C2001/1820, Transcript of Proceedings [2001] AIRCTrans 1341 (29 June 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/1820

COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES
AWARD 1999

Application by the Commonwealth Bank of
Australia to vary re insertion of clause
15.6 into the award

SYDNEY

9.12 AM, THURSDY, 7 JUNE 2001

Continued from 26.4.01

PN93

THE SENIOR DEPUTY PRESIDENT: Good morning, everybody. Unless there has been a change in plan you have an application to make, Mr Haylen?

PN94

MR HAYLEN: I have. Yes, thank you, your Honour. The application we have is that the Commission adjourn these proceedings to a date to be fixed, that date having reference to the determination by the Federal Court of the proceedings between the FSU, Mr Adams, and the Commonwealth Bank, that have already been referred to. I will develop an alternative submission that should the Commission reject our primary position, that there be a reference of two questions to the Federal Court, but that is in the alternative and I must say I have not reduced that to writing. It would have been convenient if I could have, but I only recently, within minutes, got instructions about that particular matter, but I can do that later on in the day.

PN95

Your Honour, I would proceed on the basis that the material that was before you on 26 April when my learned friend made his application under section 107, what was said by the parties and the documents would also be before you for the purposes of these proceedings; it is the necessary background. Primarily, our position is this, that there are, as I indicated on 26 April, two proceedings in the Federal Court seeking penalties and payment for an alleged breach of the 1990 award covering the bank. Those proceedings claiming that the redundancy provisions, the redundancy clause applied in circumstances where the Information Services Department was outsourced to EDS.

PN96

In both those cases there are associated claims claiming a breach of contract. That arises from a claim that the unregistered agreement, the 1999 agreement on redundancy was also breached. It, in terms is identical to the award except for quantum. It increases substantially the sums payable by way of severance pay. Now, they have reached this position: a case concerning originally about 70-odd secondees, people who remained with the Commonwealth Bank but who were seconded to work for EDS in delivering the EDS service to the bank in relation to its information technology, is not part-heard before Moore J. There were four days of hearing, and that case has two more days set down to conclude it.

PN97

A second proceeding dealing with, in round terms, about 550-odd persons who were members of the FSU and resigned, signed letters of resignation, and joined EDS, is before Wilcox J. There have been several directions hearings. He has declined to adjourn those proceedings on one application made by the bank because of these proceedings, and they are listed for five days commencing 9 July. The background to those proceedings - can I hand up an affidavit of Mr Hendry sworn today? It is formal really but we thought it was appropriate to put it in this form and I have not had a chance to give my friend a copy of this yet, but perhaps if I can just say a few words while he has a quick look at the affidavit?

PN98

On the last occasion we put to you that it was an open inference from the way in which the Federal Court has developed and what was happening in the Federal Court, that the application for variation lodged on 10 April in this Commission was substantially just a tactic by the bank and one we have the view perhaps, at least in part design, just to have the union in a number of jurisdictions expending its resources. Could I come to Mr Hendry's affidavit of today's date? In paragraph 2 he speaks of the Adams v FSU proceedings being filed on 5 October last year.

PN99

In paragraph 3 there was a directions hearing before Wilcox J on 22 November. He made directions and orders, that is annexure A, and you will see that there are points of claim, points of defence, which were required by the end of the year. I think, more or less, that timetable was complied with. There were some other orders made in relation to representative proceedings that I do not need to take you to. In paragraph 4 there was a further directions hearing in the matter before Wilcox J on 20 December that resulted in the Court directing the parties to attend a discovery and the filing of affidavit evidence.

PN100

In paragraph 5 the bank fell behind with the timetable of 20 December. On 13 March my instructing solicitors for the applicant sent a letter to the CBA solicitors complaining that the CBA was out of time with discovery; that is annexure B. I do not read that to you but you can see that matter briefly taken up in about a three paragraph letter. On 10 April this year the Commonwealth Bank served a notice of motion on the applicant's solicitors for a stay of proceedings pending a determination of this matter. I can hand a copy of that up. I will tender that, I think?

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, you formally tender the affidavit, do you not? Is there any objection to the affidavit? I do not believe you have had anything tendered before, Mr Haylen?

PN102

MR HAYLEN: No, I do not think so, your Honour, no.

PN103

THE SENIOR DEPUTY PRESIDENT: I will mark the affidavit of John Justin Hendry made 7 June 2001 exhibit FSU1 in these proceedings.

EXHIBIT #FSU1 AFFIDAVIT OF J. HENDRY DATED 07/06/2001

PN104

MR HAYLEN: I will separately tender the notice of motion.

PN105

THE SENIOR DEPUTY PRESIDENT: The notice of motion.

PN106

MR DOUGLAS: No, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: The notice of motion dated 10 April 2001 lodged by the solicitors for the Commonwealth Bank I mark exhibit FSU2.

EXHIBIT #FSU2 NOTICE OF MOTION DATED 10/04/2001

PN108

MR HAYLEN: You will see in FSU 2, your Honour, that it was just a straight-out motion seeking the stay of the Federal Court proceedings pending the termination of the proceedings now before the Commission. In paragraph 7, the FSU responded with its own motion. Could I tender a copy of the notice of motion and attached to it is the supporting affidavit of Mr Hendry.

PN109

THE SENIOR DEPUTY PRESIDENT: Any objection to this tender?

PN110

MR DOUGLAS: No, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: The notice of motion and attached affidavit of John Justin Hendry I mark as FSU3. I note that the notice of motion just referred to is dated 12 April 2001.

PN112

MR HAYLEN: Yes, that is so.

EXHIBIT #FSU3 NOTICE OF MOTION DATED 12/04/2001 AND AFFIDAVIT OF J. HENDRY

PN113

MR HAYLEN: So it is a response to what the bank did. It sought two things: firstly, an order that the first respondent, that is the bank, take no further steps in support of its application to vary clause 15 of the 1999 award. Secondly, that should have been an order rather than an award: an order that the second respondent, that was this Commission, be restrained from taking any further steps to hear, or determine the first respondent's application to vary clause 15.

PN114

Now, in paragraph 8 it says:

PN115

On 20 April Wilcox J dealt with the competing notices of motion and made the following directions -

PN116

he did entertain discussion, although it was in for directions only. It was rather an extended directions hearing. He indicated to the parties that he was not prepared to adjourn the Federal Court proceedings. After he made that view clear he also raised I must say to your Honour, with us, his concern about his jurisdiction to restrain this Commission. We said there is a recent authority for that proposition, but we ultimately agreed that it would be more appropriate to make the adjourn - an application here first before moving the Federal Court. So a variety of reasons, both parties then did not press their notices of motion that they, if you like, remain on the record.

PN117

He then, because of our complaint about discovery not yet being completed, revised the timetable, and you will see the respondent was to provide discovery by 4 May. The applicant was to provide discovery by 11 May. All affidavits by the respondent were to be served and filed by 1 June. The hearing day was maintained and any affidavits in reply be filed and served by 15 June 2001. Then we say this in paragraph 9, or Mr Hendry does:

PN118

On 15 May Geoffrey Edwards sent a letter to Freehills advising that the Commonwealth Bank was in breach of the fresh directions.

PN119

Copy of that letter is annexure C. I do not read it but you will see it raises that issue in effectively a one paragraph letter. In response to this letter, paragraph 10, Freehills sent a letter to Geoffrey Edwards and Co dated 15 May; that is annexure D. You will see in that document that they were looking at the draft list of documents. They had some concerns. They set out two types of concerns about documents. Then on paragraph 11, on 20 May 2001 Geoffrey Edwards & Co sent a letter to Freehills in response; that is annexure E. In that letter the two issues of concern were addressed in the hope that they may satisfy the concerns of Freehills. Then 12, on 5 June 2001 Geoffrey Edwards sent a further letter to Freehills requesting an urgent response to the letter dated 21 May; that is annexure F. I do not need to read that to your Honour. Then this is said in paragraph 13:

PN120

To date, partial discovery only has been provided by the respondent. No affidavits have been filed by the respondent.

PN121

So as at today's date the second timetable directed by Wilcox J in the Federal Court has not been complied with, or completely complied with and there is no evidence on for the respondent, although there are affidavits on from the applicants, although his Honour has been informed that they are not complete because, until discovery is given our case really is not completed in the affidavit material. Then in 14, on information believed first that Mr Reardon is the Assistant National Secretary, advised the Commonwealth Bank in evidence in the Australian Industrial Relations Commission on May 2000, that the FSU v Adams case was pending.

PN122

Your Honour, the importance of that last matter is this: could I hand up to your Honour two documents? These have now been read in the Federal Court proceedings before Moore J and perhaps I could tender those together?

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, all right then. Any objection?

PN124

MR DOUGLAS: No, your Honour. Can they to be marked individually?

PN125

THE SENIOR DEPUTY PRESIDENT: Certainly, if you - - -

PN126

MR HAYLEN: I do not mind.

PN127

THE SENIOR DEPUTY PRESIDENT: I will mark them in order of date. The document entitled IF Special Update 4, dated 24 September 1997 issued by the bank I mark exhibit FSU4.

EXHIBIT #FSU4 DOCUMENT DATED 24/09/1997

PN128

THE SENIOR DEPUTY PRESIDENT: And the memorandum marked IF Special Update 5 issued by the Commonwealth Bank on 25 September 1997 I mark exhibit FSU5.

EXHIBIT #FSU5 MEMORANDUM DATED 25/09/1997

PN129

MR HAYLEN: The first document, FSU4, is shortly before the date when EDS was to take over the information technology services to the bank, which was 10 October 1007 and there had been proceedings in this Commission, and instituted by the FSU, primarily to seek two things: a further time for people to consider the offer from EDS and to obtain a recommendation that the offer include, from the bank, an option for the payment of redundancy. That came before Deputy President Drake, as she then was.

PN130

The Deputy President heard the parties I think in conference and on two occasions on following days, and declined to make any recommendation, I think noting that there was, at that very time, an extant bargaining period and what was being pressed by the FSU was not taken up by the Deputy President. The bank then reported that matter under the heading Industrial Relations Commission rejects FSU claims to its employees in the IF section; makes some references to what the Deputy President says and then in the second-last paragraph:

PN131

I am pleased to inform you that distraction has now been appropriately dealt with ...(reads)... receive your sign on bonus.

PN132

Then FSU 5 is the day when you had to sign on to begin on the 10th, and again, Mr Mulcahy says in the third paragraph:

PN133

Anyone who chooses to remain with the bank will retain their existing position ...(reads)... legal advice that any application -

PN134

note these words:

PN135

...any application to the Federal Court of Australia by the FSU with regards to the RR and R agreement ...(reads)... enhance your career development opportunities.

PN136

The point we want to make early is: at 25 September 1997 the bank was communicating with the employees who are the subject of this application and the applications in the Federal Court, that they had unequivocal legal advice that they were quite entitled not to pay redundancy. Now, Mr Reardon adds to that by saying in other proceedings, in May of 2000 when being cross-examined - - -

PN137

THE SENIOR DEPUTY PRESIDENT: Where does Mr Reardon say this?

PN138

MR HAYLEN: I am sorry, that is in the last paragraph of Mr Hendry's affidavit.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes, of course.

PN140

MR HAYLEN: He also - in cross-examination he also told the Commission and those representing the bank that the second case, the one for the 550-odd, was in the pipeline. Now, in the application there are references made to two cases: one is a decision of yours in relation to Westpac Banking on 9 November 2000 in print T3225, and the other one is a reference to a decision of Senior Deputy President Polites of 21 November 2000 in relation to EDS. EDS had made a blanket application to remove itself from the position of a type of transmittee under section 149(1)(d).

PN141

The point about both those cases was that they were taken in at least a timely fashion. In the Westpac case they sought to have the applicable award clarified so that people who signed the offer to join the outsourcer knew what their award position was and the Commission was asked, and I think you note, that you were put under some pressure to get this out quickly, so there was a very - - -

PN142

THE SENIOR DEPUTY PRESIDENT: Before the final decision was made by the individuals.

PN143

MR HAYLEN: Yes, they had a very short time in which to make their decision. So that was done at the time that the people were making their decision to sign on, and it just seems inconceivable that as at September 1997, the bank was not in the position to clarify the award or to make some application in relation to the award to put the position beyond doubt, but it did not do so. It does not do so till April of 2001 when the cases are ready for hearing in the Federal Court - down for hearing, listed, and the process at least on an evidentiary sense. In one case totally completed and the other case completed so far as the applicants are concerned.

PN144

It raises this issue: why was it that the bank did not make its application in a timely fashion? What is the reason for the delay? And, as I understand it - I do not understand there is any evidence from the bank but, certainly at this moment, in support of its application there is nothing that explains in the application the delay. The only thing that explains the delay is that at some time after October 2000 when the Adams' case was filed the bank may have had cause to revisit its legal advice as to its liability in the Federal Court, and decided at that point that it would be appropriate to commence these proceedings, but even then they knew in May of 2000 that that was in the pipeline.

PN145

It was filed in October of 2000, but this application is not filed until April of 2001. Again, what is the explanation for the delay? What is the explanation for the timing? There is no explanation given in the application. We say it is an open and fair inference that it is a tactical decision to commence these proceedings. The other matter that we eluded to on the last occasion, not just eluded to, we spoke about it on the last occasion on 26 April, is that during the course of the notice of motion, the directions hearing before Wilcox J, where he declined to adjourn the proceedings in the Federal Court, it was raised on behalf of the FSU that the bank was now putting two different propositions.

PN146

It was in the Federal Court still asserting that it had a defence, namely, the award did not apply to these people who left the Commonwealth Bank and joined EDS. In these proceedings it was, although acknowledging that position in the grounds, it also says: well, in the alternative, that is if we are wrong about that, we want to say that was not the intent of the 1990 redundancy provisions and it is unfair, because of the other things that we have done, and this variation should not now be made. And I asked then of the bank in those proceedings before Wilcox J: if the bank is now of the view that they are liable, if they would make that known, the hearing time in the Federal Court would be saved; that proceeding could then be the subject of some discussion and the focus could then shift to the Commission as to whether, or not, the variation would be made.

PN147

That suggestion was not taken up and it was asserted and affirmed that they still wished to argue, and their primary position in the Federal Court was that the award did not apply. The second aspect about it is this: in the two proceedings in the Federal Court there is no pleading that says the parties intended, in 1990 when they reached agreement about this R and R clause for both the award and for the unregistered agreement, they were both by agreement, they were both consent arrangements, nowhere is it pleaded in those two Federal Court proceedings, that the intention was that an outsourcing arrangement would not be covered by the redundancy clause.

PN148

Now, I did make this point on the last occasion. It is not an arbitrated decision. There is no ambiguity about the terms of the provision. The idea here and not in the Federal Court, it is argued that there is a failure to properly record the intention of the parties, is one totally disputed by the FSU. All you have, absent some intrinsic material undoubtedly about which there would be some debate as to its availability to the Commission, the Commission would be simply left with the words of the parties in a consent document and if their terms cover the situation then the situation leads to an award obligation, but it would be a curious and very significant omission in the Federal case if that issue of a failure to convey the real intent of the parties was not pleaded.

PN149

But over a number of years now, because the first case was filed I think in 1999, so for a number of years there has been a total failure to plead that matter, although it must have some relevance. to the Federal Court proceedings and is only pleaded here in the grounds in support of the variation application. The other matter that is of relevance in the history of the way this is developed is the making of the 1999 award. That was, I think, CBA2. I do not take you to it, but can I just give you this document? It is one document in addition to CBA2 and the second and third page are an extract from CBA2, and I tender those. It is the order of Senior Deputy President Drake.

PN150

THE SENIOR DEPUTY PRESIDENT: No objection, is there?

PN151

MR DOUGLAS: No, your Honour.

PN152

THE SENIOR DEPUTY PRESIDENT: The documents being a copy of the order issued by Senior Deputy President Drake on 21 August 1999 and an extract from - what is it from, Mr Haylen?

PN153

MR HAYLEN: The extract is from exhibit CBA2, the 1999 award.

PN154

THE SENIOR DEPUTY PRESIDENT: And an extract from the 1990 [sic] award I mark collectively exhibit FSU6.

EXHIBIT #FSU6 COPY OF ORDER BY SDP DRAKE DATED 21/08/1999 AND EXTRACT FROM 1990 AWARD

PN155

MR HAYLEN: That is 6, yes. Now, your Honour, the first document is an order dated 21 August '99, made by Senior Deputy President Drake. The first order is - the award is varied as follows: one, by deleting the award in its entirety and replacing it with the attached, so that is the whole new award:

PN156

(b) this order shall come into force from the first pay period to commence on, or after 13 April 1999 and shall remain in force for a period of four months.

PN157

So it continues in force now of, pursuant to the provisions of the Act. It is relevant to consider if I may for a moment - I just noticed, I think I have brought an older version of the Act, but I do not think these have changed? Section 146 and following - under section 146(1):

PN158

An award shall be expressed to come into force on a specified date.

PN159

So this award came into force on, or after 13 August 1999. Under subsection (2):

PN160

Unless the Commission is satisfied that there are exceptional circumstances, the day specified in the award for the purpose of subsection (1) shall not be earlier than the date of the award.

PN161

147:

PN162

An award shall specify the period for which the award is to continue in force.

PN163

It does so in paragraph (b) of the order, "four months", and in 148(1):

PN164

Subject to section 113 and any order of the Commission an award dealing with particular matters continues in force until a new award is made dealing with the same matters.

PN165

Now, we alluded to this on the last occasion. What has happened by the order, firstly, of 24 August 1999, is that the whole of the 1990 award which is being enforced by the FSU in the Federal Court, has been rescinded. That is the effect of the order. It only has existence because of the statutory provisions that allow it to be enforced within a period of six years of any provision having operation. That is the only way it continues in force. Under section 148(1), it ceased to be in force when a new award was made; that is the 1999 award.

PN166

THE SENIOR DEPUTY PRESIDENT: I note that the order says the award of 1990 was varied?

PN167

MR HAYLEN: And it is varied by deleting it in its entirety; that is the second part. Could I just take you then to the attachment, clause 4, on, it should be page 5 at the bottom, says:

PN168

The award comes into force on and from the first pay period to commence on, or after 1999 and will remain in force for a period of four months.

PN169

And then over the page - - -

PN170

THE SENIOR DEPUTY PRESIDENT: I presume 13 August is omitted from that clause?

PN171

MR HAYLEN: It looks like it is. Anyway, that is the order. We have clarified - - -

PN172

THE SENIOR DEPUTY PRESIDENT: That is the order. The order is clear enough.

PN173

MR HAYLEN: Yes.

PN174

THE SENIOR DEPUTY PRESIDENT: The document is not.

PN175

MR HAYLEN: In paragraph 5:

PN176

The award applies to the bank and the FSU in respect of employees up to and including MC level -

PN177

etcetera -

PN178

...employed by the bank. 6: This award will supersede all previous awards and orders of the Commission relating to employees ...(reads)... any such previous award, or order.

PN179

So a clear revocation of the 1990 award. Now, that leads to this difficulty: one, that you do not have to decide on this application, but I am now highlighting why, in support of our adjournment application, it is best for the Federal Court proceedings to continue and these proceedings to be adjourned. We say, firstly, this Commission would need to know whether the - and it will be part of our case to you - whether the redundancy provisions applied to the EDS contract in that circumstance, in 1997, because if we are wrong in that argument this variation simply is not needed. There would be no reason why the Commission would make the variation.

PN180

Secondly, there are difficulties with the - they are not just difficulties, they are almost fundamental problems with the application itself - it seeks the variation of a 1999 award which is simply not relevant. That award is not being enforced, or sued upon by the FSU and the employees in the Federal Court. It is the 1990 award that is being enforced. The 1990 award by clause 6 of the 1999 award no longer exists. You cannot alter the rights of the parties in the Federal Court by now altering the 1999 award which commences only on 30 August 1999. The further complication is the award variation, as I pointed out on the last occasion, also seeks to avoid payment under the award, or otherwise. Clearly, an attempt to obtain an order from the Commission nullifying the effect of an unregistered agreement, or a Common Law arrangement; one, clearly, that would have very, very grave jurisdictional difficulties, and putting it very modestly.

PN181

The other matter which does not seem to have been contemplated is that I understand, just recently, the 2001 EBA has been certified by the Commission. I do not have a copy of that with me, but it contains redundancy provisions superior to those in the 1990 award which is the issue the FSU and the employees are suing on in the Federal Court, but reflecting the higher standard of the 1990 unregistered agreement and pursuant to section 170LY, that newly-certified agreement will prevail over the 1990 award to the extent of any inconsistency with that award. So even if there was jurisdiction and all the other difficulties could be overcome that deal with this application, it would give no effective relief because of the existence of the 2000 EBA.

PN182

Now, I raise these because there is just a minefield of technical, legal, jurisdictional issues surrounding this application which appears to be, and we would suggest it is an open inference, a rushed - an ill-thought-out application designed to alleviate the bank's difficulty in their proceedings in the Federal Court. And putting aside even those general difficulties, because if the case is listed, all of those things have to be addressed; the resources of this organisation have to be expended not only on the enforcement proceedings in the Federal Court which are continuing, but also on these proceedings which will become complex and, I think, from your own knowledge, the state of the issue, this issue about redundancy between the parties is such that you could expect every point to be taken and every avenue of appeal to be pursued by the parties.

PN183

In the management of the litigation, considering the time-frames, the failure of the bank to make a timely application at least back in 1997 one would have thought, there is good sense, and it is fair to the respondent to this application that the Federal Court proceedings should proceed. That also impinges on the Commission's time and the resources of one of the parties. That raises questions of fairness to the union. It also raises this matter: now, I have said to you our application - our submission in these proceedings, if they are listed, is that we must know whether the award applies, or not. It just seems inconceivable that if the award does not apply that the Commission would be moved to retrospectively, in some way, 3_ years later, vary the award to take away a provision which, in fact, does not apply.

PN184

That question must be determined by the Federal Court. It is unavoidable. It is at the forefront of the issue between the parties before Moore J and Wilcox J. This Commission, of course, can make a decision in exercising its variation power, about the applicability of the award, but it could not authoritatively decide that; only the Federal Court could do that, because that is an exercise of judicial power. Could I hand to your Honour an extract from the Queen v Calder, ex parte the AWU? This is in [1983] HCA 35; 153 CLR 415. This deals with the old section 142A of the Conciliation and Arbitration Act.

PN185

Could I just ask you to look at the headnote on page 416? This was one of the numerous disputes between the BLF and the AWU and you can only get one of those orders, a representative rights order under 142A, if you had coverage. It was unlike 118A where you can actually change somebody's rights and give them a coverage that they did not have, or including that. This was a much more confined power. In the third line after the first numbered headnote per Acting Chief Justice then Mason, Brennan, Dean and Dawson JJs:

PN186

The Commission's power to make an order under section 142A(1) is dependent upon the existence of the jurisdictional fact ...(reads)... as part of the judicial power of the Commonwealth.

PN187

And then there is a reference about section 60; I do not need to take you to that. There is a short passage in the joint judgment of Mason and Brennan JJs, at 419, after the reference to the Commonwealth Rent Controller in the National Mutual Life case, their Honours say this:

PN188

The terms of section 142A(1) are quite explicit. The Commission is authorised to make an order ...(reads)... does not exercise the judicial power of the Commonwealth.

PN189

Murphy J said much the same - - -

PN190

THE SENIOR DEPUTY PRESIDENT: Well, if it helps you at all, Mr Haylen, you will get no argument from me that this body does not exercise the judicial power of the Commonwealth.

PN191

MR HAYLEN: Yes, I am sure that is right. Without reading it to you, there is a passage at the bottom of 423 in Murphy J, and also at the bottom of 427 to the same effect, going over to 428. We are not saying, by the way, that this is the same as a 142A order, but the point is this: it would be part - it will be part of our case when, and if this application proceeds, that the Commission must know what the obligation is under the existing award that is sought to be varied. That can only be authoritatively decided by the Federal Court and that very issue is now before the Federal Court. That is why it is appropriate, and it is fairer to the parties, which include the respondent here, that the steps taken to have that issue decided, which are now so very far advanced, be allowed to be completed before we embark on all that is involved in this case.

PN192

It means, firstly, if the bank succeeds in its case this Commission may not need to entertain this application at all. It is hard to see why it would be pursued? It would have no purpose. Their argument would have been upheld. The award, on their interpretation of it, would not apply to the circumstances. If, however, our argument is correct and there is an obligation, then that is a matter of significance for the Commission and the discretion is has to exercise, assuming all the other technical difficulties are overcome, of exercising its jurisdiction to vary the award to take away something that the parties had agreed to, even if the bank persuades you that they did not mean to agree to it. Now, so that, we say, is a very powerful authority in favour of our position.

PN193

The second case I wanted to direct your attention to is the case of Roberts and - if I can hand up an extract of this as well, v the General Motors Holden Employees Canteen Society case, this is reported in 25 FLR at 415 of the Full Court of the Australian Industrial Court, and it picks up this idea and applies it in an industrial context, of the old principle and notion of approbating and reprobating. Here, we say, what the bank has done for at least two years in the Federal Court now, has put a position that the award on its proper construction in relation to the clause dealing with redundancy, does not apply to the EDS service contract - does not apply.

PN194

It then, during the course of those proceedings being heard, comes here with an application that must have as one of it strongest foundation, that it does apply and it needs to be varied to reflect both fairness, equity and the real intent of the parties, and that, we say, fits the classic definition of approbation and reprobation, and this is what the Full Court had to say about it at page 420 - different context, but it is the principle that I am referring to here, in the second paragraph on 420:

PN195

The principle relied on in support of this submission is that referred to by Lord Russell ...(reads)... judgment which conferred the benefit.

PN196

Similarly, Master of the Rolls, Lord Evershed, in Kindersley, the bank case, said that:

PN197

The principle requires that the party in question is to be treated as having made an election ...(reads)... his present action is inconsistent.

PN198

Now, I am not saying, and I do not want to be construed as saying, that on the application of approbation and reprobation principle, that if - just on the application of that principle, this application could not be made, what I am saying about it is, that principle has application on this adjournment application saying "at the same time you cannot approbate and reprobate", you cannot be in two jurisdictions putting contrary positions. And that the Commission will allow the Federal Court cases to proceed and wait for their determination before proceeding with this application.

PN199

Now, I do not want to take a lot of time with these - the Commission deals day in and day out with applications for adjournment - I just want to put before you a series of cases and their observations which assist in the exercise of the discretion. It is often not talked about a great deal but there are a number of cases that have looked in some detail at the way in which -and a discretion to adjourn should be exercised. The first group of cases I wish to draw your attention to are cases that I would - perhaps I can just hand up this bundle - are cases which arise in the general law. Perhaps I should have done this before it came on? I apologise for that. There are four that I have just handed up. Your Honour, the first may be the last in your bundle, is the Court of Appeal of New South Wales in the case of Watson v Watson. This is (1968) 2 NSW Reports at 647. On page 648, Asprey J, at about line 25, says this:

PN200

The general rule is that when a case is brought on for trial by the proper process the plaintiff is entitled to have it heard and determined.

PN201

Can I just stop there for a moment? This case has not got to the stage where it was put on for trial. We all turned up for the first day of hearing and we made an application for adjournment. We have highlighted this right from the start and this is right at the very start of the process. Then his Honour continues:

PN202

However, a Court has an inherent power to adjourn any matter which comes before it -

PN203

a number of cases cited for that -

PN204

and an appellate Court ought to be very slow to interfere. It seldom does so.

PN205

Reference to Maxwell v Kew, a well-known case, an Evans v Bartlett -

PN206

It has been stated by a higher authority that when it appears to the appellate Court ...(reads)... will interfere with the judge's discretion.

PN207

That deals with the appeals:

PN208

Whilst it is the paramount duty to the Court to see that justice is done ...(reads)... parties to the litigation must be considered.

PN209

So it is not just a matter of here, as I understand in part what the applicant does, and the bank, it says, well, where the applicant - the Act says that you should speedily deal with matters that come into the list, there is a power and 111(1)(n) to adjourn; there is a general discretion and the Commission needs to take into account the rights of both the parties, not just the applicant, and that is why we say the things that we have pointed to earlier in my submission today and on the last occasion, are relevant to the way in which the discretion is exercised.

PN210

Could I ask you to look at Holmes Js judgment at 651? Between lines 45 and 50 his Honour there goes through the reasons given in support of the application and about line 47, 48:

PN211

No reason was given to his Honour or to us why some one, or more of those persons ...(reads)... when the case for the petitioner closed.

PN212

I only refer to that because it appears from those passages, and I do not read them all to you, that his Honour then looks at: well, what are the reasons given for this going forward? What is the material that supports it? We say here, against the applicant, what is the reason for this application being sought so late? Why is it made so late? And we are not informed, and the Commission is not informed. And then on the top of 652, the third line, the beginning of a new paragraph:

PN213

The principle is that it is a matter for the discretion of the trial judge whether or not to grant an adjournment ...(reads)... not according to whim or fancy.

PN214

The next case is that of Hempel v Moore, this is a judgment of Burchett J in (1986/7) 70 ALR 603, again, the context does not matter but can I just ask you to look at the top of 605 At the end of that first line his Honour says:

PN215

In the unreported decision of the Full Court of this Court, Sweeney, Pincus, Burchett JJs in Mudginberri and the AMIEU ...(reads)... waive various considerations of convenience, delay and justice.

PN216

Now, they are all the matters that we rely upon. The conduct of the proceedings in the Federal Court, the unexplained delay in this matter coming before the Commission, the technical difficulties of the application, the good and better use of the resources of both the respondent as well as the applicant, and the time of the Commission in a more orderly way listing this particular application. Now, the last two matters are judgments in the High Court. The first is Sali and SPC Limited. This is reported in (1993) 67 ALJ, 841.

PN217

This was a case very briefly where a party who had an appeal listed before the Full Court in Victoria, the Full Court of the Supreme Court, was not able to proceed and sent various people along to make adjournment applications but nobody had been briefed to run the case. And the Court, by all accounts, lost patience with the party and refused an adjournment even though that meant the appellant would be unrepresented and the case must fail. That was taken to the High Court. In the joint judgment of Brennan, Deane and McHugh JJs at page 483 in the second paragraph, just below line (d), their Honours say this:

PN218

In Maxwell and Keown, the English Court of Appeal held that although an appellant Court would be slow to interfere ...(reads)... justice can be done to another party in the action.

PN219

Now, we have put many ways in which there is an injustice to us: the stretching of our resources, the presumption - or the double dealing with the question of whether the redundancy applies when that matter can only be authoritatively determined by the Federal Court and the cases are about to be heard or one of them is substantially part-heard. Their Honours also say this, over at 844, from line G in the first column:

PN220

Marks J said it was a long standing practice of the Court that while it would do its best ...(reads)... the appellant did not want the appeal to go on.

PN221

Around about line E in the second column, their Honours then say about that remark:

PN222

There was a striking inconsistency between paragraph 6 of the affidavit of the appellant's solicitor ...(reads)... the inconsistency was not explained.

PN223

And then - so there is a lack of evidence. Over on the next page, 845, about line C, the first column:

PN224

No details were given as to the criteria for determining an appropriate Queens Counsel ...(reads)... was extremely vague concerning the attempts to obtain Senior Counsel.

PN225

And then over in the paragraph, the second column on 485, just about line B:

PN226

Having regard to the findings of the Full Court the appellant suffered no injustice ...(reads)... there was no warrant for granting any adjournment.

PN227

Now, we turn that around and use it against the applicants in this way and say it is an open inference on the history of this case that this has been lodged here for a tactical reason. And if that inference is open the Commission would not lend its hand in that cause and would adjourn these proceedings until the Federal Court proceedings are dealt with. The last one of these general cases, is the case of Queensland and J.L. Holdings Proprietary Limited. This is reported in [1997] HCA 1; (1997) 71 ALJR, 294.

PN228

This case is primarily about amendment and late amendment and the adjournment that will flow from allowing a late amendment and then this case, just broadly, the High Court said, look, we accept that in Sali we relied upon the case management principle to say, well, look, when the case was in the list an unmeritorious and tactical application for adjournment if refused does not cause an injustice. That case must be read in that context otherwise case management principles will not stop an adjournment being granted, because ultimately, even if there is some delay involved, the Court should hear what the parties have to say, even if an amendment causes an adjournment.

PN229

His Honour, Kirby J, in the pages from 304 following deal with a number of principles that are related both to the question of adjournment and the question of amendment and they have some relevance as considerations. Could I just briefly draw your attention to some of them. At page 304, in paragraph 3, his Honour says this - number 3, the second column:

PN230

Although some form of case management has always existed the role of judges in Australia ...(reads)... without benefit of commensurate increases in judicial numbers and resources.

PN231

And his Honour then goes on to deal with the experience elsewhere. Just on that point for a moment, we say this is a different case because it really a case management between jurisdictions and we say the orderly processing of this case requires it to wait in its line and it will be in fact assisted by - and the time of this Commission will be assisted by the determinations that the Federal Court will make and in circumstances where only they can authoritatively make those decisions.

PN232

Over on page 306 his Honour goes through a number of factors that might influence a Court in dealing with an application for amendment that will lead to an adjournment, and about the fifth line in the first column - six lines, perhaps:

PN233

Departure from a Court ordered time-table while it is relevant are not decisive ...(reads)... by natural persons or involving private citizens.

PN234

And then over on the next column, about line B or just two lines below that:

PN235

The longer the time the more reasonable it may be to expect that the parties or their lawyers ...(reads)... and the difficulty particularly in the case of a lengthy trial of securing early replacement dates.

PN236

Well, we do not have that problem here about replacing early dates. This case has only just come into the list and has tentatively fixed dates if this application otherwise does not succeed or our alternate application:

PN237

The extent to which a new issue would give rise to a substantial and new case in reply ...(reads)... of adhering to a firm, creditable trial date.

PN238

And we would point out here a firm and creditable process, one which has started and this application now seeks to disrupt. Now, those cases have general significance for the way in which a discretion for adjournment will be exercised. I have some examples of the exercise of the discretion in industrial cases or industrial tribunals, including this Commission and its forerunners. I do not need to take a great deal of time with those but just to point out a few relevant features. Again, could I hand up a bundle of those cases to your Honour.

PN239

The first is an extract from 83 IR 431, at 106, an unfair contract case in the New South Wales Commission. This extract is at page 441 where the parties had begun within days of each other applications under the Trade Practices Act in the Federal Court and in the Industrial Relations Court in New South Wales. Both parties wanted their own litigation to go first and Lehane had to deal with what should happen to the proceedings under the Trade Practices Act. In that first paragraph he sets out the dates when the proceedings had commenced in both jurisdictions. In the second paragraph he says this:

PN240

In each case the facts alleged and relied upon in support of the relief claimed is substantially the same ...(reads)... the circumstances in which those contracts came to an end.

PN241

Now, here the substratum of facts is the same before this Commission and the Federal Court, except to the extent that it is alleged that there is a failure of the intent of the parties to be reflected in the 1990 Award provisions.

PN242

THE SENIOR DEPUTY PRESIDENT: Before this Commission?

PN243

MR HAYLEN: That is before this Commission but not before the Federal Court. That is the only - seems to be the only real difference. And then in the next paragraph:

PN244

In short, then the applicants have commenced within a period of a few days, two proceedings -

PN245

that is not the same here and I have made that submission but here it was -

PN246

against the same respondents seeking to a large extent similar relief arising ...(reads)... the proceedings in the Commission may continue.

PN247

And then, on the bottom of the page:

PN248

The motion is strongly contested by the respondents. One matter does appear to be common ground between the parties, that is, that it is inappropriate that both proceedings should continue simultaneously.

PN249

In one respect you have got that here. The applicants here want to move the Federal Court to adjourn the Federal Court proceedings, that is resisted by us there; they want these proceedings to go ahead here and we resist it here. So that is the similarity. His Honour then says this, Lehane J, at the top of 443. He dealt with a proposition that was put - I should go back to 442, the last two lines:

PN250

The applicants opened through their Senior Counsel, Mr Gyles, with a bold proposition ...(reads)... given that it is undesirable in the interests of justice that both proceedings continue concurrently -

PN251

and we would say that is strongly so here -

PN252

whether the interests of justice required the claims to be dealt with first ...(reads)... which party bears the burden are unlikely to be determinative.

PN253

Well, we accept that we have got to show some reason why this should be adjourned and we do not repeat what we have already said. And then his Honour, at the rest of the page, is influenced by the fact that the State Commission had a more flexible jurisdiction to resolve the issue between the parties than the Court had, and although that was also first in time, it was its more flexible jurisdiction that tended to favour it going ahead rather than the Court proceedings. And then over on 444, in the third line, the beginning of a new paragraph after setting out an extract from a judgment:

PN254

But as his Lordship proceeds to point out the same considerations must demand that in some instances ...(reads)... the justice of the case require the matters to proceed first.

PN255

And then if I could skip the next paragraph:

PN256

In summary, the reasons which I have given indicate in my view that the applicants seek ...(reads)... the applicants should succeed on the substance of their motion.

PN257

Now, we say, apply it here, no real injustice to the applicant at all considering the delay they have occasioned themselves. A fundamental question which can only be authoritatively determined by the Federal Court is now within days of being able to be determined by the Federal Court and the proceedings here would be shortened by not having to have that debate and would be enhanced by having the determination of the Federal Court on a vital issue as well as the other matters we have taken you to.

PN258

The following three cases are extracts from decisions of members of - and I think of one Full Bench - of the Commission about circumstances where an adjournment has been granted. The first is Senior Deputy President Riordan of 10 May '93. This is print K7667. Here there are a number of parties - this was the United Fire Fighters Union Case - and it all turned about section 111(1)(a) and whether it was a valid enactment by the Commonwealth. Mr Guidice then of counsel had made an application that there should be an adjournment because that issue was to be heard in the High Court the following week, and in the 4th paragraph on the first page, Senior Deputy President Riordan said:

PN259

I am aware of the fact that included in those matters to proceed before his Honour McHugh J in the High Court ...(reads)... particularly having regard to the fact that the delay involved will be short.

PN260

Now, this is not a Full Court - this is not going to the High Court, but we have the Federal Court similarly poised and would say those views of his Honour and approach of his Honour is appropriate here. The second matter is the ALHMWU and Acacia Ridge Bakery and Others, a decision of Deputy President Williams of 29 March '93; it is print K7198. There was a history there of dispute between a number of persons in the industry.

PN261

His Honour was there dealing with a finding of dispute, and you will see that on the second page, in the paragraph just below the middle paragraph, he records that there were applications made by the SDA, the MWU and the Employers Bakeries Federation for an adjournment. They sought leave to intervene for the purposes of allowing the organisation to make submissions in respect of an adjournment. And again, on page 3, you will see that a second argument, in the second paragraph - I must say, Mr Guidice in those days appeared to have a subspecialty in adjournments - he has put a certain proposition on behalf of the employers:

PN262

Those employers are concerned in section 118 proceedings presently before Deputy President Watson, the future of which proceedings ...(reads)... I adjourned proceedings relating to a finding of dispute between some of the parties.

PN263

And then he sets out what he had earlier put and then comes to the conclusion on the following page that the case he had before him would be advanced by allowing the earlier case to be decided. So it was a legitimate consideration in granting an adjournment, and you will also note on page 4 in the third paragraph, just about the middle of the page, his Honour particularly refers to section 110(2)(c) enjoining the Commission to act according to equity, good conscience and the merits of the case, although he does put that in the context of what he had earlier done in relation to another participant in the general industry dispute.

PN264

The last matter is the Full Bench decision in the - they were appeals concerning the FSU and the insurance industry and dealing with superannuation. It is Predell 2286, a decision of 14 March 1994, a Full Bench comprising of Munro J, then Deputy President Harrison, and Commissioner Hodder. Briefly, without wanting to read all this to you, there had been issues raised at the National Wage Case about superannuation and the degree to which the Commission would become involved in making orders directing where superannuation money would be directed in the funds, there had been a call for a national conference.

PN265

These appeals raised directly the question of an order that deleted certain named funds and requiring the moneys to be directed to those named funds, and ultimately, at page 3 you will see, in the second paragraph - the ACTU intervened in this case - in the second paragraph on page 3 the Full Bench said:

PN266

We have considered the written submissions lodged by the ACTU, AIIA and the Commonwealth ...(reads)... until the outcome of a conference is known.

PN267

Now, to stop reading there. Two important things about that, there was no guarantee that the conference was going to have any ultimate bearing but the possibility was good enough and the Full Bench actually reversed it, unless there was special reasons for continuing they would not continue. Now, here the Federal Court in ruling on the applications must decide whether or not the redundancy provisions apply in the circumstances pleaded.

PN268

So there is at least certainty about that and that is the authoritative determination that we say will of assistance to the Commission if it holds its hand and waits for those decisions. Now, they are the more particular cases about how the adjournment power should be exercised. For those variety of considerations we have addressed them. Your Honour, what I do have, and I want to put this in the alternative so we know where we are going with this case, if our application for adjournment fails I have instructions that firstly the union - and I have only just received these instructions - the union will wish to file its own application seeking to retrospectively vary the award to increase the redundancy payment.

PN269

That is to take account of the difference between the award and the unregistered agreement under the 1990 Award. The second application we make in these proceedings if they are not adjourned is these. That pursuant to section 46, two questions should be referred to the Federal Court. We already have, in my submission, and do not need to refer the questions about the applicability of the award, but these questions arise against this background.

PN270

The variation, as we see it, for the deletion of an entitlement to the payment of redundancy given by the 1990 award, which is now rescinded, does so and attempts to do so by variation of the 1990 award. We say the exercise of that power would be contrary to the constitution in two ways. Section 51(35) of the constitution empowers Parliament to make laws in respect of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

PN271

A variation which necessarily involves the overturning of a settled, finalised and rescinded award provision is beyond power because it no longer is exercised for the prevention and settlement of an interstate industrial dispute, it is, in substance, an application to overturn an accrued and settled right, its purpose is not to settle a dispute but to avoid an accrued civil liability. Related to that point is that if the Commission made such an order it would be contrary to section 51(31) of the Constitution as it would involve the Commission making an order or award which overturned an accrued right on unjust terms. Those two concepts are interwoven.

PN272

We spoke on the last occasion about some of the novelties of this case, we have had time to more closely consider it and we say if nevertheless the adjournment application fails those two questions should be referred to the Federal Court. And in the Federal Court there would then have to be notices directed to the Attorneys-General throughout the country because it raises a constitutional matter. I have really summarised the matters I wanted to raise, can I say one final thing.

PN273

On the last occasion my friend made some reference to this application requiring an application under section - I think - 111(1)(g). I do not know how he develops that. We have not done so and we think it is unnecessary. If that is pursued I will deal with that in reply, but they are the submissions.

PN274

THE SENIOR DEPUTY PRESIDENT: Mr Douglas?

PN275

MR DOUGLAS: Your Honour, last time we were together the belief that I left with at least was that the two hours that were allotted today would be sufficient for both of us to deal with this matter.

PN276

THE SENIOR DEPUTY PRESIDENT: I had the same impression.

PN277

MR DOUGLAS: Your Honour, obviously, I am not going to finish in the next 20 minutes and some of the matters raised need to be dealt with in substance. I am aware that your Honour's time-table is tight, could I make this proposal; it is dependent on your Honour being able to give us an hour in, say, the week after next, preferably, say, on Monday week. What I would do, your Honour, is to file in the Commission - or with your Honour - and provide my learned friend with a copy of a written outline, not necessarily a fully expanded set of submissions but something in writing by, say, 4 pm next Thursday and then if your Honour could give us an hour some time on the following Monday, either first thing in the morning or after 4.15 in the afternoon, then that seems to me to be the most convenient way of dealing with the matter.

PN278

Otherwise, your Honour, I think I probably require some two-and-a-half hours at this time. Now, my learned friend, I know, because I have seen it before, is going to say, "I'm unavailable on Monday week." Well, your Honour, he does not have to be here when I speak to my written submissions and I would give him the opportunity of then replying in writing if he wishes and he can do so during the course of that week.

PN279

We would still, your Honour, comply with the 15 June deadline, regardless of that situation but in the circumstances, your Honour, we could not object, of course, to the union's position being put out a week if in fact your Honour does not grant the adjournment and I think, on recollection, I think the date was 29 July that they had to reply

PN280

THE SENIOR DEPUTY PRESIDENT: No, 6 July.

PN281

MR DOUGLAS: 6 July; well, if that could go out by a week, if those arrangements are suitable to your Honour. Maybe your Honour, it would be of some benefit, though, if I used the 20 minutes that is available in just - - -

PN282

THE SENIOR DEPUTY PRESIDENT: Yes, my next matter is 11.30.

PN283

MR DOUGLAS: Yes. Well, I understood we were here from 9 till 11.

PN284

THE SENIOR DEPUTY PRESIDENT: But you are correct in your assumption as to the time allocated to this matter.

PN285

MR DOUGLAS: And because of that, your Honour, I have made arrangements to be elsewhere at 11.30.

PN286

THE SENIOR DEPUTY PRESIDENT: Yes. No, I was quite clear on that, two hours you were allocated. My next matter happens to be 11.30 but, believe it or not, there are other things the Commission has to attend to.

PN287

MR DOUGLAS: Your Honour, I am more than happy to use the 20 minutes available because it may cut down the time later, but nevertheless, that is the proposal that I put. It seems to me to be a convenient way of doing it, giving my friend all of the rights that he needs, so of course it is subject to your Honour's availability.

PN288

THE SENIOR DEPUTY PRESIDENT: Well, the first thing I should do is find out Mr Haylen's attitude to that.

PN289

MR HAYLEN: Well, it appears that we are not going to finish.

PN290

THE SENIOR DEPUTY PRESIDENT: That can be taken as granted.

PN291

MR HAYLEN: Yes. I do not know how impressive my friend is about my availability but have you got something else in mind?

PN292

MR DOUGLAS: No. You just seem to have a fuller book than me.

PN293

THE SENIOR DEPUTY PRESIDENT: I can sit at 4.15, can I not, Steve?

PN294

MR HAYLEN: What day are we looking at?

PN295

THE SENIOR DEPUTY PRESIDENT: We are looking at 18 June. We will go off record while we are doing this.

OFF THE RECORD [10.46am]

RESUMED [10.50am]

PN296

THE SENIOR DEPUTY PRESIDENT: I issue the following directions for the further conduct of the matter and in so far as it involves the applications addressed this morning by Mr Haylen on behalf of the FSU, that is the adjournment application and the application for references and matters of law - questions of law to the Federal Court under section 146. One, the applicant is to complete an outline of submissions on these matters and file and serve them not later than 4 pm on Thursday, 14 June 2001.

PN297

Two, the matters just identified will be re-listed for completion of submissions at 4.15 pm on Monday, 18 June 2001. I note that in the event that neither of the applications are successful the directions issued on 25 May 2001 will be varied so that directions (ii) will now require the respondent to file and serve any witness statements and documents on which it proposes to rely in an outline of its contentions on or before 13 July 2001. And direction (2)(iii) will be varied to require the applicant to file and serve any witness statements or documents in contention on which it proposes to rely in reply on or before 20 July 2001. I believe that completes the directions I need to make. Mr Douglas?

PN298

MR DOUGLAS: Yes, thank you, your Honour. I deal with initially with one or two isolated matters. The first thing I would do, your Honour, is refer you to FSU5, which is the special update, dated 25 September 1997.

PN299

THE SENIOR DEPUTY PRESIDENT: Yes.

PN300

MR DOUGLAS: My friend sought to make use of the words in the paragraph that referred to the R and R agreement. You will notice, your Honour, in relation to Federal Court proceedings, this update - and because the other update does not refer to Federal Court proceedings - but this update refers to Federal Court proceedings in two respects only. Firstly, in relation to secondment, and that is the issue that is currently part-heard before the Federal Court.

PN301

THE SENIOR DEPUTY PRESIDENT: Before Moore J?

PN302

MR DOUGLAS: Moore J, yes. And those people are of no concern to our application, they fall outside the scope of our application which is currently before the Commission, secondees. The update, secondly, refers to Federal Court proceedings, and I quote, "with regards to the RR and R agreement." I ask your Honour to notice that no reference is made whatsoever to the banks obligations, whatever they might be, under the award existing at the time, the 1990 award.

PN303

Now, my friend's submission in relation to this update presumes that the award is included within the words, "with regards to the RR and R agreement", and that is not so and it cannot be so. So the legal advice referred to relates only to the RR and R agreement on the basis of what is contained in this update. Your Honour, I accept that there will be a debate during the course of the hearing of our application as to whether or not the 1999 CBA Award is in fact a variation of the 1990 award. We assert in the grounds that it is. I refer your Honour to FSU6. Of course this is an issue that cannot be decided in this adjournment debate. However, there are two sides to every story, your Honour.

PN304

THE SENIOR DEPUTY PRESIDENT: Just one moment, may I find FSU6 - oh, the order.

PN305

MR DOUGLAS: The order of Senior Deputy President Drake.

PN306

THE SENIOR DEPUTY PRESIDENT: I know what you are referring to.

PN307

MR DOUGLAS: Yes. Your Honour will notice the foundational dispute, the jurisdictional base for the 1999 CBA Award, the award that my learned friend says is a new award, being an award that totally replaced the 1990 award, is the dispute raised in 1983, C No 00506 of 1983. In fact, my recollection is that that was a dispute arising from a log of claims served by the ABOA, the predecessor of the FSU on what we call the private banks collectively; and I think there are about seven of them - six of them at that time.

PN308

And that award gave rise to what was the BOFA Award, Bank Officials Federal Award, and it bound a number of banks - I am sorry, it gave rise to Commonwealth Bank - I am sorry, I withdraw what I have said. That log of claims, like a log of claims that was served on the private banks, was served by the CBOA on the Commonwealth Bank and it gave rise to a dispute which has been used ever since for award making purposes in relation to the Commonwealth Bank.

PN309

And the first award that was made with respect to the Commonwealth Bank, in a sense followed many of the traditional aspects of the Bank Officials Federal Award. Now, your Honour, whether or not the 1999 Award is a variation of the 1990 Award depends on the reality of what actually occurred and not necessarily what is in the wording of this order. We say, your Honour, that we can demonstrate that the 1990 [sic] Award is in fact, and must be, a variation of the 1990 Award lest there be no jurisdiction base for it, because there has been no dispute created since 1983 that would be supportive of the 1999 Award, other than the dispute that is referred to in this order.

PN310

Now, your Honour, we will, in the proceedings on our application say on the one hand this is why the 1999 Award is in fact a variation of the 1990 Award and therefore why the variation of the 1999 Award, as we seek in clause 15.6, the clause to be inserted, will achieve the purpose we aim for. On the other hand we will say if we are wrong about that the substance of our application is this, and it is a merit question. Should persons, 1400 we will say persons, who were employed by the Commonwealth Bank in October 1997 or thereabouts being those persons who resigned employment from the CBA and took up employment offers with EDS Services be entitled to retrenchment pay.

PN311

Now, we say as a matter of merit the answer to that question should be no; there should be no such entitlement. And we say that the Commission has the jurisdictional ability and the ambit to either vary the 1999 Award by inserting our proposed clause 15.6 if in fact the 1999 Award is a variation of the 1990 Award, or alternatively, make a stand-alone award or order to the same effect. Either way, the jurisdictional base and the ambit derives from the 1983 dispute created by the CBOA when it served that log of claims that gave rise to the dispute which was referred to in her Honour's order. I ask the Commission to note that section 114 of the Act says this:

PN312

The fact that an award or order has been made for the settlement of an industrial dispute ...(reads)... further industrial dispute between the parties -

PN313

etcetera. So there is within the Act a provision which recognises the Commission's ability, either in accordance with section 114 or section 113(2) to make an award or order, either variation or a stand-alone award or order, which says that persons who resign from the Commonwealth Bank and joined EDS consequent upon the contract, the IT contract entered into between EDS Australia and the CBA, shall not be entitled to retrenchment pay.

PN314

Now, the Commission, as currently constituted, as was confirmed, the situation that we all knew by the High Court many years ago in Clarkson's case, is bound to follow principles established by Full Benches that are relevant. It will be fundamental, significant to the merit of our application to rely on the first TCR decision of 2 August 1984, which is in print F6230, and I provide your Honour with a copy.

PN315

MR HAYLEN: I think it is in 8 IR.

PN316

MR DOUGLAS: Yes, I am giving you that. The Full Bench was the President, Madden J, and Commissioner Brown, and as they said, the first few words of the decision:

PN317

This has been a case of mammoth proportions.

PN318

And I tell your Honour, never a truer word was said. It dealt with a whole range of subject matters relating to security of employment, redundancy payment being one. And along the way it established a number of principles which pertain to this day, principles which guide members of the Commission in relation to award provisions on redundancy - and of course the Commission is now confined by section 89A with respect to certain matters. Redundancy pay, of course, being an allowable matter in paragraph (m).

PN319

On page 75 of the copy of the decision that your Honour has got, the Full Bench did two things which are very significant so far as our current application is concerned. Firstly, in the last paragraph it recognised the ability in employers to seek exemption from the obligations to pay redundancy pay where they obtain - this is in the second-last paragraph - acceptable alternative employment. Senior Deputy President Polites in the 149 matter referred to in the grounds has already found that the employment at EDS Services was acceptable alternative employment.

PN320

That is a principle that stands, that the Commission recognises in relation to redundancy pay - and your Honour is obliged to follow this principle - that an employer may apply to be exempted from the obligation to pay redundancy payment where the employees obtained acceptable alternative employment. The second principle, which is in the next paragraph, is also most significant, your Honour. Around about September 1997, before the employees actually transitioned - 1400 employees transitioned from the CBA to EDS Services, the union was saying: this is going to be a transmission of part of the CBA's business to EDS and as a consequence the 1990 CBA Award would apply.

PN321

That allegation was put in a formal way in the 149 proceedings before Senior Deputy President Polites. The FCU said that it was its view, and it had always been its view, that part of the CBA's business had transmitted to EDS Australia as a result of the contract, IT contract, and that meant, by the operation of section 149(1)(d) that the CBA Award had gone across, at least in relation to the 1400 people who had taken up employment offers, and that therefore, your Honour, Senior Deputy President Polites, you should not - was put in writing - make the blanket 140 order because it is appropriate that the award that applied to these people when they were at the Commonwealth Bank should continue to apply to them now that they are at EDS Services.

PN322

And his Honour went on and made the blanket order which said even if there was transmission the award is not there. Now, in August 1984, the Full Bench said, in the third last line - fourth last line:

PN323

We would make it clear that we do not envisage severance payments being made in cases of succession, assignment or transmission of a business.

PN324

A pretty decisive statement; and then at the beginning of the first complete paragraph on the following page, they say:

PN325

In both cases, that is, in the cases of succession, assignment or transmission and in the case of superannuation ...(reads)... on such terms as the Commission seems just.

PN326

Now, we say that the Commission as currently constituted is bound by that principle, that it stands as a principle of the Commission in relation to the payment or non-payment of severance pay and that the reality is here that if the CBA - if the union was right as to its allegation of transmission - and we will never know now because the 149(1) order is in place - but if it was right about its allegation of transmission then it is as clear as a bell that the Commission would only have one option open to it, and that is, to entertain an application by the CBA for relief from the obligations to pay redundancy pay to these employees.

PN327

Now, under both principles, we can come to this Commission to put and seek what we are doing, and the union, by its application for an adjournment, seeks to deny us that ability. I will expand in my written outline, your Honour, why it is we say that the Commission does not have power under section 111(1)(m), the adjournment power, does not have power to refrain from the further hearing of a matter, be it an industrial dispute or a matter that is properly before it pursuant to section 113(2).

PN328

Now, the substance of what we seek is before the Commission either because it is there inherently in the 1983 dispute, and we are seeking a further settlement of that dispute; or it is there because we have the capacity to seek a variation of the 1990 Award to give us the result we want. We say that we have a right to put our case on that matter, recognised by the TCR Full Bench decision, and that that right cannot be denied by the use of section 111(1)(m).

PN329

The High Court has said, I suggest, and I think it was in the Queensland Electricity case, that section 111(1)(g) is the only power that allows the Commission to refrain from dealing with a matter in an orderly way before it comes before it. Section 111(1)(g)(iii) in the circumstances of this case is the power to refrain from settling a dispute or dealing with a matter.

PN330

The Commission does not have, in my submission, the authority in section 111(1)(m) to bring about a refraining in circumstances where section 111(1)(g) clearly requires that there be - that a public interest test be satisfied if the Commission is to so refrain. I will expand on that in writing, your Honour, and speak to that matter further but I thought that brief opening may be of assistance to your Honour.

PN331

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn these proceedings in accordance with the arrangements that have already been announced. I adjourn the Commission until 11.30.

ADJOURNED ACCORDINGLY [11.15am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 AFFIDAVIT OF J. HENDRY DATED 07/06/2001 PN104
EXHIBIT #FSU2 NOTICE OF MOTION DATED 10/04/2001 PN108
EXHIBIT #FSU3 NOTICE OF MOTION DATED 12/04/2001 AND AFFIDAVIT OF J. HENDRY PN113
EXHIBIT #FSU4 DOCUMENT DATED 24/09/1997 PN128
EXHIBIT #FSU5 MEMORANDUM DATED 25/09/1997 PN129
EXHIBIT #FSU6 COPY OF ORDER BY SDP DRAKE DATED 21/08/1999 AND EXTRACT FROM 1990 AWARD PN155