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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards

Common issue - Transitional provisions - Accident Pay




Black Coal Mining Industry Award 2010













THE DEPUTY PRESIDENT:  Good morning everybody, can you hear me clearly?


MR FAGIR:  Yes, your Honour




THE DEPUTY PRESIDENT:  Thank you for making yourselves available this early in the morning.  I should indicate first up that this morning's brief hearing is being recorded, so I might just ask you to state your appearances for the purposes of the record.  Perhaps, Mr Fagir, if we start with you.


MR O FAGIR:  If it please the Commission, I appear for the CFMEU, APESMA and the AMWU.


THE DEPUTY PRESIDENT:  Welcome, Mr Fagir.  Mr Sebbens?


MR T SEBBENS:  Thank you, your Honour, my name is Sebbens, initial T, I seek leave to appear for the group known as the Coal Mining Industry Employer Group.


THE DEPUTY PRESIDENT:  I think we will deal with the issue of permission at the substantive hearing, but let's proceed on the basis that you will participate in this morning's hearing, Mr Sebbens, so we will go on that basis.


Mr Fagir, is there anything you wish to say in respect of the application for the order to produce which is the subject of this morning's hearing?


MR FAGIR:  No.  I should say that there has been a conversation between Mr Sebbens and the solicitor instructing me and we understand that there is an objection to at least some of the categories of production, but perhaps I should leave it to Mr Sebbens to articulate the objection and then I can deal with it, if it is convenient to the Commission.


THE DEPUTY PRESIDENT:  Yes, that's fine.  Over to you then, in those circumstances, Mr Sebbens.


MR SEBBENS:  Thank you, your Honour.  We have had a look at the application that has been filed by APESMA and the schedule of documents that are sought to be obtained pursuant to an order.  If I perhaps go through each of those items in the schedule and deal with them and the objections?




MR SEBBENS:  In respect of the first, and what I will say about the second will be quite similar, the first seeks documents concerning a statement prepared by Mr Gunzburg, or statements, two of them, on 24 February and then 18 August.  The items that are set out in (a) and (c) would be subject to legal professional privilege in accordance with the common law and so the common law would apply in relation to the question of privilege in respect of the order, and the Commission has confirmed that on a number of occasions.


Having regard to the principles that the Commission has relied upon in considering claims of privilege, primarily the decision of Lindgren J in ASIC v Southcorp Limited [2003] 46 ACSR 438, his Honour sets out a number of principles, primarily at paragraph 21 of that decision, but communications with Mr Gunzburg, noting that he is not an expert but just a lay witness, but, in any event, the principles would seem to similarly apply, as well as the drafts which are set out in item (c) would be subject to legal professional privilege.


The items in (b) are in a different category.  Of course, the materials that he relies upon to prepare his statement, and which he expressly refers to particularly in his statement, would be ones that would be capable of being sought and would not be the subject of privilege.


Having said that, Mr Gunzburg does set out in his statement the things that he relies upon and, indeed, attaches each document which he refers to and relies upon as an annexure to both statements or, in the second statement at least, refers back to his first statement and the relevant annexure there relied upon, so there is little, if anything, to be provided other than providing all those documents over again, and so there is a question, perhaps, about the utility of all of that.


In respect of item 2, Dr Adam, who is called as an expert and, clearly, the principles in ASIC v Southcorp would then squarely apply, again, what I have said in respect of (a) and (c) in respect of the statements of Mr Gunzburg would apply, and that is that they would be covered by privilege, but, in any event, the letter of instructions from our firm to Dr Adam, but again noting that it is attached to his report in any event, and then the material relied upon by Dr Adam, which he does set out the material he relies upon but does not attach that material, it might be noted that the material that Mr Gunzburg attaches to his statement and the material relied upon by Dr Adam is effectively the same bundle of materials, but to the extent there might be any doubt about that or there is a need to see the actual brief he was given, we have no objection to providing that in respect of item 2(b) for Dr Adam.


In respect of item 3, 3(a) is just so broad to be onerous and oppressive to the CMIEG.  It refers to "any document which records or refers to a payment of accident pay to an employee" and an employee includes any employee of any of the members of the Coal Mining Industry Employer Group.  There are approximately 13 companies, being the largest mining companies in Australia and, in fact, potentially in the world, and the call for documents is not limited to which particular employees and to any point in time, nor does it express with any particularity which particular records are sought to be obtained.


Perhaps if we limit the call to current employees within Australia, we are still looking at somewhere between 30 and 40,000 employees and every single record that refers to a payment of accident pay for each and every one of those persons, and that could be many tens or hundreds of thousands of documents.  That just, clearly, cannot be something that is subject of an appropriate order.  It is both oppressive but also places at risk the hearing dates which are set down for 5 and 6 October and the Commission ought to take that particular factor into account in considering whether to issue an order in those particular terms.


In respect of (b), similarly, it refers to any contract of an employee of the CMIEG.  Again, there could be somewhere between 30 and 40,000 employees subject to such a call and, again, the necessity to go through each one of those documents and find out whether or not they refer to accident pay or not and then, potentially, appropriately redacting those documents, again that is just so onerous as to be oppressive and ought not form part of any order that the Commission would make.


If there were to be an order in the form of 3, and we don't object to an order of this particular nature, we would see no problem in there being an order that provides for template employment contracts for relevant employees who are covered by the Black Coal Mining Industry Award who are employed by CMIEG members to be provided to the extent that those contracts, template contracts that is, refer to accident pay and any policies of any of the company members of the CMIEG that expressly refer to accident pay.  We can't see a problem with an order in that form and we think that would address the concerns in relation to the matter, or the order rather, being onerous.


Those were the matters that I wanted to just deal with at the outset, your Honour, and I am happy to take any questions you have in relation to those submissions.


THE DEPUTY PRESIDENT:  Just a point of clarification, just in going to the issue of legal professional privilege, in respect of items 4(a) and (c) and 5(a) and (c), in both cases, it was your firm that instructed or engaged Mr Gunzburg and Dr Adam respectively?


MR SEBBENS:  That's right.  Perhaps if I can clarify, in respect of Mr Gunzburg, Mr Gunzburg is, if you like, the convenor of the Coal Mining Industry Employer Group and he is sort of the agent, if you like, for the members of the group and facilitates the receipt of instructions from them, so, strictly speaking, he is a client of our firm and also our instructor.




MR SEBBENS:  So it is not a case of him being an expert.




MR SEBBENS:  He is a lay witness, but he is also the instructor and any communications with him, accordingly, clearly come within legal professional privilege.


THE DEPUTY PRESIDENT:  All right.  Mr Fagir?


MR FAGIR:  Could I deal with the question of privilege first?




MR FAGIR:  I personally point out that the appropriate course is that the documents be produced and, to the extent there is a claim of privilege in respect of some or all of them, that is a matter which comes after production and before access.


Secondly, there could not be any real argument that the whole of the documents within the categories are privileged.  For example, communications between Mr Gunzburg and the CMIEG, as opposed to between Mr Gunzburg and the solicitors for the CMIEG, couldn't, on the face of it, attract privilege.


Thirdly, Mr Gunzburg's statement has been served and it appears, subject to any contrary indication that Mr Sebbens might give now, the statement is intended to be relied upon and, in those circumstances, to the extent that there was some privilege which applied previously, consistently with ASIC v Southcorp and the line of cases which apply it, there has been a waiver of that privilege.


There might be some documents at the margin that there would be an argument about, but things like grass statements, for example, or Mr Gunzburg's own working notes, could not be the subject of privilege in circumstances where the statement has been served and is intended to be relied upon.


The same goes for the documents called upon in respect of Dr Adam, though, to the extent that some subset of the documents sought in 1 and 2 might have been privileged at some point, they are no longer privileged and, unless we are missing something fairly fundamental, that is the effect of the authorities in this area.


In terms of the oppression question, we are prepared to be sensible about all this, but, at the end of the day, in terms of the claim of oppression, CMIEG evidence and submissions go to great length to emphasise that it's a small subset of the employees of the CMIEG members who are affected by its application.  In those circumstances, it's no good saying, "This is 30 or 40,000 employees" because, on its own account, it could only be a small subset of those employees who have been paid accident pay, and I say, and I emphasise, we are prepared to be sensible about it and if there's some way that the information can be produced without simply searching for every document that deals with the matter, then we are perfectly open to a conversation about that, but it's just a little bit difficult to accept what is being said at face value.


In terms of the contract at 6(b) of the draft order and 3(b) in the list of documents in the application, we are content to live with the narrowing, as Mr Sebbens put it, subject to one matter, which is that the template contracts should be produced for all employees and not only the employees covered by the award.


The reason for that is that we will say, if contracts are produced that show that there is a contractual entitlement to accident pay independent of the award, that will have some significance for the impact of the variation on employers, that is, if they are going to continue to pay it regardless of what happens with the award, then that is a matter that will have some significance for the Commission's consideration of the issue, but subject to that qualification, we can live with what Mr Sebbens suggested in respect of 6(b).


They are broadly the things that we wanted to say about the objection, but the question of privilege might be a bit more nuanced than the other issue and if your Honour wants to hear from me at some greater length, I can do that.


THE DEPUTY PRESIDENT:  I will come back to the issue of privilege in a moment.


The third element, Mr Sebbens comments in respect of items 4(b) and 5(b).  Do you have anything you wish to say on those?  I am paraphrasing here, but I think, in essence, in respect of item 4(b), Mr Sebbens was saying any material relied upon by Mr Gunzburg was effectively set out in his statements and almost entirely attached to the document, so there was little, if anything, beyond that to be provided and, in respect of Dr Adam, he sets out in his witness statements what he relied on, but that hadn't been attached, and my interpretation of what Mr Sebbens says is that there was no objection to providing that material.


MR FAGIR:  We don't need any material that is attached to either of the statements.




MR FAGIR:  But we press for the rest.  If there is nothing, then that should be formally put because that might have some significance in due course and we don't want to have an argument about what was said about a mention early in the morning a month before the hearing.




MR FAGIR:  We don't need the documents that have already been produced to be produced again, but whatever remains should be produced or, if there is nothing to be produced, then that should be indicated in some formal way.


THE DEPUTY PRESIDENT:  All right.  Mr Sebbens, do you want to respond on anything that Mr Fagir has said?


MR SEBBENS:  Just a couple of points, Deputy President.  In respect of the position concerning legal professional privilege, Mr Fagir suggests that there has been a broad waiver by the filing of the statements of Mr Gunzburg and the expert report, and particularly in circumstances where it is intended to be relied upon.  Now, the case law, as it stands, doesn't go quite as far as Mr Fagir puts.  I believe there would still be things which are within legal professional privilege.  Even in the circumstances where a document is filed in a proceeding, waiver needs to be considered in respect of each of the communications and be assessed whether or not there has, in fact, been a waiver by the substance of the document that has been sought to be relied upon, so we don't accept that the case law stands as Mr Fagir puts it so broadly in that regard.


The matters of oppression and particularly the items in 6(a), it is still, unsatisfactorily, quite unclear what is intended to be meant by "any document which refers to a payment".  Even narrowing the class to those employees who are currently in receipt of accident pay employed by any of the CMIEG members at the moment, it could still include a vast number of documents.  What the purpose of that call is is able to be guessed at, but it has not been put expressly and, similarly, there needs to be some more particularity around what it is that is sought to be obtained.


One might imagine there could be a whole range of documents from payslips to payroll records, to internal memos, to communications with insurers to the like, but that just simply is still so broad as to be unable to be managed in a reasonable sort of way, particularly in the time that we have ahead of the hearing.


In respect of the employment contracts, Mr Fagir says that the caveats they put on the proposal for templates is it includes all employees whether they are covered by the Black Coal Mining Industry Award or not.  It is not, at first instance, able to be seen the relevance of template contracts with those people who are not covered by the Black Coal Mining Industry Award would have.  When I say "covered", I use that in the sense of the Fair Work Act, I am not talking about the award applying to individuals, I am talking about it covering them and, for those people who are not covered by the award and never will be, it is not able to be seen initially what the relevance of those persons' template contracts are.


Take, for example, very senior managers of the members of the CMIEG, what relevance their contract has to the questions before the Tribunal is just not able to be seen without some further explanation.


THE DEPUTY PRESIDENT:  In terms of the documents that are referred to at 4(b) and 5(b), the impression I got in respect of 4(b) from your previous remarks, Mr Sebbens, was that there was nothing to provide beyond what was attached to Mr Gunzburg's statement and, in respect of Dr Adam, it was only a case of providing what documents were referred to in his statement but there was nothing beyond those documents that were referred to in his statement that would need to be provided?


MR SEBBENS:  That is my understanding, of course, and my instructions.  In respect of 4(b) and 5(b), if an order were made in those terms, of course we would obviously take steps to ensure that that is indeed the case and, as Mr Fagir said, if there is nothing to be produced then that will be confirmed.  If there is, it will be provided, but my instructions at this stage are in respect of Mr Gunzburg's statement, everything that he relied upon has been attached to his statement and in respect of Dr Adam, the things that he refers to in his statement are the things he relied upon, but, as you have correctly characterised my comments, we have no objection to providing those documents and the brief which is referred to and attached, that is the letter that was the cover letter to the brief to Dr Adam, which is attached to his report, to provide them the documents that were conveyed on a USB that were given to the doctor.


THE DEPUTY PRESIDENT:  All right.  Mr Fagir, just in respect of item 6(a) - I am just trying to frame my question - what actually is being sought in respect of - what information is sought to be obtained or distilled from the documents that are sought in item 6(a)?


MR FAGIR:  What we want to establish is the actual pattern, frequency and quantum of payments of accident pay to employees.  We don't want some quasi scientific spin produced by Mr Gunzburg, who is wholly unqualified to perform the statistical analysis that he purports to perform, we want the data that will allow us to actually understand for ourselves what the actual pattern of quantum and frequency of payments is.  It is really a matter which is fundamental to this application and so far the applicant, although it is the repository of that information, hasn't troubled to really give the Commission any clear view of - setting aside Mr Gunzburg - - -


THE DEPUTY PRESIDENT:  Is it the incidence of accident pay being paid to an employee or is it, as you put it, the pattern of payments to individuals?


MR FAGIR:  When I say "pattern", that probably comprehends frequency, incidence and quantum and duration.  We want to know who has been paid it and when and how much they are being paid.


THE DEPUTY PRESIDENT:  I can understand incidence and duration.  I am not quite sure of the relevance of frequency.


MR FAGIR:  The relevance is that if there's one employee receiving accident pay each year per 10,000 employees, that will indicate one thing, if it's 100 per 10,000 employees or 1000, that will suggest something else.  Perhaps I am using some imprecise language, but the gist of it is we want - - -


THE DEPUTY PRESIDENT:  Let me just put something to you.  In essence, is what you are looking for data along the lines that over the past 12 months, X number of employees have been in receipt of accident pay and, as at today's date, 19 September, for want of a better example, of that group of employees, Y remain in receipt of accident pay and the rest had received accident pay for a period of A, B, C, whatever it might be, in terms of a sequel of things?  Is that the sort of data which you are looking for?


MR FAGIR:  That is the sort of data.  Twelve months is too short a period, but we can accept that there should be some kind of time limitation.




MR FAGIR:  Otherwise, I cavil with what your Honour has put only to this extent, that if there is to be an understanding of how long employees have been in receipt of the data, as we see it, the only way to do that is to produce point in time records, how many have been paid this month, last month, the month before, 12 months ago and so on, so although what we are after is what your Honour has suggested, to get to that point, we think we need data over a period of time as opposed to at a single point in time.


THE DEPUTY PRESIDENT:  And the period of time?


MR FAGIR:  Ten years would be the appropriate starting point, in my submission.


THE DEPUTY PRESIDENT:  We might be here until next year waiting to get that data.


MR FAGIR:  Your Honour, that is something that has been put casually and with not very much precision.  If it is seriously contended that there's some difficulty in producing this data, in my respectful submission, someone who knows about it should go on affidavit because history demonstrates, experience suggests time and again solicitors come along and say, "It's all too hard, it's going to take months to produce this" and when you actually drill down into it, it turns out not to be so and it turns out that reports and all kinds of things can be produced at the press of a button.


In my respectful submission, this issue could not be determined on the basis of Mr Sebbens saying the hearing date is in jeopardy or some other non-specific statement.  If it is seriously going to be suggested that these documents are going to take months to produce, that needs to be put by way of evidence, and clearly, in my respectful submission.


I should say, and perhaps we will come to this in a moment, but we say something similar about this claim of privilege and the lack of specificity in what has been put so far, but perhaps I am getting ahead of myself.


THE DEPUTY PRESIDENT:  I am just going to put the issue of privilege to one side for the moment.  I think that is probably the last issue I will deal with as a package.


Mr Sebbens, in respect of, I suppose, the data in 6(a), what might be possible by way of aggregate data in terms of incidence, duration of access of accident pay?


MR SEBBENS:  I don't intend to be cute by this response, your Honour, but that data has already been obtained under an order for production issued by the Commission on the application of the CMIEG by Coal Mines Insurance, the compulsory insurer for workers' compensation in the black coal mining industry in New South Wales and is available to both parties.  It has been accessed by, obviously, my client and Mr Gunzburg has then reviewed that data and prepared some tables in his own statement, but the actual raw data itself which deals with duration, frequency, et cetera, as has been described, and I accept it is limited to New South Wales, has been sought and has been produced from the third party who is most capable of quickly producing it and that is Coal Mines Insurance.


In respect of Queensland, it's a different prospect, as well as it is in Western Australia, because they don't have a compulsory scheme in the sense of a single compulsory insurer and each employer can either choose their own insurer or, as I understand in some States, be self-insured, but a large amount of the data which is being sought has already been produced.


As to your specific question of what could be produced and how quickly, I would need to seek some further instructions.  I accept what Mr Fagir says and that there may well be, subject to the amount of specificity, reports able to be generated.  That is a different prospect, however, to what the current call is, which is all records that refer to payment.  That requires some quite extensive search.  If what we are talking about is the running of some reports from perhaps a payroll system, that perhaps is a completely different prospect.


THE DEPUTY PRESIDENT:  Mr Fagir, is there anything you want to say about the reference that Mr Sebbens has made to the material that was provided by Coal Mines Insurance in respect of New South Wales?


MR FAGIR:  That fills in part of the picture on an aggregate sort of level in New South Wales, but that's only part of the picture.




MR FAGIR:  At the end of the day, these are the applicants, they have come along and asked to vary the award, presumably on the basis that it has some impact upon them, and if they are going to make that application then we are entitled to actually understand what, if anything, the impact of the variation will be upon them.  That is part of the answer to the point.  The industry-wide impact is one thing, but the impact on the particular applicants is another.  That is, in my submission, sufficient basis for this different tranche of information.  There are other reasons why it is relevant, but we think it is relevant in - - -


THE DEPUTY PRESIDENT:  I understand the relevance.   What I am trying to get to is what is possible within a reasonable timeframe without necessarily prejudicing the hearing dates in a way that doesn't disadvantage the respondents.


MR FAGIR:  Unfortunately, it is really Mr Sebbens that can tell us the answer to that question when he gets instructions, which apparently he hasn't done so far.  As I have said, we are open - - -


MR SEBBENS:  Mr Fagir - - -


MR FAGIR:  The last thing in the world that we want is to threaten the hearing dates, but it is just not good enough, in my submission, to come along and say, "It's all too hard."  It just isn't - - -


THE DEPUTY PRESIDENT:  Mr Sebbens, can I ask that you perhaps might take instructions in respect of providing similar material as what was obtained in respect of New South Wales in respect of Queensland and Western Australia?


MR SEBBENS:  Yes, sir.


THE DEPUTY PRESIDENT:  To plug what might be described as the gap.  There might be further conversations between yourself and Mr Fagir, or whoever else might be the appropriate representative of the respondents in this case, to see whether that is satisfactory, and that obviously needs to happen fairly quickly and I would be perhaps inclined to - well, one option might be to relist the matter for a report back at some stage next week to deal with residual issues, but that might depend on where we get to on the privilege issue, which I am just about to come to.  Is that something you are open to?


MR SEBBENS:  Yes, I can certainly seek instructions and I take it, from what you say, your Honour, that really, in a practical way, we would be running reports from perhaps the payroll or similar systems of the CMIEG members for that data.




MR SEBBENS:  That is quite a different thing than the current description provided.


THE DEPUTY PRESIDENT:  What is the timeframe with the New South Wales material that was provided?  How far back does it go?


MR SEBBENS:  As in which period does it go over, your Honour?




MR SEBBENS:  It, in some circumstances, goes back to 1989 and some of it goes back even further than that, back to 1972.


THE DEPUTY PRESIDENT:  Let's use the 10-year timeframe in respect of Queensland and WA and see how large a task that might be.




THE DEPUTY PRESIDENT:  Just in respect of 6(b), Mr Fagir, I am not quite sure I understand the relevance of contracts that might be in respect of employees who are not covered by the award.


MR FAGIR:  It would be relevant that if these benefits are provided to employees who aren't covered by the award, that is a matter that will bear on the question of whether the award variation will have any practical effect, that is, if employees are being paid accident pay on the basis not of legal compulsion but on the basis of some view reached by individual employers that that is the way things should be, then it is going to be fairly difficult, we would have thought, to demonstrate that this award variation will, in fact, have practical significance for employers in the industry.


THE DEPUTY PRESIDENT:  Isn't that something that could be demonstrated by reference to the penetration of enterprise agreements in the industry?  I am just not quite sure to what extent employment contracts are perhaps a relevant consideration in an industry where I understand bargaining is a fairly strong feature.


MR FAGIR:  Bargaining is a fairly strong feature in respect of part of the workforce, that is production, but it is not a feature at all - I withdraw that.  It is a feature in respect of a very small number of non-production employees, and by that I mean staff, and everyone else, in broad terms, APESMA coverage.


THE DEPUTY PRESIDENT:  And APESMA coverage, in those circumstances, people rely primarily on the award or common law contracts?


MR FAGIR:  I will put this from the Bar table, as it were, and if Mr Sebbens has a different view, he can put it.  In our view, the source of employment entitlement or staff employees is primarily almost entirely common law contracts and the general pattern is that they are quite sophisticated common law contracts, some of which Mr Sebbens no doubt has drafted, which deal with a variety of matters, complemented by similarly comprehensive policies dealing with a different raft of matters and there's some variation from employer to employer.  For example, some employers deal with redundancy as a contractual matter and others deal with it as a matter of policy, but, either way, the principal source of entitlements as they are actually paid is contract and policy, in our experience.


THE DEPUTY PRESIDENT:  Would there be any employees eligible to be APESMA members who wouldn't be covered by the award?


MR FAGIR:  Some, at the margins.  I would have to accept it would be a rump; the bulk of the membership of APESMA are in award-covered classifications.


THE DEPUTY PRESIDENT:  In those circumstances, the proposition that Mr Sebbens put in respect of provision of template contracts and policies in respect of those employees covered by the award would cover the overwhelming majority of APESMA eligible employees?


MR FAGIR:  Yes, I would have to accept that.


THE DEPUTY PRESIDENT:  All right.  In those circumstances, do you continue to press the residual component, as I would describe it, in respect of what you sought as the addition to what Mr Sebbens indicated that his clients were willing to provide in respect of 6(b)?


MR FAGIR:  I press it on this basis, and I will put this once and I don't think I can improve on the dot, I would just be repeating myself.




MR FAGIR:  We press for it on the basis that it's significant because if it turns out that accident pay benefits are being extended to non-award employees as a matter of employer policy, that is a matter that is of some significance in terms of demonstrating the implications or lack of implications of the variation that is sought.  That is the basis on which we press for the full suite of contracts.


THE DEPUTY PRESIDENT:  Mr Sebbens, anything you want to say on that last point?


MR SEBBENS:  I agree with Mr Fagir there might be some at the margins and, similarly, the answer to his proposition may well be at the margins, that is, there might be template contracts to extend to those who sort of fall within a class, some of whom might not exactly come within coverage of the award but who are treated similarly, so accident pay might expressly be provided for in contracts, but as for the class that just is completely outside of that, and I am talking here about people who are not located at mines, who are in senior management, I just can't see any legitimate purpose to seek the template contracts of such persons, but those who are located at mines who fall clearly within the coverage of the award or who might be just sort of at the margins, or there might be some doubt about it, and are unlikely to be on the same template contracts, we don't have any problem with providing those template contracts, but as for the other class completely outside of that, I just can't see any purpose in it.


THE DEPUTY PRESIDENT:  Mr Fagir, if Mr Sebbens was to produce template contracts for those either covered by the award or not covered by the award and working at mines, would that deal with the issue from your perspective?






MR FAGIR:  That would be a reasonable compromise we would accept and we could live with that.


THE DEPUTY PRESIDENT:  All right.  Let's proceed on that basis, Mr Sebbens.  Is that all right?


MR SEBBENS:  Thank you.


THE DEPUTY PRESIDENT:  In respect of the issue of privilege, one way forward would be for the material in respect of which privilege is sought to be provided to the Commission in confidence for the Commission to form some view in terms of determining that particular issue.  At the moment, I have not had the opportunity of seeing some of the documents, obviously, and I haven't reviewed in the submissions that have been filed thus far, so I can't give you an indication.


I am not sure the issue of itself is necessarily going to be determined today, but I am looking for a way as to how it is determined in a prompt manner such that minimises any prospect of the hearing dates being affected.


Who wants to respond first to the proposition that it be provided to the Commission in the first instance?


MR FAGIR:  For our part, Your Honour, we are agnostic about that course.  Certainly requiring the step of, firstly, production of documents and then separating them into privileged and potentially privileged documents compared to everything else is a big step forward.  If the further step is that the Commission forms some view about the capacity of the documents subject of the claim to be privileged, we don't have a strong view about that one way or the other, although, at the end of the day, we would probably press for some description of the documents subject of the claim for privilege and some perhaps short explanation of the way in which they are said to attract privilege.


THE DEPUTY PRESIDENT:  I accept that.  I accept that, from your perspective, you would want to have a degree of transparency, Mr Fagir, and I understand that.  Mr Sebbens?


MR SEBBENS:  The course that you have suggested, your Honour, is not an unusual one, particularly in the court process as well, for that course to be taken that we provide the documents confidentially to the Commission to review to determine or to form its view about whether there is privilege that attaches.  It may well be that if there's doubt on the face of the documents, the parties might be given an opportunity to make some short submissions about that.


THE DEPUTY PRESIDENT:  Sure.  I think that would be my intention.  To the extent that I have got doubts as to whether privilege applies, I will give an indication as to my thinking to the parties and provide them with an opportunity to make submissions on that.  What I am hearing is both parties are amenable to that approach.  How long will it take to provide the material, Mr Sebbens?


MR SEBBENS:  We could likely collate the materials by the end of the week.  We just need to assess Dr Adam's movements.  I am not sure if you recall this, your Honour, but the hearing dates are 5 and 6 October and we are not certain with Dr Adam because he is travelling overseas and it just means his availability (indistinct) that travel.  We just need to confirm that and/or perhaps have someone at his office assist, but by the end of the week I think would be suitable.


THE DEPUTY PRESIDENT:  All right.  If you could do that, that would be terrific.  Would you be providing them in soft copy, hard copy?


MR SEBBENS:  Whatever is your preference, your Honour.


THE DEPUTY PRESIDENT:  I am just mindful of trying to look at things promptly, if I can.  If it was not too onerous to provide them in soft copy, and there is a public holiday in the ACT on Monday, and if they can be provided in soft copy, I can look at the material over the weekend and wouldn't necessarily lose three days waiting for the hard copy to arrive from perhaps the registry in Sydney.


MR SEBBENS:  Yes, we can do that, your Honour.


THE DEPUTY PRESIDENT:  That would be terrific, thank you.  What my intention would be is, having reviewed the material, to perhaps bring the matter back on for just a report back.  If, in the interim, firstly, the material in 4(b), or 5(b) really, that is to be provided could be provided to Mr Fagir and a confirmation that there is nothing beyond what is already referred to in Mr Gunzburg's statement in respect of item 4(b).


You are going to seek instructions in respect of - bear with me - or you are going to get the data around Queensland and WA, do that further work around that and, similarly, if the template employment contracts in the terms we have discussed this morning for people working at mine sites that are covered by the award or who might be at the margins could be provided, I think that would be helpful as well.


I think that is a fair summary of where we have got to at the moment.  Once I review the material, I will look to bring the matter back on so we can deal with the issue of privilege, and I would hope to be able to do that - ideally I would like to be able to do that at some stage next week, but it just depends on some other matters that are running at the moment as well.




THE DEPUTY PRESIDENT:  Anything else that we need to discuss this morning?


MR SEBBENS:  No, thank you, your Honour.


MR FAGIR:  No, not for our part, thank you.


THE DEPUTY PRESIDENT:  Thank you.  Enjoy the rest of your day and thank you again for making yourselves available so early in the morning.

ADJOURNED INDEFINITELY                                                          [9.20 AM]