no direction should be made by the Commission.
8 I should interpolate here that when reference was made to the Commonwealth being given a limited right to be heard, what was meant was that the Commonwealth was given leave only to make submissions today on its application that no directions be made in the proceedings but the Commonwealth's future role in the proceedings was to be determined by the Full Bench in due course.
9 Significant emphasis was placed by senior counsel on public interest considerations in the present proceedings, which were said to be raised by the considerations he relied upon, an outline of which I have referred to. Most of the employer interests supported, in a practical sense, the approach to the Commonwealth, and stressed the unusual set of circumstances that now arose in relation to the present application and that it would be therefore inappropriate to make any decision without the Commission being in full possession of all relevant information, including the decision of the Full Bench of the AIRC which was likely to be delivered by Christmas.
10 The Catholic Commission for Employment Relations (CCER) and the Local Government Shires Associations (LGSA), whilst recognising that it was important for the Commission to have all relevant information available to it, were concerned that these proceedings should occur in the usual orderly way, because, in the case of CCER, many of the employees employed by the employers it represented were not employed by constitutional corporations, and any determination of the present proceedings would be relevant to their wages and conditions. The LGSA particularly emphasised the importance of the application proceeding in the usual orderly way.
11 It is appropriate to record that because of the commendable cooperation that the major industrial parties in this jurisdiction extend to each other, and to the Commission, which has occurred over many years, the Commission has been able to plan, at least for the last seven or eight years, the fixing of a State Wage Case, usually in May of each year, and to do so by providing informal advice to the major industrial parties, either early in the relevant year, or more usually in the last few years, late in the preceding year. It therefore so happens that the application by Unions NSW made in November of this year coincides approximately with the time when, in the usual course, the Commission would have informally advised the major industrial parties of when the State Wage Case (if one was appropriate) would be heard the following year.
12 The facility that has been available in previous years has of course been useful in ensuring the best use of the Commission's very busy schedule, and also useful in alerting the parties to the need to ensure their availability for the dates set for the State Wage Case.
13 In a practical sense, that situation has resulted in State Wage Cases being very efficiently heard and determined, and that has been in no small measure due to the cooperation of the parties, which has been earlier referred to. In a real sense, what the Commission has before it are a series of arguments which compete around these central themes. On the one hand, the applicant's approach is supported by the submissions of Mr Murphy of counsel for the Minister, who has stressed the need, in the light of the new circumstances presented by the impending federal legislation, to have some certainty in wage fixing for those persons who would not be covered by federal awards and the prima facie right of an applicant for proceedings to be heard and to have them heard in an orderly way.
14 The other side of the argument, represented by the majority of the employers and the Commonwealth, is that all relevant considerations point in favour of deferring the making of directions. That is put on various levels. For example, one consideration which is heavily relied upon is the reserved Full Bench decision of the AIRC, and in that respect it is said it would be inappropriate to make a decision until a decision of the AIRC is available.
15 The argument against making directions is also put, of course, on a more comprehensive basis, that it would be inappropriate to proceed to make directions towards any hearing because, for example, the timetable does not allow the likelihood of important economic evidence to be available to the Full Bench when it considers this application, and also because of the uncertainties and public interest considerations said to be generated by the new federal legislation and, as such, that it would be premature to make any directions at this stage.
16 In seeking to set out the arguments in this way, it is possible that some of the important aspects of them have not been enunciated, but nevertheless, it is felt that their main thrust has been set out. The circumstances which are before the Commission are certainly varied, but it is not as though the Commission is without guidance in its general approach to these matters, and an important consideration is that, provided parties are given a proper opportunity to be heard, an applicant for an award (or even for a State decision such as the present application) has a right to have its application heard, within the constraints of other Commission business, in an orderly way.
17 On the other hand, the Commission has always, in my experience, been careful to ensure the right to be heard is a real right to be heard; that is, it is a right to have the case put in a proper way and the Commission has always been careful to avoid the notion of the right to be heard being, and being seen to be, a mere formality.
18 The Commission should, therefore, take an appropriately cautious and incremental approach in determining what directions, if any, should be made today. This inevitably involves a very fine balance of the competing considerations, but also a recognition that the major industrial parties in this jurisdiction should be able to prepare for 2006 with some expectation as to what might occur in these proceedings.
19 It seems to me that the appropriate balance would be achieved if the majority of the directions sought by the Labor Council was made, but with an appropriate safeguard built into those directions to ensure that they can be reviewed by the Full Bench early in the New Year, if it is appropriate to do so.
20 Before actually making those directions, I should observe that one of the submissions put by Mr Grozier for Australian Business Industrial, supported by Mr McDonald for Employers First and also by other employer representatives, was that direction number 3 did not give sufficient time for the kind of reply that might be necessary to be made as to the material to be filed by Unions NSW and the Minister, in terms of proposed directions 1 and 2.
21 It is, of course, difficult to be sure at this stage precisely what material the employers will provide at that stage, but having regard to some of the arguments put by the employers, it seems reasonable to assume that some of their material will be material of a substantive nature, that is, material not specifically responsive to that of Unions NSW and that of the Minister, and therefore material which, in a practical sense, the employers might be reasonably expected to commence preparation of, prior to their receiving material served by Unions NSW and the Minister in terms of the proposed directions 1 and 2.
22 Although I did at one stage hesitate about making direction number 3, I consider it is appropriate, having regard to the real possibility that some of that material covered by that direction would not be material in reply, to ensure that the employers are on notice that time is running, as it were, in respect of their material. It was, for those reasons, that my initial hesitation about making direction 3 has been resolved.
23 I therefore make directions in terms of proposed directions 1, 2, 3 and 4 in Exhibit 1. I also intend, subject to hearing from the parties, to set the matter down before the Full Bench at 9.15am on Tuesday 14 February 2006, and grant liberty to apply to any party (and for this purpose only, the word "party" includes the Commonwealth) to seek variations to those directions, provided documents setting out the variations sought in the form of notices of motion or any other suitable document, and short submissions in support thereof, are filed and served by 12 noon on 7 February 2006.