PN1

ACTING PRESIDENT HATCHER: Mr Borenstein and Mr Bakri, you continue your appearance for the applicant?

PN2

MR BORENSTEIN: Yes.

PN3

ACTING PRESIDENT HATCHER: And Mr Dowling and Mr Matthew, you continue your appearance for the respondent?

PN4

MR DOWLING: We do. Thank you, Acting President.

PN5

ACTING PRESIDENT HATCHER: All right. So who'd like to report on the position?

PN6

MR BORENSTEIN: Perhaps we could start by thanking the Commission for allowing us the time yesterday and this morning. The Commission will have received a document, this morning, I believe.

PN7

ACTING PRESIDENT HATCHER: Yes.

PN8

MR BORENSTEIN: Which sets out an agreed position that the parties were able to reach and in relation to which we seek some indicating from the Commission about whether the Commission is prepared to adopt the process suggested in that document. The parties, we would urge the Commission to do so, as a way of resolving the application in the most efficient way and the most timely way.

PN9

You will have seen that if the Commission is prepared to deal with the issue of the rules which is referred to in paragraph four of the document, that will significantly reduce the area of disputation in the application, and hence the time necessary in the Commission to deal with it.

PN10

ACTING PRESIDENT HATCHER: Mr Borenstein, can I just check with you our understanding of what the parties want us to do.

PN11

MR BORENSTEIN: Yes.

PN12

ACTING PRESIDENT HATCHER: In sequential order. So the first step is we allow you to amend your application in respect of the rules annexures.

PN13

MR BORENSTEIN: Correct.

PN14

ACTING PRESIDENT HATCHER: The second step is we rule on acceptance of the application under Section 94A?

PN15

MR BORENSTEIN: Yes.

PN16

ACTING PRESIDENT HATCHER: The third step is we make findings pursuant to section 100(1)(ba) in respect of the compliance with section 95A of the Rules. And then the final step is we conduct a further hearing in late February as to the balance of the matters about which we have to be satisfied in section 100(1). Is that correct?

PN17

MR BORENSTEIN: I believe that's so.

PN18

ACTING PRESIDENT HATCHER: Yes. Do you agree with that, Mr Dowling?

PN19

MR DOWLING: Save one addition, I think, your Honour. And that is step three that your Honour described the findings in relation to 95A under section 100(1)(ba). We have anticipated as you might have seen from the document that that would involve giving the parties the opportunity soon rectify any concerns that the Bench might have and to return before you with the mechanism by which we endeavour to rectify those issues.

PN20

ACTING PRESIDENT HATCHER: Yes. I was going to explore with you - - -

PN21

MR DOWLING: Or address it.

PN22

ACTING PRESIDENT HATCHER: Yes. I was going to explore with you, subsequently, the mechanism by which we might � you propose we reach that step.

PN23

MR DOWLING: I understand.

PN24

ACTING PRESIDENT HATCHER: I assume it's some sort of intuitive process where you're going to show us the Rules and then we'll examine them and raise any concerns with you. Is that - - -

PN25

MR DOWLING: That's correct.

PN26

ACTING PRESIDENT HATCHER: All right. Yes. Sorry, Mr Borenstein.

PN27

MR BORENSTEIN: Yes. I also just wanted to clarify something that you said about section 94A. You will see that paragraph five of the document indicates that if the Commission is prepared to proceed in the manner proposed by the parties that CFMEU withdraws its objections and consents to an order being made to pursuant to section 94A. I just wanted to make that clear.

PN28

ACTING PRESIDENT HATCHER: Yes.

PN29

MR BORENSTEIN: In terms of documents that we would hand up, if the Commission agrees to the process? As a result of a lot of time spent yesterday between the parties, the parties have developed eligibility rules for each of the organisations after amalgamation which are proposed to be substituted for the rules that were attached to the application.

PN30

ACTING PRESIDENT HATCHER: Well, I - - -

PN31

MR BORENSTEIN: And it's proposed that those documents would be handed up to the Commission if the Commission agrees to proceed with this process and that within the next 24 to 48 hours there would be some supplementary rules dealing with the balance of the rules to accommodate those eligibility rules that have been changed from the ones that are in the annexures to the application.

PN32

ACTING PRESIDENT HATCHER: So just to be clear the eligibility rules which you're going to propose to us, which need to comply with section 95A - - -

PN33

MR BORENSTEIN: (4) to (6).

PN34

ACTING PRESIDENT HATCHER: - - - (4) to (6) will they relate to your primary application, or your alternative application or will there be alternatives?

PN35

MR BORENSTEIN: The primary application.

PN36

ACTING PRESIDENT HATCHER: Right.

PN37

DEPUTY PRESIDENT GOSTENCNIK: Mr Borenstein as a consequence of that that if we reject the primary application you proceed on the basis � you proceed with the case on the basis of the secondary application?

PN38

MR BORENSTEIN: I'm sorry. I didn't hear the last part of that.

PN39

DEPUTY PRESIDENT GOSTENCNIK: If we were to reject the primary manifestation of the constituent part does that mean that the applicant will proceed with � to final determination of its secondary position?

PN40

MR BORENSTEIN: Are you asking me whether you proceed on the basis of the rules as they are annexed to the alternative application?

PN41

DEPUTY PRESIDENT GOSTENCNIK: Well, if for some reason we're not persuaded that the primary constituent part falls within 95 � sorry, 94 � your current application has a secondary proposal.

PN42

MR BORENSTEIN: Yes.

PN43

DEPUTY PRESIDENT GOSTENCNIK: Does it mean that the secondary proposal will proceed? Or is part of the arrangement for the secondary proposals falls away altogether?

PN44

MR BORENSTEIN: Can you just give me a moment?

PN45

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN46

MR BORENSTEIN: Deputy President the intention is that if the primary application fails that we would ask the Commission to rule on the alternative application and I am told that the changes to the eligibility rule that we are handing up would be proposed in relation to the new union that would be registered on that alternative application as well.

PN47

DEPUTY PRESIDENT GOSTENCNIK: All right. So we'll have two alternative sets of rules? One for the - - -

PN48

MR BORENSTEIN: The rules will be the same in respect of both which is the way in which the applications have been made presently.

PN49

DEPUTY PRESIDENT GOSTENCNIK: All right. So if, for example, having received the rules we identified � I am speaking theoretically now � that we identify that the proposed eligibility rule would not comply with the requirements of section 95A in respect of the alternative proposal we would inform the parties of that view and some corrective step might be taken?

PN50

MR BORENSTEIN: Yes. And we would endeavour to meet the problems that the Commission enforces off.

PN51

ACTING PRESIDENT HATCHER: So we should address the rules from the perspective of both alternatives?

PN52

MR BORENSTEIN: That would be helpful, yes.

PN53

ACTING PRESIDENT HATCHER: Yes. All right. I understand.

PN54

MR BORENSTEIN: I'm not sure that there's anything else I can add to the written submission.

PN55

ACTING PRESIDENT HATCHER: Right. So in terms of the process of the assessing the rules what do you have in mind as to how we might go about that task?

PN56

MR BORENSTEIN: What we have in mind is to provide you with the substitute rules. As I said, we will be providing you in the next little while, in the next few minutes, with the substitute eligibility rules. Within the next day or two we will provide you with the balance of the rules to substitute for those that are in the application, including the industry rules and other rules. And then we would � we had envisaged that the Commission would review those rules against the criteria in section 95A(4) to (6).

PN57

DEPUTY PRESIDENT GOSTENCNIK: Is it envisaged, Mr Borenstein, that there would be a joint submission as to how the rule was complied?

PN58

MR BORENSTEIN: I'm sorry?

PN59

DEPUTY PRESIDENT GOSTENCNIK: Is it envisaged that there would be a joint submission � written submission � to indicate how the rules that you're going to hand up comply? Mr Dowling says 'yes'.

PN60

MR BORENSTEIN: That hadn't been envisaged, Deputy President, but if that would be of assistance then that could certainly be attended to.

PN61

DEPUTY PRESIDENT GOSTENCNIK: Well, speaking for myself I can give it to you.

PN62

ACTING PRESIDENT HATCHER: I think that would be of assistance. I'm not sure that we undertake an undirected examination of the rules. If the parties can direct us to what we need to look at to satisfy the statutory requirements that would make our task easier.

PN63

MR BORENSTEIN: We're here to assist the Commission. If that would be of assistance then we would do that. And then we would, as Mr Dowling has indicated, I think, we would hope that the Commission would give an indication of its thinking about the rules. Whether the Commission was of the view that they did comply or if they didn't comply would give some indication of the areas of non-compliance of the requirements, and then the parties have agreed on the process to try and address that.

PN64

So, Mr Bakri was suggesting to me a method by which the Commission might indicate its position he was suggesting something like the background paper that was issued in the 94A application. But I'm not suggesting that the Commission should necessarily go to that much effort for that.

PN65

But once we get some indication about where the Commission is concerned we would then address that jointly and hopefully satisfy the Commission about that and then the matter can proceed effectively without objection after that.

PN66

As to the timing of when we can provide you with a document � a written submission � we might endeavour to do that before the end of the week but given the time of year it might be a little bit later than that.

PN67

ACTING PRESIDENT HATCHER: All right. Thank you. Mr Dowling?

PN68

MR DOWLING: Thank you. Not very much I need to add to that. As my learned friend said the parties contemplated that the eligibility rules will be provided today and the balance of the rules within 48 hours.

PN69

The parties had not contemplated what the Bench has said today but we agree it's a useful exercise, a joint set of submissions as to why they meet the requirements. We also share some concern about the ability to do that before the end of the week but we will discuss it and we will do it as soon as we possibly can.

PN70

As to the process by which the Bench might communicate any concerns it has we don't want to be prescriptive. We had for ourselves contemplated something like an agreement approval process where, for example, on the BOOT question the Commission might convey to the parties some of the concerns they have about whether it meets the relevant test and the parties are given an opportunity to address it something similar to that process. But, as I say, we don't want to be prescriptive. We think the exercise can be done with the good will of everyone involved.

PN71

ACTING PRESIDENT HATCHER: Is it envisaged that the acceptance of the application under section 94A would involve us issuing some sort of interlocutory decision. Is that the correct course?

PN72

MR DOWLING: We think perhaps that the step that's contemplated by the parties could be achieved by the making of an order. And that's an order that we'd, under the process, described in the agreement that we would consent to. The parties, I think it's right to say, hadn't contemplated the reasons as a result of it or reasons in support of it.

PN73

ACTING PRESIDENT HATCHER: I mean the consent's important but at the end of the day we have to make the findings in relation to our satisfaction about the matters in subsection (2).

PN74

MR DOWLING: You do. What has changed, Acting President, is that we don't object that those � we don't maintain the objection, subject to the course that's described in the agreement. We don't maintain the objection in respect of those matters or the constructional argument that we put, of course, that there might be other matters.

PN75

ACTING PRESIDENT HATCHER: Yes. All right.

PN76

MR DOWLING: Thank you, your Honour.

PN77

DEPUTY PRESIDENT GOSTENCNIK: And to be clear the constituent part in subsection (2)(b) is the primary proposal or both.

PN78

MR DOWLING: Both.

PN79

DEPUTY PRESIDENT GOSTENCNIK: Both. So there are, in fact, two findings made under that subsection in relation to each once one (indistinct).

PN80

MR DOWLING: That's correct.

PN81

ACTING PRESIDENT HATCHER: All right. We might just adjourn for a short period and consider what's been put.

SHORT ADJOURNMENT�� [10.50 AM]

RESUMED�� [11.05 AM]

PN82

ACTING PRESIDENT HATCHER: All right. I can indicate that the Full Bench is prepared to accede to the procedural path jointly proposed by the parties. We anticipate � and any party can just interrupt me if this is inconvenient or not consistent with the arrangement but for our part we understand it would involve the following steps.

PN83

Firstly, we would grant leave to the applicant to file an amended application, that is an application containing the amended rules by the end of the week, that is by 23 December 2022.

PN84

The second step is that � and the parties can fill in the date for us or identify a convenient date � but we would direct the parties to jointly file a submission addressing the requirements of section 100(1)(ba) vis-�-vis the amended rules and the amended application.

PN85

What might be a convenient date for that to be done by?

PN86

MR BORENSTEIN: Just excuse me. We would get that to the Commission on or before the 30 January.

PN87

ACTING PRESIDENT HATCHER: All right. And the third step would be that we would then anticipate issuing an interlocutory decision addressing acceptance of the application as amended under section 94A.

PN88

The fourth step would be that we would then engage in a consideration of whether the amended rules satisfy the requirement of section 100(1)(ba) and to the extent that we have any concerns in that respect we will engage in some appropriate process of communication with the parties which might involve further amendments.

PN89

And as a final step we propose to reserve two dates for final hearing. The best we can do, I'm afraid, is the 1 and 2 March.

PN90

MR BORENSTEIN: 1 and 2 March is all right at this end.

PN91

MR DOWLING: And with us also. Thank you.

PN92

ACTING PRESIDENT HATCHER: All right. So does that deal with all the matters?

PN93

MR BORENSTEIN: That deals with the process that we provided in the submissions.

PN94

ACTING PRESIDENT HATCHER: Yes.

PN95

MR BORENSTEIN: There are a couple of matters that we wanted to deal with in addition to that.

PN96

ACTING PRESIDENT HATCHER: Yes.

PN97

MR BORENSTEIN: One of them is to provide the Commission with the revised eligibility rule.

PN98

ACTING PRESIDENT HATCHER: Yes.

PN99

MR BORENSTEIN: And so we're handing up the revised eligibility rule for the new organisation and also a revised eligibility rule for the existing organisation following withdrawal.

PN100

ACTING PRESIDENT HATCHER: And this will be incorporated in the amended application to be filed?

PN101

MR BORENSTEIN: No, to substitute for � they were in partial substitution for what are annexures 5 and 6 to the present application.

PN102

ACTING PRESIDENT HATCHER: And Mr Dowling your client will still be the CFMMEU. That's very convenient.

PN103

MR DOWLING: It will.

PN104

ACTING PRESIDENT HATCHER: Yes.

PN105

MR BORENSTEIN: Excuse me. The second thing that we wanted to deal with is a question of confidentiality of some of the information in the answering materials that we filed on the directions. And we have got a draft order that we ask the Commission to make.

PN106

And if I can just indicate to the Commission what the items are in the draft order. Item (a) is annexure 2 to the application which is the bundle of authorisations which identified various members and where they work. Item (b) is the third witness statement of Mr Kelly which, again, identifies the membership at various workplaces.

PN107

Items (c), (d), (e), (f), (g), (h), (i) are statements from district secretaries dealing with membership in their particular districts and the reporting of those to Mr Kelly. Item (j) is the statement of Melanie Mitchell who, again, she is an employee of the division and was involved in the vetting of the membership numbers and the authorisations and makes a statement about that.

PN108

And then, the final one, Mr Pasfield � in that statement he annexes the combined role of all of the various districts and membership role which shows all the membership and location et cetera.

PN109

And so on the same basis that we ask the Commission and the Commission agreed to make orders about the confidentiality of the membership role is we've asked the Commission to make confidentiality orders under section 594 in respect of all of these statements that have been filed with the Commission.

PN110

ACTING PRESIDENT HATCHER: Right. Is there any issue with that Mr Dowling?

PN111

MR DOWLING: No, your Honour.

PN112

ACTING PRESIDENT HATCHER: Right. Mr Borenstein can your client forward an electronic copy of this document to my Chambers please?

PN113

MR BORENSTEIN: Absolutely.

PN114

ACTING PRESIDENT HATCHER: Anything further?

PN115

MR BORENSTEIN: No. That's all I have. Thank you.

PN116

ACTING PRESIDENT HATCHER: Right. Anything further, Mr Dowling?

PN117

MR DOWLING: No, your Honour, thank you.

PN118

ACTING PRESIDENT HATCHER: All right. Well, we congratulate the parties on the progress they've made to date. We will take steps to formalise the matters which we have adverted to as to the further procedural progress of the matter and we will now adjourn.

ADJOURNED INDEFINITELY�� [11.14 AM]