able to obviously issue the order if you wish in the format that it's currently sought.

PN197      

THE DEPUTY PRESIDENT:  My understanding was, and certainly the notes from our previous conversation was that the material that was being sought was in respect of Queensland and WA, and my assumption was that that was premised on the basis that what was previously provided related to New South Wales, and that there was a void there in respect of Queensland and WA.  So, Mr Fagir, you'll need to tell me otherwise if that's not the case.

PN198      

MR FAGIR:  I have no doubt that your Honour's notes are better than mine, and if that's your Honour's note then so be it.  I can explain why we say the documents should be produced across the board, but I don't propose to cavil with your Honour's record or recollection of the last occasion.

PN199      

THE DEPUTY PRESIDENT:  Yes.  To answer your question, Mr Sebbens, it would be in respect of Queensland and WA.

PN200      

MR SEBBENS:  Thank you, your Honour.  Thank you.

PN201      

THE DEPUTY PRESIDENT:  Which brings us to go on?

PN202      

MR SEBBENS:  I was just going to say, your Honour, perhaps just indicate Western Australia, as far as I'm aware, has only got two mines.

PN203      

THE DEPUTY PRESIDENT:  Yes.

PN204      

MR SEBBENS:  Only one of those mines is operated by a CMIEG member, so that is likely a simple prospect to get an answer in respect of WA.  Queensland is a very different prospect, but we understand what your Honour's two questions are, and will ask that of the relevant CMIEG members with Queensland operations.

PN205      

THE DEPUTY PRESIDENT:  Thank you for that.  Moving on in respect of item 6(b) my notes indicate that CMIEG was to provide template contracts and associated policies regarding those employees working at mine sites who were both covered by the BCI Award or at X margins.  Has that occurred?

PN206      

MR SEBBENS:  We have sought the documents.  We've made a request of the members for those template contracts.  We've received responses from some of them at this point.  We haven't received responses from all, and once we have completed that process we will produce the templates.

PN207      

THE DEPUTY PRESIDENT:  So give me a sense of, have 60 per cent of members responded, or what's the proportion that you're still waiting on?

PN208      

MR SEBBENS:  I believe it's a third who have responded, but Mr Gunzburg will just correct that.

PN209      

MR GUNZBURG:  So far, your Honour, I received seven responses.

PN210      

THE DEPUTY PRESIDENT:  Out of?

PN211      

MR SEBBENS:  Sorry, your Honour, that's half then.

PN212      

THE DEPUTY PRESIDENT:  Okay.  So what's the expectation in terms of the other half, I mean, given that we've got hearings that start next week?

PN213      

MR SEBBENS:  We'll re-invigorate the request, your Honour, and get them as soon as we're able.  We hear what your Honour and Mr Fagir and Mr Gunzburg in their exchange have both said, but we will re-invigorate the request from those members.

PN214      

THE DEPUTY PRESIDENT:  From my perspective I think they should be provided by no later than close of business next Tuesday.

PN215      

MR SEBBENS:  Yes, your Honour.

PN216      

THE DEPUTY PRESIDENT:  To be fair, I mean, for the unions to have any time to digest it and sort of reflect that in their submissions that gives them basically 24 hours to have a look at the material in advance of any opening submissions they might want to make, so if you can make that and close of business Tuesday, no later than; ideally beforehand.

PN217      

MR SEBBENS:  We can perhaps provide a part answer as soon as we can now and we hear what you say about Tuesday.

PN218      

THE DEPUTY PRESIDENT:  I think if you can provide what you've got already as soon as possible I think that'd be helpful.  Mr Fagir, is there anything you wanted to say on that issue?

PN219      

MR FAGIR:  No, your Honour.

PN220      

THE DEPUTY PRESIDENT:  Thank you.  That brings us back to items 4(a), 4(c), 5(a) and 5(c).  Mr Sebbens, I've read your email of last Friday.

PN221      

MR SEBBENS:  Yes, your Honour.

PN222      

THE DEPUTY PRESIDENT:  Is there anything you want to add to it?

PN223      

MR SEBBENS:  Your Honour, again, we don't intend by what we've now put about the process, and we accept that that's a different process was envisaged and we effectively agreed to that at the last directions hearing, but upon reflection and having considered those really recent authorities that were not in my mind at the time we had the last directions hearing, we did not proceed with providing your Honour with a confidential packet or electronic packet, if it could be described that way, of the documents, primarily because we were concerned in doing so we may be inadvertently waiving privilege, what we've proposed as set out in our email is that your Honour would be hearing from the parties, and that maybe hearing by the parties both submitting perhaps short notes, and perhaps, on our part, a statement or an affidavit is that you would then rule on the objection prior to requiring, if you were to require, inspection of the documents.  We say that's consistent with his Honour Brereton J's analysis of the authorities in Hancock v Rinehart and I've set out the citation of that in my email.

PN224      

We also propose that course because of course we are dealing with an application for an order as well.  An order has not yet been made and particularly in that circumstance we similarly were concerned about, given the lack of compulsion, us producing the documents, even in a confidential way, to the Tribunal.

PN225      

THE DEPUTY PRESIDENT:  Can I just ask a question?  When I had a look at Mr Gunzburg's initial statement it states at paragraph 6:

PN226      

I've been engaged by the Coal Mining Industry Employer Group to provide advice and assistance.

PN227      

MR SEBBENS:  Yes.  Yes.

PN228      

THE DEPUTY PRESIDENT:  The question that that poses, in my mind, is on what basis is the legal professional privilege claimed?

PN229      

MR SEBBENS:  Mr Gunzburg is our instructor and our client, that is, we are engaged by Mr Gunzburg as a company, DGHR Proprietary Limited.  Mr Gunzburg himself is engaged by each one of the members of the Coal Mining Industry Employer Group and effectively acts as their agent, so in respect of Mr Gunzburg's statement he is our client and therefore our communication is with him, and we would say similarly the draft or drafts of his statement are subject to legal privilege.

PN230      

THE DEPUTY PRESIDENT:  Sorry, I'm not quite sure I understand the point on which legal professional privilege is relied.  I mean, if Mr Gunzburg has been engaged by the Coal Mining Industry Employer Group at one level it might be a registered organisation.  I'm not sure if that's the case or not.

PN231      

MR SEBBENS:  It's not, no.

PN232      

THE DEPUTY PRESIDENT:  But it strikes me as being an employer group rather than a legal firm.  In this case whether it's Ashursts or whoever it might be they engage Mr Gunzburg.

PN233      

MR SEBBENS:  Yes.  No, that's not quite right, your Honour.  Each of the 14 members of the group are represented by Mr Gunzburg.  He acts as their agent, and it is him who gives us instructions and who, strictly speaking, is the entity that has engaged Ashursts.

PN234      

THE DEPUTY PRESIDENT:  So it's DGHR that's engaged Ashursts?

PN235      

MR SEBBENS:  Yes.

PN236      

THE DEPUTY PRESIDENT:  So in terms of his draft statement or what's sought in the order to produce, I should say, how does the letter of instruction to Mr Gunzburg or letter of engagement invoke legal professional privilege?

PN237      

MR SEBBENS:  The call there operates from a false premise.  Mr Gunzburg is not an expert.  He's not called as an expert.  He has not been engaged by Ashursts.  He is our client and he's our instructor.

PN238      

THE DEPUTY PRESIDENT:  Sorry, what did you say?  He's engaged by Ashursts, did you say?

PN239      

MR SEBBENS:  He is not engaged by Ashursts, your Honour.

PN240      

THE DEPUTY PRESIDENT:  No.  All right.  So if he's engaged by the members of CMIEG how does that letter of instruction or letter of engagement come how is it captured by legal professional privilege?

PN241      

MR SEBBENS:  I may be reading it incorrectly but I took it that it was a letter of instruction or engagement in respect of the preparation of the statement, but if that's not correct then if I'm looking at that I'm looking at chapeau or ‑ ‑ ‑

PN242      

THE DEPUTY PRESIDENT:  I'll just read it:

PN243      

In respect of the statements of Mr Gunzburg dated 24 February 2017 to 18 August 2017 any correspondence between CMIEG or any member of the CMIEG or the solicitors for the CMIEG and Mr Gunzburg including without limitation any letter of instruction to Mr Gunzburg and any letter of engagement to Mr Gunzburg.

PN244      

MR SEBBENS:  Yes.

PN245      

THE DEPUTY PRESIDENT:  I can understand to the extent that Mr Gunzburg may have engaged Ashursts there may be documentation that comes within the purview of legal professional privilege but to the extent that there is correspondence between CMIEG or members of CMIEG which goes to either letters of instruction or letters of engagement, or more broadly, the question that, given the nature of the relationship that is characterised in Mr Gunzburg's first witness statement and how you've characterised it, how is it captured by legal professional privilege?

PN246      

MR SEBBENS:  In respect of the opening words, "In respect of the statements of Mr Gunzburg" it may be read that (a) is referring to a letter of instruction of Mr Gunzburg or letter of engagement about his preparation of that statement as though one might engage an expert to prepare a statement or report.  We're not correct in that construction.  There may be a different answer to your Honour's question, but the answer to your Honour's question, if we disregard the opening words, it's still possible that such letters of engagement of instruction could be subject of legal professional privilege at the time they were provided to Mr Gunzburg if he was engaged to act as an agent to then engage Ashursts to obtain legal advice for those entities.  One might see it's capable that such letters are covered by legal professional privilege.

PN247      

THE DEPUTY PRESIDENT:  How does it apply in respect of 5(a) and 5(b) which goes to Dr Adam?

PN248      

MR SEBBENS:  Dr Adam has already attached to his statement his letter of engagement.

PN249      

THE DEPUTY PRESIDENT:  Yes.

PN250      

MR SEBBENS:  So really beyond the one that's already been produced there is no further letter.

PN251      

THE DEPUTY PRESIDENT:  Yes.

PN252      

MR SEBBENS:  In respect of any draft of the letter or the report there is authority that goes to say that simply by filing a report and then the tendering of it in evidence does not waive privilege over the drafts of such reports if drafts were provided to the lawyers who are engaged in the proceedings to appear.

PN253      

THE DEPUTY PRESIDENT:  So who engaged Dr Adam?

PN254      

MR SEBBENS:  Ashursts engaged Dr Adam.

PN255      

THE DEPUTY PRESIDENT:  All right.  So that's slightly different from the situation in respect of Mr Gunzburg.

PN256      

MR SEBBENS:  Correct.

PN257      

THE DEPUTY PRESIDENT:  Yes.  In respect of the draft statement of Mr Gunzburg, to the extent that ‑ ‑ ‑

PN258      

MR SEBBENS:  Draft statements of Mr Gunzburg ‑ ‑ ‑

PN259      

THE DEPUTY PRESIDENT:  ‑ ‑ ‑it was provided to CMIEG or CMIEG members how would that be captured by privilege?

PN260      

MR SEBBENS:  I'm now ‑ ‑ ‑

PN261      

THE DEPUTY PRESIDENT:  I know you're it's kind of potentially getting into the territory of merits.  I accept that.

PN262      

MR SEBBENS:  I don't wish to give evidence from the virtual Bar table.

PN263      

THE DEPUTY PRESIDENT:  Yes, sure.

PN264      

MR SEBBENS:  In respect of the drafts of Mr Gunzburg's statement, and Mr Gunzburg will correct me, and it's with great caution that he answers this question effectively himself giving evidence, unsworn evidence from the Bar table, is that none of the drafts were provided by Mr Gunzburg to CMIEG members or, you know, anything provided by them to him in respect of any drafts.

PN265      

MR GUNZBURG:  That's correct.

PN266      

THE DEPUTY PRESIDENT:  Mr Fagir, is there anything you wish to say on these issues, and perhaps the way forward?

PN267      

MR FAGIR:  Firstly, could I just point out that the course ahead was agreed on the last occasion.  There is nothing in the authority that's been identified which required any departure from that course, and if there were any doubts about that we'd make it clear that we would not be contending that there had been a waiver of privilege by virtue of production of the documents consistent with the agreement.  So I just want to make clear that we don't accept that there's something in the authority that's required a different course.  Rather it seems to be, as happens from time to time, that Mr Sebbens has simply thought the better of it and decided to take a different course.  I'm not being critical but I just want to be clear

PN268      

about that.

PN269      

The second point is that it seems clear on any view of the matter that there are documents falling within the call which are not privileged.  They have not been produced.  They should be produced immediately.  To the extent that there is any claim of privilege which is pressed Mr Sebbens wants to produce a statement or an affidavit which would actually provide some basis for a finding by the Commission that documents are privileged he can do that.  He should have already done it.  We know the hearing is upon us.  If he wants to do that he can but it should happen immediately and then the argument can be had on a proper factual foundation rather than my clients, and to some extent, the Commission feeling around in the dark.  So if they say some documents are privileged, so be it.  The rest need to be produced, and there needs to be an affidavit identifying the basis for the claim of privilege.  That is the one proposition that emerges clearly from the Rinehart decision that Mr Sebbens has cited, that if there is severe claim for privilege a finding of that kind could only be made on the basis of sworn evidence, and if there is to be sworn evidence, let's have it.

PN270      

THE DEPUTY PRESIDENT:  Mr Sebbens?

PN271      

MR SEBBENS:  Your Honour, it may be that the sworn evidence is from me.  It may similarly be that the sworn evidence, or that there needs to similarly be sworn evidence from Mr Gunzburg and/or Dr Adam.  I hear what Mr Fagir says.  Again, we're assisting as much as we can but in respect of an application no order has been issued.  If there were to be an order issued then perhaps the course he's suggesting is the way in which it might be dealt with.

PN272      

THE DEPUTY PRESIDENT:  Yes.

PN273      

MR SEBBENS:  Alternatively we're open to that course being taken now to determine the merits of the application itself.

PN274      

THE DEPUTY PRESIDENT:  I for one might say that I was surprised when I read your email, Mr Sebbens, given the conversation that we had on the last occasion, and to the extent that it's underpinned by a concern that legal professional privilege somehow might be waived by the provision of the documents to the Commission I'm not sure whether, what I'll characterised as, an undertaking that was given by Mr Fagir, whether that addresses that concern, but to the extent that I'm asked to rule on that on the basis of privilege, on what's before me at the moment, it's a bit like asking me to have a stab in the dark frankly, because there isn't much there frankly, and sort of I think the way forward on this one is two things:  one is for you to provide whether it's evidentiary material or submissions as to why the material is covered by legal professional privilege, and together with a soft copy of the documentation as was originally contemplated when we were last together so that I could actually form some sort of view on that particular issue; and similarly to the extent that Mr Fagir wanted to provide any submissions in response, acknowledging the practical difficulty, given that he wouldn't have access to the material that the Commission would have, otherwise you're just asking me to stick my finger in the air and sort of see which way the wind is blowing, and there's no basis on which I can make a decision other than perhaps what's referred to in the witness statement of Mr Gunzburg which I've already his first witness statement which I've already taken you to.

PN275      

MR SEBBENS:  Yes, your Honour.  In respect of the production of the documents to the Tribunal that is the point that I have some reluctance about given the authorities.  It seems, based upon Brereton J's judgment that he accepts in the end that the court can direct documents to be so produced for inspection, but he expresses some doubt about what the position is in the absence of Uniform Civil Procedure Rule 1.9.  I accept that it may be possible under section 590 in the Fair Work Act that you require or direct that the documents be produced, but perhaps I can beg your indulgence, your Honour, if you've formed a view about that?

PN276      

THE DEPUTY PRESIDENT:  I mean, I think 590 is the basis on which I could ask that they be provided, but you're asking me to make a determination on legal professional privilege in the absence of anything that I can actually have any regard to frankly.

PN277      

MR SEBBENS:  I hear what your Honour has just said.  I didn't anticipate that that's the course that would be taken or that your Honour would rule now.  My proposal was that a statement be filed or an affidavit be filed and whether that's by me and/or others, but that that evidence be put on about what the basis of the privilege is, and that the Commission would then hear from the parties about the principles and whether or not, as they apply to what's set out in the statement, the documents would then be subject to privilege or not.  It's at that point based on Brereton J's judgment that you may then call for the documents to be inspected to assist you in determining the matter, but if that, as I've just laid out, is what I had envisaged; not that you would rule now, your Honour.

PN278      

THE DEPUTY PRESIDENT:  I mean, again we've got hearings starting next Thursday and Friday, a long weekend this weekend.  When did you envisage all this occurring?

PN279      

MR SEBBENS:  I envisage that the evidence would be put on, your Honour, in the next day or so.

PN280      

THE DEPUTY PRESIDENT:  Mr Fagir, anything you want to say?

PN281      

MR FAGIR:  No.  Only that the question that then arises is when the claim would actually be determined.  That might depend on the evidence that's produced, but it might turn out that the issue is in narrow compass or it might turn out to be more difficult.

PN282      

THE DEPUTY PRESIDENT:  Yes.

PN283      

MR FAGIR:  It might be I don't, from my own part, have a firm view about this.  But the question of whether the claim for privilege is determined in advance of the hearing or at the hearing could abide the production of the evidence.  Once we have that it'll be clearer whether it's an argument that can be had shortly over the phone or whether it needs to be something larger.

PN284      

THE DEPUTY PRESIDENT:  All right.  Mr Sebbens, I'm going to give you until close of business tomorrow to put on whether it's a combination of submission and/or evidentiary material around the issue of privilege.  Mr Fagir, to the extent that you wish to express any views in writing, I give you to close of business on Friday, and then I can review that over the weekend and see whether it's dealt with in advance of the hearings next week or alternatively needs to be dealt with at the commencement of the hearings next week.

PN285      

MR FAGIR:  As the Commission pleases.

PN286      

THE DEPUTY PRESIDENT:  Comfortable with that, Mr Sebbens?

PN287      

MR SEBBENS:  Yes.  No, I heard what you said, your Honour.

PN288      

THE DEPUTY PRESIDENT:  All right.

PN289      

MR SEBBENS:  Yes.

PN290      

THE DEPUTY PRESIDENT:  I'm just going to take us back to item 6(a).  Mr Sebbens, do you require the Commission to issue an order around that one?

PN291      

MR SEBBENS:  No, I don't require you to issue an order, your Honour.  As it's the union's application they may require it, but it may assist me if the union parties can send just a brief email to me of perhaps their understanding of what it is that we're going to be seeking instructions on, but I don't based on what you've said, your Honour.  That may assist if the other side does send an email.

PN292      

THE DEPUTY PRESIDENT:  I'm actually going to try and put a timeframe around the material.  I think in respect of the first question which is what is the situation now in terms of data as to how many employees might be in receipt of accident pay and the level of payments and also the duration, at this stage, I think that should be able to be provided by no later than close of business on 4 October.

PN293      

In respect of the second strand which is the, what I'll characterise as, the historical data, what can be provided by 4 October should be provided.  What should be provided by 4 October is an indication as to what material can be provided, and to the extent that whatever can be provided by that date should be provided and to the extent that not all of the material is provided by that date, an indication as to when it can be provided, so that there's clarity around that for everybody.

PN294      

I don't want this as an open-ended a festering sore, for want of a better description.  All right?

PN295      

MR SEBBENS:  Yes, your Honour.

PN296      

THE DEPUTY PRESIDENT:  All right.  Thank you, everyone.  Is there anything else people wanted to raise?  I think that probably covers off all of the issues.

PN297      

MR FAGIR:  Not from our end, your Honour.

PN298      

THE DEPUTY PRESIDENT:  Mr Sebbens, anything?

PN299      

MR SEBBENS:  Nor for us, your Honour.

PN300      

THE DEPUTY PRESIDENT:  All right.

PN301      

MR SEBBENS:  No, your Honour.

PN302      

THE DEPUTY PRESIDENT:  Thank you very much, everyone, for your time this afternoon.  I'll look forward to getting the material and we either talk in advance of the hearing next week, or I'll see you next Thursday/Friday.

PN303      

MR FAGIR:  Thank you, your Honour.

PN304      

THE DEPUTY PRESIDENT:  Cheers, everyone.  Bye.

ADJOURNED UNTIL THURSDAY, 05 OCTOBER 2017 [4.30 PM]