C3745/500, Transcript of Proceedings [2001] AIRCTrans 1601 (16 July 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8187
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER SIMMONDS

C No 37455 of 2000

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by G and K O'Connor for the
making of an award re Federal Meat
Industry (Processing) (G and K O'Connor
Proprietary Limited - Roping-in) Award 2000

MELBOURNE

10.32 AM, FRIDAY, 29 JUNE 2001

Continued from 28.6.01

PN3187

SENIOR DEPUTY PRESIDENT POLITES: Yes, Mr Rothman.

PN3188

MR ROTHMAN: Thank you, your Honour. At the break I had taken your Honours and Commissioner to the terms of the transitional provisions relating to the making of the 1998 Act, the making of the 1993 Act and the making of the 1996 Act. I will use the years because it is just the easiest way to do it. And made the point that what is clear is that the legislature has deliberately embarked upon a course different from that involved in the 1998 Act. I make no criticism of that but the 1998 Act, just to remind the members of the Commission, was an Act which basically said any certified agreement under the Conciliation and Arbitration Act became a certified agreement under the Industrial Relations Act.

PN3189

That was deliberately avoided in the case of the 1993 and 1996 Acts and they embarked upon a course with a very detailed and prescriptive means by which certified agreements that were reached under the '92 Act and the - the pre-'93 Act and the post-'93 Act, how they would be treated post the making of the amendments. And in each case they chose the course that, but for some minor exceptions, the terms of the Act as it then applied would continue to give effect to the certified agreements that then applied. So that it can't be said in any way, shape or form as, with respect, my learned friend has said, that this is just some oversight.

PN3190

It is a deliberate course of conduct that the legislature has embarked upon and it is a deliberate course of conduct which involves consistency with the approach said to be adopted in the second reading speech, namely, that there won't be, arising out of the making of the bills, any reduction in wages whether by award or by agreement. Now, having said that, your Honour, the issue comes, as I have taken the Commission to section 89A and I know the Commission is now, was before I started, and is now probably sick of it, but the position in terms of 89A is - and I have put a submission relating to the effect of section 89A on the requirement of the Commission to determine what it is it is actually dealing with and whether that is a dispute.

PN3191

The second aspect is what effect the section 89A has on the orders and awards that the Commission can make. Now, I took the Commission to the terms of the actual award and had told the Commission that the effect of the judgment thus far of the Federal Court and in particular the judgment of Conti J was to the effect that the FMIPA did not apply because of the operation of the certified agreement and but for the operation of the certified agreement - perhaps I shouldn't use that term - but for the operation of the '92 agreement the FMIPA would be applying now.

PN3192

So that when one goes to the terms of the application of the award that is sought by the employer one sees that the only operative part of the provision for the award is clause 5 or else replacement of the old certified agreement. Now, there are a number of aspects to this. Firstly, is the question of what power the Commission has to make an award in terms of clause 5 and, secondly, there is the issue of - and I mean by that vis a vis the operation of the Act generally and the second is what effect that has in relation to section 89A.

PN3193

Now, whether or not an award operates pursuant to the terms of section 148 is a question of law and it is a question of ..... construction. The Commission has no function under section 148 except to the extent that there is a subjection at the outset of section 148. Section 148 operates on its own force and effect. If the Commission makes an award which deals with the same subject matters - new award which deals with the same subject matters, etcetera, then it discontinues in operation an award.

PN3194

Now, section 148 does not entitle the Commission to make an award on its face which says: This award will operate pursuant to section 148 to discontinue an operation of some other award. That is not an award that would fit 148.

PN3195

SENIOR DEPUTY PRESIDENT POLITES: Why wouldn't 148 authorise the making of an order saying that it won't continue to influence - - -

PN3196

MR ROTHMAN: Well, your Honour - - -

PN3197

SENIOR DEPUTY PRESIDENT POLITES: - - - in the same way as 149 authorises an order about respondency?

PN3198

MR ROTHMAN: 148 would authorise the making of an order which limited the operation of section 148. In my respectful submission 148 does not allow an order to be made in those terms ex post facto, that is, after the event. You could make an order at the time of the award or indeed that it discontinue after a certain period of time perhaps but you couldn't make an award or an order relating to section 148 in circumstances where you were dealing with an award or an order that no longer could be made.

PN3199

In other words, perhaps I put this badly and I apologise for that. The section 148 that now operates is section 148 of the Industrial Relations Act 1992 not section 148 of the Workplace Relations Act. Because section 148 of the Industrial Relations Act 1992 is the section which continues the 1992 agreement in force. So the difficulty in a number of respects is the problems associated with the implementation of section 89A on the one hand in the Workplace Relations Act which, on its face, purports to deal or limit the arbitral powers of the Commission, or arbitral jurisdiction of the Commission in - - -

PN3200

SENIOR DEPUTY PRESIDENT POLITES: But that wouldn't operate in relation to section 148 of the Industrial Relations Act.

PN3201

MR ROTHMAN: Well, I am not sure that it doesn't, your Honour.

PN3202

SENIOR DEPUTY PRESIDENT POLITES: Well, why would it?

PN3203

MR ROTHMAN: Why wouldn't it?

PN3204

SENIOR DEPUTY PRESIDENT POLITES: Because the Commission doesn't derive its jurisdiction from the provisions of the Workplace Relations Act at all if it is exercising that power.

PN3205

MR ROTHMAN: Well, that is an argument with which I am happy to deal but on its face section 89A prescribes it for the following purposes:

PN3206

An industrial dispute is taken to include only matters covered by subsections 2 and 3. Dealing with an industrial dispute, etcetera. Preventing an industrial dispute and maintaining the settlement of an industrial dispute.

PN3207

That isn't limited with respect to dealing with it under the Workplace Relations Act, that is number 1. Number 2, section 89A was not put in place by schedule 8 of the Workplace Relations and Other Legislation Amendment Act. So it is not a section which doesn't apply to certified agreements made prior to the 1996 Act and, thirdly, it is in the general sense a limitation on the power to arbitrate that is the subject matter for arbitration. It is not a limitation on - and this may be the first point said a different way - it is not a limitation on the arbitration under a particular Act and 89A refers back to section 29 which sets out the functions of the Commission.

PN3208

89A can't be taken out of this Act and said - I withdraw that. It can't be said that you can - well, let me put it this way. If what your Honour is says is correct, then the Commission in relation to certified agreements made prior to 1996 could continue the regime of paid rates awards by simply varying the agreements.

PN3209

SENIOR DEPUTY PRESIDENT POLITES: Well, why couldn't it if this whole analysis is correct? I mean, the end point of your argument is that the only way one can deal with the 1992 award is under the provisions of the Industrial Relations Act as at the time it was certified. Now, if that be the end point of your argument, then why can it only be dealt with in terms of setting it aside or not setting it aside, why can't it be dealt with in any other way under the provisions of that Act?

PN3210

MR ROTHMAN: Because, your Honour, what is saved is not the entirety of the Act under the transitional provisions, what is saved is that part of the Act that relates to the effect of the certified agreement. So that what you can do under the 1992 Act is not everything, it is only everything to do with the effect of the '92 certified agreement. So that you could terminate it under the '92 Act and those provisions continue to apply. You may be able to vary it and set it aside under the 1992 Act, query whether that is different, but you can't then take sections of - and 178 would continue to apply and the courts have so held because 178 of the Industrial Relations Act is the section which makes the certified agreement enforceable. But, your Honour, having said that, you - - -

PN3211

SENIOR DEPUTY PRESIDENT POLITES: But why wouldn't 148? 148 clearly applies.

PN3212

MR ROTHMAN: Yes, your Honour, 148 of the 1992 Act continues to apply.

PN3213

SENIOR DEPUTY PRESIDENT POLITES: And does that not - my recollection, correct me if I am wrong about this - my recollection is that paragraph 1 of that section is the same as it presently is.

PN3214

MR ROTHMAN: It is, your Honour, yes.

PN3215

SENIOR DEPUTY PRESIDENT POLITES: Why does that not vest the Commission with a jurisdiction uninhibited by 89A to set aside that - well, not to set aside, to provide that it doesn't prevail or doesn't continue?

PN3216

MR ROTHMAN: Well, your Honour - - -

PN3217

SENIOR DEPUTY PRESIDENT POLITES: I mean, not that that is the application before us, I don't think. In fact, I don't think, I know it is not the application.

PN3218

MR ROTHMAN: That is right, your Honour. There is - I haven't dealt with what powers the Commission would be able to deal with under the Industrial Relations Act because that was an issue that was disavowed by the applicants because of the different objects and the different procedures. But 148, in terms of its continuation in effect, it may allow that, there is no doubt about that, it may allow it. But one would then have to look at the other provisions of the Act and whether there was express provisions and general provisions and whether the express are the Queen v Wallace type arguments.

PN3219

And the Commission would need to look at all of that before one came to the view that you could set it aside or discontinue it in operation. Make an order if you like, being the subjection in 148(1) under the 1992 Act without having regard to the provisions of 134M or 134N or the like. In fact, 148(1) of the 1992 Act applies pursuant to the provisions of section 134J of that Act and you would - it is a nice question as to which of those sections you would be working under but it matters not for your Honour's question - if your Honour is asking me the question: Would 148 apply? That is, 148 of the 1992 Act apply? The answer is: Yes.

PN3220

If your Honour is asking me the question: Does that mean that an order that fits within the subjection in the first part of 148 could be made? The answer to that is: Yes. Whether this is such an order is a different question and I am not dealing with that second question. And if your Honour is asking me whether you could set aside or terminate under the 1992 Act, well, the answer is undoubtedly: Yes. My point, simply, is that the application that is currently made under the Workplace Relations Act and which disavows an operation under the 1992 Industrial Relations Act isn't an order which under the Workplace Relations Act you can make.

PN3221

Now, that is not to say that this order could never be made under different Acts but then the Commission would be exercising a different discretion on a different basis and wholly different public interest considerations will apply and wholly different matters that the Commission would be required to take into account would not be taken into account in the exercise of the jurisdiction under this Act.

PN3222

Under the Workplace Relations Act an order of this kind, of necessity, deals with matters that are non-allowable matters. There are significant non-allowable matters in - so regardless of whether there is jurisdiction to deal with a dispute at all to make the award, clause 5 of the award, of necessity, deals with non-allowable matters. It deals with all of the matters that are contained in the 1992 agreement and they are, inter alia, non-allowable matters. They include tallies, they include a variety of matters which I now don't need to go into. But the point I make is that, as my learned friend rightly says, following the decision in Telstra v ..... , the certified agreement is incapable of simplification under items 49, 50 and 51.

PN3223

And prerogative relief issued in Telstra v ..... for the reason that items 49, 50 and 51 did not apply to that certified agreement but the question that must be asked is why it was necessary to have items 49, 50 and 51 in circumstances where there was otherwise provisions in the Act relating to the simplifications of awards. The fact is that once one puts section 89A into the Act the Commission is just as incapable, absent the operation of 49, 50 and 51, is just as incapable of taking matters out as it is of putting them in because taking them out is dealing with a matter that is the subject of the industrial dispute.

PN3224

So that in terms of section 89A, because the Commission - because it doesn't say what is sometimes suggested, that is, that these are the things that you can include in an award and otherwise limit the power of the Commission - because it doesn't say that, the Commission is dealing with an industrial dispute that for the purposes of the arbitration, and I am leaving aside the argument earlier made, but for the purpose of the arbitration does not include those matters and it has no power, no jurisdiction to vary the award or vary any award or any industrial dispute in relation to those powers.

PN3225

So while section 89A operates, section 89A would prohibit the making of an award varying either in whole or in part or deleting in whole or in part a non-allowable matter. That is why items 49, 50 and 51 were necessary. That is why it was necessary to put into the transitional provisions a whole scheme of operation giving the Commission an independent jurisdiction to delete from awards matters that were otherwise non-allowable and for which, in general circumstances, it no longer had cognisance.

PN3226

Now, as put, the effect of the award in question is not, in truth, the making of a safety net award but for termination of the 1992 agreement. I have taken the Commission to the '92 Act and to the provisions which related to the termination of agreements. Your Honour has drawn my attention to section 148. For the purpose of the record 148(1) in the '92 Act provided:

PN3227

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.

PN3228

So it is in precisely the same terms. The other provisions that are relevant are section 113 of the 1992 Act:

PN3229

The Commission may set aside an award or any of the terms of an award under subsection (1).

PN3230

Under subsection (2):

PN3231

The Commission may and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty vary an award.

PN3232

And those are the provisions relating to 113. As to certified agreements, those provisions are contained in 134 - perhaps I should do it differently. 134J make section 148 operate on a certified agreement under that Act after the expiry of the nominal period of the agreement. Section 134L provides for the effect of certified agreements during the period of operation. 134N provides that:

PN3233

At any time when a certified agreement is in force -

PN3234

and I emphasise here that "in force" of course includes both the period of the operation and the period beyond the operation -

PN3235

a Full Bench may review the operation of the agreement after giving the parties to the agreement an opportunity to be heard and may do so under subsection (2) of its own initiative and on application by an organisation or person bound.

PN3236

And by subsection (3) there are then questions before the Full Bench as to the fairness or otherwise for the contrariness to public interest and in certain circumstances it may order that:

PN3237

...may, by order, terminate the agreement, accept undertakings or permit the parties to vary the agreement.

PN3238

And I don't read the remainder and likewise, under 134N, certified agreements may be terminated by the parties. So there are very specific provisions relating to the variation of certified agreements under Division 3A, I think it is - yes, Division 3A of Part VI of the 1992 Act and they operate in conjunction with section 113 of that Act and indeed section 111 of that Act which deals with the Commission's power to vary, revoke or set aside.

PN3239

So that there are specific provisions which the legislature continued in force for deliberate and for their own reasons but those reasons are clearly deliberate. They have, in their wisdom, decided not to treat them in the same way as the 1988 provisions. That is, to include all certified agreements as certified agreements under the 1993 to 1996 Act. And likewise in relation to the 1993 to 1996 Act there were specific provisions for the termination of certified agreements for their variation and the like.

PN3240

And, again, in relation to WROLA, that is, the Workplace Relations and Other Legislation Amendment Act, 1996 amendments, a deliberate and precise scheme for dealing with certified agreements that existed prior to 31 December 1996 has been implemented and, again, they have not been - deliberately they have not been treated as if they were certified agreements for the purpose of the Workplace Relations Act. Now, that is a deliberate course of conduct undertaken by the legislature which shows, in our respectful submission, clearly that the Workplace Relations Act 1996 was not intended to displace in any way the provisions of the 1992 Act insofar as they were continued in force to give effect to the 1992 agreements.

PN3241

And the specific provisions that are contained in the legislation as they continue to operate would preclude, in our respectful submission, both as a matter of jurisdiction and as a matter of discretion, that is, if you are against me on jurisdiction, even as a matter of discretion, the deliberate course of conduct that is engaged in by the legislature to cotton wool the 1992 agreements and have only the 1992 Act apply to them is something which is a matter of discretion this Commission ought take into account in dealing with the application to put in clause 5 of the award which is now sought. Indeed, indeed, in our respectful submission, absent clause 5 the Commission would not make the award at all.

PN3242

I have reminded the Commission that the applicants before the Commission disavow the use of the Industrial Relations Act in terms of this application and disavow the use of section 113 of the Industrial Relations Act and I don't read it. I have taken the Commission to the second reading speech to the Workplace Relations and Other Legislation Amendment Act and in doing so reminded the Commission of the stated object of the government in introducing the bill that the bill was not to be used to reduce wages whether by agreement or otherwise.

PN3243

One then comes back to the situation of what has occurred post the judgment of Conti J. The situation is that it is now beyond doubt that the applicant employer has been in breach of the award since November 1999. It has been told by a Full Court and by a single judge that - probably the reverse order to normal - that the 1992 agreement has applied. It has quite deliberately and intentionally to the extent that it is not tortologist and without regard, in our respectful submission, to the consequences both in industrial relations and otherwise declined to follow the terms of the 1992 agreement.

PN3244

It has altered unilaterally the terms and conditions of employment of its employers in a way which is not countenanced by any Act, by any award or by any provision of any order of this Commission. Now, my learned friend has said in the course of his argument, that the employer, O'Connors, have acted reasonably, and their argument is reasonable in relation to the application of the FMIPA.

[11.00am]

PN3245

If the Commission pleases, what my friend has failed to differentiate between is the difference between the reasonableness of an argument that a safety net award applies and the reasonableness of conduct which applies unilaterally - the wage rates and conditions in that safety to employees who were earning more. It is, in my respectful submission, contrary to the history and direction of this Commission or its predecessors that the making of a safety net award would be used in any way for the purpose of reducing actual rates of pay and conditions of employment. A safety net, as the term implies, is just that. It is an award which is intended to prescribe minimum below which employers cannot pay.

PN3246

It is not an award which is intended, when it is made, to reduce wages currently being paid. These are wages and conditions which, on the evidence adduced in this Commission in other proceedings before Boulton J, were described by the employer as inappropriate and immoral if they were applied to the workplace. Yet there has been no - in no way is it suggested that there is any order or has been any order of this Commission that would countenance the proposition that wage rates and conditions of employment would be lowered. Now my learned friend has pointed to the statements by Boulton J in the 127 order and I have taken the Commission to it.

PN3247

I don't wish to go over it but the reality is that nothing in that decision countenanced the proposition that what was currently being paid ought to be reduced. And the employer comes along to this Commission in those circumstances with little - with no evidence and with little to say save this. The Courts have held that we are not currently bound by the safety net award. We are currently bound by the '92 agreement, while the '92 agreement stays in force we won't be bound by the safety net therefore make this award. Now what that is is an invitation for the Commission to reduce wages and to make an order to reduce wages not reduce that which is the minimum wage but reduce wages that are agreed.

PN3248

Now my learned friends have said the objects of this Act are such that a safety net ought be made. The objects of this Act are that parties agree on matters and stick to their agreement. That is not only an object of this Act it is an object of arbitration that has existed even for as long as I can remember. And it is, with respect, just inappropriate for a party to come before the Commission and say we made an agreement, we made an agreement for all the reasons that we gave because it was an extraordinary increase in productivity, it was an extraordinary improvement on the conditions that applied.

PN3249

We have applied that agreement, we have increased the agreement, we have asked the employers - we have demanded that the employers be bound by the agreement in their contracts but we now come along and say look, it no longer suits us to have this agreement. We don't say why. We don't say we are unprofitable, there is no evidence of that. We don't say it is inefficient, there is no evidence of that. We don't say we are uncompetitive, there is no evidence of that. It is just we don't want it and because we don't want it you should take it away. Now, your Honour, with respect, the '92 agreements were implemented in circumstances where that sort of thing just didn't happen.

PN3250

If the parties want a certified agreement to take its place or they want AWAs to take their place they have made AWAs. They have made AWAs with the vast bulk of the people at the workplace. I make no comment now about the duress that may have been implied. They have the AWAs and they can make them. So why then do they want the safety net award? The answer is simply they don't want a safety net award as the Commission found in its jurisdictional argument. They don't actually want the safety net award. What they want is a termination of the '92 agreement but they don't come here and say we want to terminate the '92 agreement in accordance with the provisions that allow for it.

PN3251

They say we want the Commission to make an award which is a safety net and the reason we want you to make that award is to achieve an indirect purpose for which we could make another application and for which the discretion of this Commission would be exercised in a fundamentally different manner. And that is classic - that is classic abuse of process in the Courts. That is seeking litigation and orders not for the purpose of getting the orders but for the indirect purpose unrelated to the nature of the orders that are sought.

PN3252

Can I turn very briefly - the Commission as presently constituted is - and I don't say this in any way other than in a manner that is intended to obviate the need to take the Commission through reams of material and cases - but the Commission as presently constituted is a Commission significantly experienced in the workings of the Act and its operation. And the Commission is aware of the provisions of section 111(1)(g). The Commission has determined in relation to the summonses that certain matters otherwise sought to be dealt with are not relevant to the exercise of the Commission's discretion and I don't now deal with them.

PN3253

The Commission has also - is also aware that the application that has been made by my clients is an application under paragraphs 3, 4 and 5 of - sub-paragraphs 3, 4 and 5 of paragraph G of sub-section (1) of section 111. Those deal with - they were proceedings not necessarily desirable in the public interest. A party engaging in conduct that is hindering the settlement of the industrial dispute or another industrial dispute and that the party to the dispute has breached an award or order of the Commission. Well, in relation to (v)A there can be no doubt now that the party to the industrial dispute, that being any proceedings under sub-section (2), has breached an award or order of the Commission.

PN3254

SENIOR DEPUTY PRESIDENT POLITES: Has it?

PN3255

MR ROTHMAN: Yes, your Honour. That is the finding of - that is the necessary result of the finding of Conti, J.

PN3256

SENIOR DEPUTY PRESIDENT POLITES: But is it an award or order of the Commission?

PN3257

MR ROTHMAN: Well, if it is not an award or order of the Commission we can all go home, your Honour.

PN3258

SENIOR DEPUTY PRESIDENT POLITES: Well, it is an award or order made under the 1992 Act.

PN3259

MR ROTHMAN: Yes, your Honour.

PN3260

SENIOR DEPUTY PRESIDENT POLITES: It is not defined as an award or order under this Act anywhere.

PN3261

MR ROTHMAN: Well, I accept that, your Honour. It is not an award or order under this Act.

PN3262

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN3263

MR ROTHMAN: Well, I withdraw that. It is not an award or order - no, it is not an award or order under this Act but it is an award or order of the Commission. It is an order of the Commission. Order isn't defined, your Honour.

PN3264

SENIOR DEPUTY PRESIDENT POLITES: No, it isn't but award is.

PN3265

MR ROTHMAN: Yes, your Honour. An award is defined as an award - it is clearly not an award of the Commission as defined in this Act there is no doubt about that. It is an order of the Commission, in our respectful submission. Firstly, his Honour, Conti J held so but because his Honour, Conti J held it was an order of the Commission sufficient to bring it within the subjection in section 149. And that requires an order of the Commission.

PN3266

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN3267

MR ROTHMAN: So it is an order of the Commission in that sense. In my respectful submission an award or order of the Commission is not necessarily an order under this Act as it is used in 5A and - - -

PN3268

SENIOR DEPUTY PRESIDENT POLITES: And it is not a certified agreement.

PN3269

MR ROTHMAN: It is not a certified agreement because a certified agreement is defined as a certified agreement under this Act. In any event, in my respectful submission - - -

PN3270

SENIOR DEPUTY PRESIDENT POLITES: No. I mean I don't intend to be flippant about this.

PN3271

MR ROTHMAN: No, no, no, I understand that, your Honour, and I - - -

PN3272

SENIOR DEPUTY PRESIDENT POLITES: The way these proceedings have gone everywhere everything is likely to be tested so I mean - - -

PN3273

MR ROTHMAN: Yes, your Honour. I am not - it was a - I have to say it is an extremely clever question. One I hadn't thought of and - but, your Honour, before your Honour asked it.

PN3274

SENIOR DEPUTY PRESIDENT POLITES: Well, I mean it occurred to us when we were considering the earlier issues - - -

PN3275

MR ROTHMAN: Yes, your Honour.

PN3276

SENIOR DEPUTY PRESIDENT POLITES: - - - in relation to the summonses.

PN3277

MR ROTHMAN: Can I make a number of issues. Firstly, if it is not an award or order of the Commission under G(v)(a) in any event the breach of an order of the Commission or a certified agreement made under a previous Act and still in force would be a matter that would be contemplated within the public interest.

PN3278

SENIOR DEPUTY PRESIDENT POLITES: Yes, and that is clearly the case. Yes.

PN3279

MR ROTHMAN: Yes, your Honour. So in one sense - and I think I have said this elsewhere - (iv) and (v) are very much particulars of (iii) one would have thought and used to be treated as part of (iii) in the past.

PN3280

SENIOR DEPUTY PRESIDENT POLITES: Yes, but I think if you read our jurisdictional decision we made a distinction in relation to that between (iv) and (v) and (iii).

PN3281

MR ROTHMAN: Yes, your Honour. There are two aspects to the question and they are interesting ones. If, in fact, it is not an award or order of the Commission or indeed not an award or order under this Act then the issues that I raised earlier about section 89A become even more obvious because if it is not an award or order of the Commission then section 111F does not apply to it - (1)(f) doesn't apply to it. Section 113 doesn't apply to it and indeed there would be nothing under this Act that you could do to the '92 agreement. And that brings us squarely back to the proposition that I put earlier that if you want to terminate the agreement what you have to do is terminate it under the Industrial Relations Act 1992, whether that is an order under 148(1) of that Act or whether it is an order under 113 or 111(1)(f) of that Act. But it would be a different proposition to the application that is before the Commission now.

PN3282

Can I - what has occurred then is this - and I don't wish to state the obvious. We say the conduct of the applicant employer in these circumstances - circumstances of this case - are such that the Commission ought not give it the benefit of a side wind order doing away with the 1992 agreement. And we say that the Commission ought not give it or deal with any application by it for an award which might have the effect of doing away with the 1992 agreement. And we say that for these reasons. Firstly, we draw attention to the lock out over a nine month period. We draw attention to the fact that the 127 orders when made were not initially complied with. They were only complied with on undertaking to the Court after a few days of application having been made.

PN3283

We draw attention to the fact that on coming back to work the work was performed under the FMIPA and there was a 60 per cent reduction in wages. That itself is industrial action in my respectful submission but that begs the question because the matter had to be resolved by the Court anyway. They continued that conduct past to the point in time when a Full Court of the Federal Court had said the 1992 agreement is applying. And in circumstances where they had said if 148 isn't operated the way we say that is the end of our argument about inconsistency between awards.

PN3284

They applied that conduct - they applied conduct in relation to the small boning room which clearly discriminated against our employees and - our members - and effectively caused these employees untold misery in circumstances where the only thing about which there was complaint was the fact that they were required to adhere to an agreement that they had made and which they welcomed. And in circumstances where, if they had so chosen, they could have at any time come to this Commission and sought an order under the 1992 Act and in accordance with that Act doing away with the 1992 agreement.

PN3285

But they have deliberately chosen not to do that. Even in this application they deliberately choose not to do that and in our respectful submission this whole application is an abuse of process. The conduct of the applicant in this matter is such that it has treated the Commission with absolute disdain and for those reasons the Commission ought refrain from hearing the dispute under 111(1)(g) (iii), (iv) and (v). I am reminded of the passage that I took your Honours to in Pacific Coal in the judgment of Gleeson CJ at page 263 of the ALR copy, line 35, and remind the Commission that the Parliament cannot do indirectly what it is prohibited from doing directly.

PN3286

And likewise the Commission cannot do indirectly what it is prohibited from doing directly. If the circumstances are that the Commission is prohibited by the 1992 Act from doing away with the 1992 agreement except in certain circumstances, which is our submission, then the Commission can't do that indirectly without regard to those circumstances. The other matter is the question of the 111(b) issue. Now, what we have said to the Commission, and indeed has been stated in a number of matters, is that the proposition that is underpinning the application of the employer in this matter is a proposition essentially unknown to this Commission or its predecessors.

PN3287

That is that the making of a minimum rates award entitles the employer to reduce actual rates. Can I remind the Commission that - my learned friend handed up the safety net review wages May 2000 and the Commission is far more familiar with the principles than am I - can I remind the Commission of that which is contained as a matter of course in every arbitrated safety net adjustment was included in the June 2000 FMIPA adjustment and every other adjustment since. And that is a clause that is contained at page 59 of the judgment in May 2000. And it is a clause which provides that:

PN3288

The rates of pay may be offset against equivalent amounts in rates of pay received by employees as wages and ...(reads)... and over award arrangements. Absorption which is contrary to the terms of agreement is not required.

PN3289

Now, in some respects it is a provision that is not often paid a great deal of attention to because - except in circumstances where one is seeking to absorb and the like - but it is a section which, in my respectful submission, embodies the underlying process - discretionary process - that the Commission has always undergone. When it has made a minimum rates award it has either expressly or impliedly made it clear that the effect of the minimum rates award was not to do away with that which was currently occurring in the workplace.

PN3290

Now, that is a - there are persons in society who would complain about Government policy about wages and conditions of employment but even those complaints have to be understood that even items 49 and 88 - sorry 89(b) - and those other provisions make clear that overall wages and conditions are not reduced by the simplification process under item 49; that overall wages and conditions are not reduced by the elimination of tallies from meat industry awards. And yet this employer comes to this Commission and says it is in accordance with the concepts and principles of this Act and this Commission that the award unilaterally do away with wages and conditions that currently apply to people.

PN3291

That is just - with respect, it is mind boggling. It turns on its face what has occurred in this Commission and its predecessors almost since 1904. Even in the Depression while there were reductions in wages they were done on a very limited basis and on an interim basis only and a number of them, I might add, were the subject of jurisdictional overturning by the High Court. The only other circumstances in which such an effect has been countenanced by this Commission is in circumstances where there has been - where it is done as "a punishment". And I am not denigrating the issues but when an award is done away with for the purpose of or as part of the de-registration process or in the case of the campaign - it is about the only one I can think of - the campaign by the plumbers in 1987 in which his Honour, Riordan SDP - whatever he was then - took out the supplementary payments order - thirty odd dollars in the award.

PN3292

Even so it wasn't suggested that wages currently then payable would be reduced. It was only suggested that you couldn't enforce that which was above it. The notion that someone would come to the Commission and say make a minimum rates award so we can pay under this minimum and reduce wages that are otherwise payable in circumstances where the union has engaged in no industrial action. Not one skerrick notwithstanding the most obnoxious incitement to same. And the union has in every sense embarked only on the proper processes of this Commission and the proper processes of the Court.

PN3293

Now, your Honours, Mr Commissioner, the position is that my learned friend's - yes, I am reminded there was one other that I can remember. That was the Pilots case but I think the - but that doesn't detract from the submission that I made.

PN3294

SENIOR DEPUTY PRESIDENT POLITES: Well, it might be an illustration of it.

PN3295

MR ROTHMAN: Indeed, your Honour. And indeed at the end of the Pilots - never mind. But the position, your Honour, is that this Commission has continually turned its face against the proposition that the making of a safety net award is some way an excuse or reason for the reduction in wages that are otherwise payable by certified agreement, by over award payment or the like. Now that is not to say that an increase in wages ought not be absorbed but that is a different issue and it is not an issue that is addressed or sought to be addressed in the award that my learned friends seek to make.

PN3296

And let us make no mistake about it this is not in any strict sense of the term a safety net if evidenced or envisaged by the Workplace Relations Act because the Workplace Relations Act envisages a safety net for a particular purpose. It is to guarantee minimum for the purpose of forming a foundation for the negotiation of agreements either individual agreements or certified agreements arising therefrom and that is not the case here. Here we have an employer who had disavowed certified agreements and disavowed an AWA with any of the employees who would be caught by this certified agreement - by this award. They have given undertakings to the Court in or to that effect.

PN3297

And so that we are in a situation where this employer comes before the Commission and says, not as they originally said, we want a certified - we want a safety net award so we can negotiate a certified agreement or AWA. Now they say we want a safety net award so called because we want to pay that safety net award and not negotiate the certified agreement or an AWA and we have given undertakings that we will not negotiate them. Now for that purpose the Commission is required, it seems, to look at the objects of the Act. Now, the objects of the Act are set out in section 3.

PN3298

The principal object of the Act is to provide a framework for co-operative workplace relations. Now there is no evidence adduced by this employer or anyone for the proposition that the making of this safety net award would provide a framework for "co-operative workplace relations". And those co-operative - that framework is said to promote the economic prosperity and welfare of the people of Australia by encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market.

PN3299

Now, let us go through that. There is no suggestion or evidence that the making of this safety net will in any way affect employment upwards or downwards. Just not in evidence in relation to O'Connors or anyone else. It is certainly in evidence that it will not improve living standards. It is not in evidence, nor is it suggested, that it will have an effect on inflation. And it is not suggested or in evidence that it would render O'Connors internationally competitive.

PN3300

It is certainly not in evidence that it will achieve higher productivity and it is certainly - the only thing that is in evidence is that the rate of wages would probably not fit the category of "a fair labour market". We don't have to deal with AA because it is not an issue that arises in the details of this matter. B - ensuring the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level. Now let us deal with that.

PN3301

What the applicant seeks to do in this case is have the Commission determine an award, which they call a safety net but which will be used by them as an award for actual rates of pay, and in doing so do away with the agreement that has been reached between employers and employees and in that sense undermine the negotiations and settlement of disputes that occurred at the workplace or enterprise level. And let us be under no illusions about it. I have taken the Commission to it. The agreement that was reached in 1992 was intended and was expressed to continue in force until the parties reached another certified agreement. Paragraph C - - -

[11.30am]

PN3302

SENIOR DEPUTY PRESIDENT POLITES: That is part of my difficulty, Mr Rothman; they did in fact reach another agreement which via a technicality was not properly certified.

PN3303

MR ROTHMAN: Well, your Honour, let us assume for the purpose of argument they had, and let us assume for the purpose of argument we took the 1995 agreement as the agreement. That agreement would still be in place. For anyone to do away with it the parties would have to come to the Commission and make an application under 170MH or the appropriate provision.

PN3304

SENIOR DEPUTY PRESIDENT POLITES: I thought they did.

PN3305

MR ROTHMAN: And the Commission found it had no jurisdiction to deal with the 170MH application. But your Honour is asking me about the hypothetical, and I am trying to deal with it, and I apologise if I was being short about it. They haven't made any equivalent application in relation to the 1992 agreement, and that was our point. If the objects of the Act are such that the '92 agreement ought be done away with then let us see an application to that effect.

PN3306

And if in fact they had come to the Commission and said: we want you to do away with the '92 agreement for this reason, and the reason is we actually reached agreement in 1995 - which I made add did not expressly overtake the '92 agreement - but we reached agreement in 1995 and that agreement, notwithstanding the technicalities, ought be done away with under 170MH. But they haven't even done that. They don't make application under 170MH or its equivalent; they don't make application under 170 - sorry, 134M or 134E. They don't even make application under section 113.

PN3307

What they do is they ask the Commission to take a dispute in 1992, make a safety net award with a provision in it that does away with it as a side wind. And that is the point we have made, that that process is not a process in conformity with the objects of the Act. And with respect, your Honour - and I understand the way in which your Honour puts it - but, with respect, the notion that the agreement was overtaken by the 1995 agreement is not an answer to that question, and it is not only not an answer to that question for some legal technicality or nicety, it is not an answer to that question for the very morality of it, or the merits of it, because the '95 agreement - the only thing the '95 agreement did was increase the rates of pay in the '92 agreement.

PN3308

So that in every sense the parties have acknowledged the appropriateness of the '92 agreement. If anything it may have conferred the '92 agreement from a minimum rates - from a paid rates to something different. But the - and I think I have had this debate with your Honour once before - but whether one looks at the merits or one looks at the legal technicalities, what is required in terms of the objects of the Act and the exercise of the Commission's discretion has not even been attempted by the applicant in this case. And it can't be said that the '92 agreement - I withdraw that.

PN3309

There is no evidence that would suggest that the objects of the Act are met or satisfied or in any way encouraged by the prospect of this award being made, and that is the point we are seeking to go to. Paragraph C seems to fit squarely within continuing in place the '92 agreement, but I don't suggest that that was the intention. But it either fits the proposition as a subset or an expansion of paragraph B or it is an - and it includes for example state awards, and your Honours know the changes that were made in relation to state agreements and awards - or it doesn't affect the exercise of discretion in this matter. Paragraph D:

PN3310

Providing the means for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees of the workplace or enterprise agreement upon a foundation of minimum standards.

PN3311

Dealing with that, we have the minimum standards, that is in the FMIPA. We also have wages and conditions of employment determined by agreement of employer and employees at the workplace level. We won't have that if this award is made, because if this award is made you will no longer have the agreement of the employer and employees at the workplace level. You will no longer have a situation in which that will be determined by agreement of employer and employees because of the undertakings that have been given to the Court by O'Connor's that they will not breach AWAs with these employees, and they will not have a certified agreement.

PN3312

And as I have said earlier, the ensuring of the effective award safety net is in place, because as is made clear by the Conti judgment and indeed by the submissions of the AMIEU, but for the operation of the '92 agreement, the safety net - the FMIPA - would be now applying to O'Connors, and it is there as a safety net. If the '92 agreement was done away with tomorrow, then the FMIPA would be applying. So that paragraph D still accords with the proposition that the award would not be made and satisfied if the award is not made.

PN3313

And likewise E which relates to again employers and employees and a fair and effective agreement-making, and again that would be overborne in circumstances where there is an award made of a kind here in place. And the Commission in those circumstances has to ask itself, in my respectful submission, what would best encourage the parties to agree and to resolve the matters that are underlying the issues that have been before the Court and before the issues.

PN3314

SENIOR DEPUTY PRESIDENT POLITES: A question I have asked myself regularly, Mr Rothman.

PN3315

MR ROTHMAN: Well, your Honour, you are not alone. Someone rudely suggested that Commissioner Wilcox at one stage suggested likewise. But, your Honour, the situation is this: the Commission must deal with evidence, and the evidence that is before the Commission is this in relation to these matters - I don't want to trash over ground, but there was an agreement in '92, it was continued. In 1998 there was a series of claims made about reduction in certain allowances and wages. The union did not, as is not uncommon, embark upon a campaign about that claim. There was no industrial action about it.

PN3316

It actually wrote to the employers saying: look, you tell us why you need this; you tell us what is the basis for this reduction, and what are the reasons that you need these new rates of pay and conditions of employment, and we will consider them. They said that much. Now, that is hardly an unreasonable approach to industrial relations to ask for the circumstances and evidence which would justify a reduction. Now, not only did the employer refuse to give them that information, not only did the employer point blank, on the evidence before the Commission, say we are not prepared to discuss those issues, they said the same to this Commission.

PN3317

They said to this Commission: we are not prepared to give you the information or the reasons why we want a reduction in wages. We are not prepared to allow you to deal with the merits. Not, the Commission is entitled to say: what will best be conducive to the reaching of an agreement between the parties? And there are two ways in which to deal with it. The first is: do you allow a situation to apply where the employer can continue a strongly arguable position - I withdraw that - can continue the implementation of duress. It has been held by the Courts that it is strongly arguable that duress has been applied to these employees, and they are doing that by the reduction in wages that they seek to give effect in the making of this award.

PN3318

So that is item number 1. Will that be conducive to a fair and appropriate agreement-making process. The answer to that has got to be no. Apart from anything else, the Commission knows that this employer has said that they won't reach an agreement. They don't want a certified agreement, and they are not prepared to reach an AWA with any of these individuals. So the Commission knows that the making of this safety net award will not be conducive, and will not result in an agreement.

PN3319

The other alternative is they don't make the award. They don't make the award and the '92 agreement continues to apply, and the employer is then required - it is not the rates that were applying at the time of the lock-out, it is indeed significantly less than that. It is significantly less than the '95 agreement rates, and it is significantly less than the rates that were applying prior to the lock-out. So the Commission isn't saying: you go back to square 1 and you get everything that you had before the lock-out.

PN3320

The Commission would be saying the '92 agreement continues as the industrial instrument that it was intended to include until you come back and give us reasons as to why it ought not, and until you come back and tell us in accordance with the Acts and the provisions that apply in the determination of these agreements why it is this agreement ought be terminated.

PN3321

SENIOR DEPUTY PRESIDENT POLITES: But I mean, in one sense - and I realise this evidence went in for a different purpose, or the submission went in for a different purpose in the written outline that O'Connor's has provided, that is what they do. They say, look, there is only a rump of people on this agreement. The only way you will restore industrial harmony is to put these people on the same - is to remove this agreement under which this rump of people works.

PN3322

MR ROTHMAN: Well, first of all, your Honour, they don't say: put these people on the same rates as everyone else in the workforce.

PN3323

SENIOR DEPUTY PRESIDENT POLITES: No, they don't, but that might be the effect of some undertakings in the Federal Court.

PN3324

MR ROTHMAN: No, your Honour, that is the effect of - there has been no undertaking about payment of wages. What there is has been an order of the Court which has been resisted at all times. And the people who are there working in different circumstances and in different conditions and other different conditions are being paid less than the people on AWAs, not the same as. That is the evidence.

PN3325

The second aspect is that your Honour only knows the submissions being put by my friend, and let me make it clear in this case: no submission absent evidence is accepted by our side of the record. We have made that clear at the outset. We continue to make it clear. My learned friends have chosen quite deliberately not to call evidence.

PN3326

SENIOR DEPUTY PRESIDENT POLITES: But the material as a whole indicates how many people were employed at this workplace and how many of them are subject to AWAs. That is all in the bulk of the material. Now it is a reasonable inference that what I put to you is right, there is what a call a rump - and I don't say that disparagingly - a rump of people only who are now subject to the '92 agreement.

PN3327

MR ROTHMAN: There are 30 people odd, most of them tradespersons, who are covered by the - in fact it is exactly 30 people who are covered by the terms of the - who are not subject to an AWA. And what the Commission hasn't heard is how many people were employed before the lock-up, how many of those people continue to be employed, if any, other than the 30 that are under the '92 agreement. And being paid under the '92 agreement. What the Commission does know - - -

PN3328

SENIOR DEPUTY PRESIDENT POLITES: We were told that there were some people who were not being paid the AWA rates at one stage. Being paid differently to the AWA rates. I recall making reference to it in one of the earlier decisions.

PN3329

MR ROTHMAN: Well, there are people who are - who prior to the lockout - we accept that there are one or two people who prior to the lockout were employees covered by the '92 agreement and are now supervisory employees, if that is what your Honour is referring to. Otherwise, everyone eligible for membership of the AMIU is either in the category of persons who have not signed AWAs, or are being paid AWA rates. I think that almost as a matter of logic that has to be the case.

PN3330

The people who are not signatories to AWAs, which is the 30 people for whom - or about whom a lot of this argument has been generated, are in a situation where they are being paid on the evidence less than the people who are working on AWAs, but they are being paid by order of a Court at the rate of however much it is per week. I understood from my learned friend, Mr Parry, that there is at least an argument that the 1992 agreement applies to everybody at the workplace, but I haven't really followed that argument through and I don't know if it was done also a bit as a sidewind to - - -

PN3331

SENIOR DEPUTY PRESIDENT POLITES: I am sorry, Mr Rothman, I might have misled you. It is paragraph 19 of the jurisdictional decision that I was conjuring up in my mind. It reads this:

PN3332

There were uncontroverted submissions that at least two employees of the applicant not on an AWA are being paid not the rates in the award, but rates identical to those provided in the AWAs.

PN3333

MR ROTHMAN: Yes, your Honour. There were two employees who we say are bound by the 1992 agreement who at the time of that order were being paid AWA rates. Yes, your Honour. That is an historical aberration which doesn't impact upon anything that we have said. Indeed, in relation to those two people, the order of Conti J would require them to be paid backpay. The - excuse me, your Honour. I was taking the Commission through the provisions of the objects of the Act and the reasons why it is that the objects of the Act are not satisfied or encouraged in the making of an award of this kind under 111B.

PN3334

I have taken the Commission through a number of the provisions of the Act. Can I remind the Commission of the fact that section 88A refers to objects of the part, that is part 6. In my respectful submission, these are detailed objects which go once more to the objects of the Act being more satisfied by not making the award than by making the award. And that relates again to the issue of whether or not this award will be conducive to the making of an agreement, the operation of a safety net, the operation of awards that are simplified and the operation of the Commission's functions being exercised in a way that encourages the making of agreements.

PN3335

And uses a case by case approach to protect young people which is not an issue that the Commission has to concern itself with in relation to this matter. And I was in the process of saying to your Honours, that in terms of what would be most conducive to the making of agreements and resolving the underlying issues in the case, ultimately the purpose of dealing with workplace relations at the workforce - your Honour has referred to the number of employees as a rump, and I know your Honour wasn't being in any way insulting in that, but, your Honour, to describe 30 out of 200 as a rump, in my respectful submission, is an inappropriate expression in the sense that it is a significant number of tradesmen.

PN3336

It is, in our respectful submission, the most skilled of the tradesmen and it is the largest - the only group of persons who have continued since the lockout, other than supervisory employees. So that what the Commission - - -

PN3337

SENIOR DEPUTY PRESIDENT POLITES: So there are no persons on AWAs who were previously employed? Is that the inference I draw from that?

PN3338

MR ROTHMAN: Well, no, your Honour. There are some people on AWAs but my understanding is that they are engaged in supervisory tasks. I am sorry, your Honour, I am corrected. There are some that work on the floor. I apologise. But if anything was a rump, that would be the number. It is certainly nowhere near 30. The - so that the question becomes what is most conducive to a resolution of the long term issues of a reaching of an agreement or agreements, and there are two ways in which to deal with it.

PN3339

The first of them is, it is clear that the 30 employees here in question are not going to be the subject of an agreement or AWA from this employer in circumstances where the safety net is capable of being applied. That is clear from the conduct of this employer for over 12 months applying the FMIPA rates and conditions. It is also clear from that which has fallen from my learned friend's client through the course of the proceedings in the Federal Court. On the other hand, if as is suggested by my learned friend, and I really haven't turned my mind fully to the proposition, if the 1992 agreement applies and continues to apply and according to my friend, may even apply to AWA employees, then the issue must be resolved, and in my respectful submission, would have to be resolved by agreement.

PN3340

There is, then, the need to address the issue of the competitiveness if it be an issue of G and P O'Connor and the wage rates that have to continue into the future. And what we say is, the most encouragement that can be given to such a resolution, would come from not making the award rather than making it. Your Honour, my learned friend has informed me of something that has occurred this morning and was the reason for his absence at the commencement of proceedings. As a result of that - I had otherwise essentially concluded my submissions, but as a result of that I need some time to discuss with my learned friend the course that we then adopt. If your Honours would give us 15 minutes, I would be most appreciative.

PN3341

SENIOR DEPUTY PRESIDENT POLITES: Mr Parry, I know it is early days, but how long do you think you would be in reply?

PN3342

MR PARRY: About an hour.

PN3343

SENIOR DEPUTY PRESIDENT POLITES: Yes. Well it looks like we might then finish this afternoon if all goes well. Yes, by all means, Mr Rothman, we will adjourn for 15 minutes.

SHORT ADJOURNMENT [11.54am]

RESUMED [12.15pm]

PN3344

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rothman.

PN3345

MR ROTHMAN: Thank you, your Honour. Can I thank the Commission for its indulgence and apologise for the delay. I have taken a little longer than I expected to take when I started, but it seems to me those are the matters that we sought to deal with in the - in the proceedings. There are a couple of matters that we ought - we ought deal with. We have - we have not heard my learned friend on 111(1)(g) and the like but I think we have pretty much dealt with all of the issues that have otherwise arisen.

PN3346

Can I remind the Commission of - of two matters. Firstly, a decision of the Commission, which in my recollection, your Honour - I have not had the chance to look at it overnight and I do not have all my library facilities available, but a decision of the Commission made some years ago in the Australian Conciliation Arbitration Commission, which has been adopted and applied by this Commission - it was a Full Bench consisting of their Honours, Ludeke and Alley JJ and Commissioner Merriman, all of whom have now retired. The dealing with the question of Brown v Dunn, I raise this for this reason - some matters were put to the witness, Collin Ross, relating to occupational health and safety. We have not separately relied on those issues in relation to the proceedings, but to the extent that it was - that it said that - that the witness was somehow acting otherwise in accordance with his duty under the Occupational Health and Safety Act.

PN3347

That proposition was never put to him, nor was anything of that kind put to him by which he could explain the circumstances, or the like. Although to some degree I suppose the circumstances were explained in that the witness made clear that he took over after the previous occupational health and safety representative had been dismissed. He went through what he described as a fairly torrid session with the employer representatives, of the employer and it is little wonder that in those circumstances he did not raise individually and directly with the employer some of the matters that might otherwise have been done and sought to do so through the occupational health and safety person at the union.

PN3348

But in any event, what we say is if it is suggested that there was some mala fides that was not put then it ought to have been put. The matter that we sought to raise was the issue of - of inferences and what the Commission is entitled to draw and not draw from the material that is before it. The Commission, of course, is not bound by the rules of evidence. I did extract - for what it is worth, I am not sure if much of this case actually turns on inferences, but for what it is worth I caused to have photocopied a judgment of the Court of Appeal in New South Wales which applies and follows inter alia the judgment of the High Court in Jones v Dunkel. The case I have handed up to the Commission is a case called Fabre v Arenales, spelled F-a-b-r-e v A-r-e-n-a-l-e-s, (1992) 27 NSW LR, commencing at page 437. It is a Court of Appeal consisting of Mahoney, Priestley and Schiller JJ. At page 444, his Honour, Mahoney J, who was the majority judgment - Priestley and Schiller JJ judgment are both contained on page 454 and adopt Mahoney J. He goes to Jones v Dunkel after an excursus into inferences. He starts, perhaps, at about point (c), just below point (c) on the page, about point 5:

PN3349

the ordinary inference of fact -

PN3350

this is on page 444 -

PN3351

the ordinary inference of fact is generally of the form because facts (a), (b) and (c) exist, I infer that fact (z) exists, existed or will exist ...

PN3352

and then two questions arise in relation to that inference of whether the inference can be drawn and whether, if it can, it should be drawn. Some inferences cannot be properly drawn, they may be for example illogical, irrational or insupportable in fact. The Jones v Dunkel principle was not concerned whether a particular inference in fact can be drawn it is concerned with whether it should be drawn in a particular case.

PN3353

The principles concerned with the effect which should be given to a particular fact, namely that a witness who could have spoken as to the existence of (z) did not give evidence. Menzies J at 312 put the matter succinctly and they then quote a very well known passage out of Jones v Dunkel etcetera, basically that where inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that a defendent disputing it might have proved to the contrary had he chosen to give evidence is probably to be taken into account as a circumstance of favour of drawing the inference.

PN3354

Windeyer J is then cited at pages 320-321 and I do not read it. It is a very well known passage but invite your Honours to do so and then his Honour, Mahoney J, in the Court of Appeal concludes at point (f) on page 445, in the following words:

PN3355

There is nothing esoterical peculiar to legal reasoning -

PN3356

Only a lawyer could say that, your Honour. It is as Windeyer J said, "plain common sense". The factual inference that if (a), (b), (c) exists, (z) exists is open if, to quote the words of Knox CJ and Dickson J, as he then was, "human experience would be contradicted if (z) did not exist". See the cases referred to in Jones v Sutherland. It follows that the inference well may be drawn if general human experience and plain common sense will not be contradicted if inference be drawn.

PN3357

Now, in this case the Commission is an arbitral tribunal. It is an arbitral tribunal which does not mean that it acts not withstanding the absence of evidence. It has to act in a manner which is based on the evidences before it, or the material before it is probably a better description and the situation is that what has occurred in this case is an application for an award which is devoid of any evidence relating to the merits of this award and devoid of any evidence to support the making and the reasons for the making of this award and elimination of the 1992 agreement.

PN3358

The Commission is entitled in those circumstances to assume that any evidence that could be - that could be adduced by my learned friend on the international competitiveness of O'Connors, the interstate competitiveness of O'Connors, the efficiency of the way in which the 1992 agreement works, the material that otherwise would go to the merits of an award or why an award would be done away with are not matters that, if adduced, would assist my learned friend's case and that can be done in circumstances where the Commission had filed before it, in January, material which showed that the 1992 agreement, when made, ensured into the future the international and interstate competitiveness of this employer and was considered by the Commonwealth best practice in the meat industry and best practice in industrial relations.

PN3359

The only other matter, your Honours, that the Commission - that fell from the Commission during the course of my learned friend's submissions were more debating points that have probably have been covered. It seems that my friend does not say that the Commission is required to make a safety net award and in circumstances where a safety net award would apply absent the - absent the 1992 agreement, there seems to be no need for it and what is really being asked for is an order doing away with the 1992 agreement without any reasons.

PN3360

The second aspect, your Honour, is the matter raised by the Commission in - in the course of my learned friend's submissions, which was when my friend and I do not mean that critically, sought to have his cake and eat it. When my friend said, well, the 1992 agreement should be treated as if it were an award - of course we know it is not - or treated as if it were a certified agreement even though it is not. Now I have already put the submission that if this were a certified agreement under the Workplace Relations Act then we would be in exactly the same position and the Commission would not make these orders.

PN3361

I have also already put that the operation of the 1992 agreement is not - the 1992 agreement is not operating in any way differently from a certified agreement that would operate under the 1996 Act, in that - I do not mean its jurisdictional basis is the same, but I mean it is acting in a way which - which precludes the operation of the safety net award to the extent that they are inconsistent and Conti J has held that they are fundamentally inconsistent. But during the course of that submission the Commission put to my learned friend the proposition which is a proposition that accords with the fundamental submission that we make on the merits in 111(1)(b) and that is that the Commission, in all of the matters that have arisen since 1996, and indeed before, has never taken the view that you implement a minimum rates award for the purpose of undermining as distinct from underpinning agreements and other award arrangements and the proposition that, I think, fell from your Honour, the presiding Judge and at one stage from Commissioner Simmons, and I think from one stage from Senior Deputy President Watson, was the proposition that in the simplification process one had the - to use the vernacular the (a), (b) and (c) columns and I think from Commissioner Simmons, the proposition that in the FMIPA arrangements for the 2000 award, there were the arrangements of the decision for the board of reference proposals.

PN3362

Now, of course, when one is dealing with a general award the (a), (b) and (c) column or the proposal for general provisions to deal with the details are appropriate procedures. When one is dealing with a - with an enterprise award and there are different approaches, no one - I have to say perhaps at the outset no one has suggested that the work here being performed is performed in exactly the same circumstances or exactly the same conditions or with exactly the same skills as are performed in other general meat works.

PN3363

It is one thing to set a safety net award which deals with a generality, it is another thing to say there is a properly fixed minimi for the purposes of a particular enterprise award, but leaving aside that issue which is a more general issue the fundamental and underlying purpose and if I could be so bold as to say, the purpose of the Commission, in having its (a), (b) and (c) column, and the purpose in item 49 and the purpose indeed in 89B, is to ensure overall wage rates are continued.

PN3364

Now, if the Commission is against us on all of the matters that we have raised about the operation of 89A about whether or not the Commission can deal with these matters, about whether or not the Commission ought deal with these matters, about the nature of the application and why it ought not be dealt with in the way in which it is predominant, and assume the Commission is against it on all of those matters and the Commission was otherwise mindful to make an award which is - which is bold or a pessimistic assumption on my part, but nevertheless assume that as a must, and deal with it.

PN3365

And it is my respectful submission the way in which the Commission ought deal with it is it ought deal with it my making a decision to that effect and inviting the parties to deal with the form of the order, and the Commission ought in the decision make clear in respectful submission that the making of the interim - the making of the award would not include paragraph (5) and would not be used to reduce overall entitlements of employees under any other industrial instrument and leave it then to the parties the - either an argument before the Commission, or a single member of the Commission, the form of the orders, or seeking to obtain agreement on the form of the orders.

PN3366

My point simply is that it is not quite as simple as an (a), (b) and (c) column because of the - because of the tally issue and what are in fact the wages. It is also not as simple as a proposition that will have a board of reference as was done with the FMIPA because you are now dealing with a particular employer and we are now dealing with a situation where, undoubtedly, there will be a reduction in wages if this award is made, absent an order of the Commission to an opposite effect.

PN3367

So that the Commission really needs to deal with that. If it is minded otherwise to make an order, it needs to deal with that at the outset and my respectful submission is that the form of that order ought be the matter of debate after we are aware of what it is - is the attitude of the Commission. I would not anticipate that would be a long debate if it is a debate at all, but I make that submission for the purpose that I think it is really necessary. One could envisage a number of ways in which one could deal with it, but one would really need to deal with that at a time when we were aware of the Commission's attitude to it, and those are the submissions we would make.

PN3368

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rothman.

PN3369

MR ROTHMAN: I apologise for the length of that submission.

PN3370

THE SENIOR DEPUTY PRESIDENT: No need to apologise. Mr Parry.

PN3371

MR PARRY: If the Commission pleases. These submissions are in response to the submissions regarding section 111(1)(b) and section 111(1)(g). The respondent union commenced with a very broad review, relying on the affidavits of Mr Davey and Mr Bird which gave the Commission the history up until December - sorry, December 2000. And after that there has been some decisions and some pieces of transcript placed before the Commission and I think the Commission - the other document the Commission has - is the orders of Marshall J, made on 12 December 2000 and also the orders of Marshall J on 12 February 2000. And those orders of Marshall J on 12 February 2000 have, in effect - I am sorry - those orders on 12 December and 12 February have, in effect fixed the terms and conditions of these group of employees.

PN3372

Now, there are - my learned friend referred to the Full Court decision on 18 December 2000 and I do not think that has been provided to the Commission. If I could provide a copy of that decision to the Commission.

PN3373

And the Commission will recall that there were orders of Marshall J on 12 December which made reference to the conditions of the 1992 agreement. There was an appeal against that the award - the order was varied as is set out on the first page and then there are brief reasons for judgment which follow that and there was leave and stay sought and at the bottom of the first page of the reasons for judgment there were various reference to alleged errors and over the page the submissions of O'Connors with regard to those errors, as set out and the Full Court at the end of that said:

PN3374

In our view at least some of these grounds raise an arguable case that the orders...(reads)... grant leave of appeal.

PN3375

They then turned to the question of whether the orders should be stayed and they say it was clear that the orders went beyond the relief which the applicant sought and over the page it might be noted that in the final paragraph:

PN3376

O'Connor has filed materials for...(reads)... the Court can deal with it at short notice.

PN3377

I am note sure if - it is fairly obvious that the dealing with it, concerned the small boning room and the operation of that. Now during December, and I do not propose handing up these documents to the Commission, they have been referred to in a general sense - they were proceedings going on before Conti J and those proceedings were for back pay and they were based on enforceability and the effect of the 1992 agreement, and whether the 1992 agreement had been breached.

PN3378

And there was evidence given in those proceedings in December about the operation of the 1992 agreement and whether it had been breached and there was argument then about whether the agreement required payment of full tally or not, and the judge, I think in the most recent decision he has handed down before the Court, the Commission is - has made declarations - he has not dealt with the details of the breaches and there is at present correspondence about orders going on between the parties.

PN3379

Now, the Commission has heard evidence about the small boning room commencing operation. It has before it, the affidavits that were relied on by the applicants in the proceedings before Marshall J and the Commission has also had that supplemented by oral evidence of Mr Ross, one of the applicants, and what the Court - the Commission does not have before it is the notices of motion, the judgment of Marshall J and the sort of arguments that were advanced before Marshall J which lead up to the making of the orders on 12 February and what I would provide to the Commission is the transcript of the proceedings before Marshall J. That is on 12 February, but also I have a document, which is the proceedings that were before Marshall J on 30, 7 and 8 February. If I could provide that to the Commission.

EXHIBIT #J8 TRANSCRIPT OF PROCEEDINGS BEFORE MARSHALL J ON 12 FEBRUARY

EXHIBIT #J9 BUNDLE OF TRANSCRIPTS BEFORE
MARSHALL J COMMENCING 30 JANUARY

PN3380

MR PARRY: And if I could provide the Commission with the notice of motion that the union and the various applicants relied on in the proceedings before Marshall J.

EXHIBIT #J10 NOTICE OF MOTION FILED IN FEDERAL COURT ON 25 JANUARY

PN3381

MR PARRY: I have handed up all the transcripts to avoid handing up sort of extracts out of it and so that that materially is fully before the Commission. And I just wanted to take the Commission to certain pages, and I am not going to read it out, I am just going to show the arguments that were developed for Marshall J, so that the Commission appreciates the material arguments that lead to the making of the orders of 12 February.

PN3382

The first day - the 30th - my learned friends at the bar table will be far more familiar with these proceedings than I. I have had the fortunate position of not having to spend a lot of time before Conti and Marshall JJ with regard to these matters. I hope that I can keep my record fairly clean on that - that is not a guarantee I could make unfortunately.

PN3383

First day of the 30th - - -

PN3384

THE SENIOR DEPUTY PRESIDENT: It is Pooh-Bar defence, is it Mr Parry, I was not there?

PN3385

MR PARRY: And I - I did not say it, that is right. It is more the Bart Simpson defence and you cannot - and you cannot prove anything at the end. The first day, 30 January, was basically toing and froing, I do not take the Commission to that. There was then submissions by my learned friend, Mr Rothman, and then on 6 February at about page 18 Dr Jessup who was appearing for O'Connors, about page 18 had started to make submissions about the position of the employees, that is the hardship they were suffering and for the following pages he dealt with various argument and submissions about the hardship the employees were suffering and I am not going to take the Commission to that but obviously that was a matter before the Commission - the Court.

PN3386

There was then paragraph 68 where Mr Rothman commenced his submissions about section 170WG and the duress that applied from 68 onwards and then after making those various submissions as, with all counsel there is toing and froing and at page 77 Mr Rothman then deals with the argument about variation of the orders and makes - then gives the history of the matter and the Commission is well familiar with them. And then on page 78 and 79 it starts to deal with the argument that the Commission has heard about the operation of the 1992 agreement and Mr Rothman also relied on the - at page 80 on the induction booklet and arguments with regard to the induction booklet again have been - the Commission has heard fully about.

PN3387

Now, and again page 83 the Gridley termination letter has also gone through with the Court. Now this all leads up to the argument on page 86 about an issue as to the construction of the 1992 agreement and this is at paragraph 10 as to the entitlement to maximum tally at least under the 1992 agreement and then there is argument about maximum tally. Now on page 88 the Commission will see the sort of argument about maximum tallies being advanced and what I think is really advanced there is that what is contained in the notice of motion that was being pursued by the applicant, was that they should be paid maximum tally.

PN3388

THE SENIOR DEPUTY PRESIDENT: Mr Parry, is that a convenient time?

PN3389

MR PARRY: If the Commission pleases.

PN3390

THE SENIOR DEPUTY PRESIDENT: We will adjourn until 2.15.

SHORT ADJOURNMENT [12.45pm]

RESUMED [2.20pm]

PN3391

SENIOR DEPUTY PRESIDENT POLITES: Yes, Mr Parry.

PN3392

MR PARRY: If the Commission pleases, I was dealing with exhibit J9. It was before Marshall J. At transcript page 100 after Mr Rothman finished his submissions, then Dr Jessup commenced submissions and as the Commission will note, paragraph 10 on page 100 - level, line 10 or whatever. Two things the applicant was seeking: small boning room be closed; secondly, a guarantee of weekly level of remuneration based on the assumption of high tally. Now as to the second proposition, the assumption of high tally, Dr Jessup dealt with that from page 101 onwards.

PN3393

Now, again, I think I will - there is a couple of references there to material which was before the Court which is not before the Commission and I don't rely on that, but Dr Jessup presents an argument thereafter over the next eight or nine pages which deals with the application of the 1992 agreement and whether it requires high tally. Insofar as it is relevant, I adopt that. I am not going to go through the same arguments again in respect of why Dr Jessup advanced those arguments. He deals with the agreement and I say that he deals with them appropriately.

PN3394

Now at page 107, he then goes on and deals with this question of the establishment of separate boning room and makes reference to various of the applicant's material and the Commission might note - I think it is page 111 that - it is round about at page 111 that is already before the Commission at exhibit R19. The Commission will remember that part of that was tendered and it is to complete that, I think, at page 130 there is further argument by Dr Jessup about the operation of the 1992 agreement which is additional to the earlier argument. So that is the material that was before - that was the submissions and argument that was before Marshall J. Marshall J handed down a decision on 12 February, if I could provide a copy of that to the Court.

PN3395

SENIOR DEPUTY PRESIDENT POLITES: It is not reported, Mr Parry, is it?

PN3396

MR PARRY: No, it is unreported.

EXHIBIT #J11 DECISION OF MARSHALL J HANDED DOWN ON 12 FEBRUARY

PN3397

MR PARRY: And he recites again the history and extracts from court cases, deals with the various bits of material before him and I think it is at paragraph 19. First he deals with the argument about discharging the interlocutory orders and he decides not to discharge them, and then he deals with whether the interlocutory injunction should be varied so that the precise rates of pay are set in the situation where the respondent is compelled to comply with the 1992 agreement and does so according to its view of the effect of that agreement. There is a dispute between the parties as to what compliance with the 1992 agreement entails:

PN3398

In that 12 December judgment I was concerned to ensure that individual applicants were not pressured into signing AWAs as a result of being placed ...(reads)... any differences between the parties on the wording of an appropriate order.

PN3399

Now indeed, what happened on that day was that this judgment was presented and then there was further debate about the formal orders and the Commission has before it the transcript of those proceedings on 12 February, which I think is exhibit J8. If I could take the Commission to that. So if the Commission see on page 157, the matter was listed, judgment delivered. Then Mr White:

PN3400

With respect to your Honour, could I hand to your Honour the copy of a draft order which we have prepared.

PN3401

Now that draft order - I am not sure I need to burden the Commission with it, but what it does, relevantly, was it included an order in the form of order (7) in the notice of motion and the notice of motion order (7), was an order:

PN3402

That the respondent provide work to each of the 2nd to 31st applicants at the workstation or stations at which the applicant performed his or her work prior to the order of the Court made 12 December 2000.

PN3403

And in the submissions made during the proceedings by Dr Jessup, Dr Jessup had said the effect of that order is to remove the small boning room. So the judgment was handed down, a draft order went up which included that order within it and that was order (8) in the draft order and Mr White for the various applicants then described this order and at page 159, paragraph 10 refers to it, says:

PN3404

As we understand the respondent doesn't intend to maintain the operation of the small boning room. We seek an order -

PN3405

Now there was various to-ing and fro-ing about the forms of the order which aren't relevant.

PN3406

COMMISSIONER SIMMONDS: Sorry, this is exhibit - - -

PN3407

MR PARRY: I hope it is exhibit J8.

PN3408

COMMISSIONER SIMMONDS: Yes, mine doesn't have those page numbers.

PN3409

MR PARRY: Sorry, on page 159.

PN3410

COMMISSIONER SIMMONDS: No, mine goes from page 1 to - must be missed numbering somewhere.

PN3411

SENIOR DEPUTY PRESIDENT POLITES: It may be that the Commissioner's J8 is not the same as everybody elses J8.

PN3412

COMMISSIONER SIMMONDS: No, no. Mine is a totally different document from that.

PN3413

SENIOR DEPUTY PRESIDENT POLITES: It is a different transcript. I wonder if you have got another copy available, Mr Parry? If not, I will share mine with the Commissioner and we will replace it later.

PN3414

MR PARRY: Yes. What you have been handed is 8 June 2001.

PN3415

COMMISSIONER SIMMONDS: I think it might have been just a - - -

PN3416

MR PARRY: Yes. I am sorry about that. To go back, Commissioner, page 159, Mr White explains paragraph 8, line 10. And there is various to-ing and fro-ing which I won't take the Commission to, and then - I think it is page 168, Mr White - line 40:

PN3417

Can you bear with me for a moment, your Honour. Your Honour, in your reasons given this morning, from my recollection you didn't really address the issue of ...(reads)... established probably need not continue.

PN3418

Then Mr White makes reference at the top of page 169 to the occupational health and safety issues and the issue of whether there needed to be an order requiring the closure or maintenance of a small boning room and Dr Jessup was asked whether he wanted to make submissions about this and I don't - I am not going to read that out. On the next page, page 170, halfway down the page:

PN3419

In our submission, your Honour, what they are looking for here is an advance on the nature of damages and it is not a proper maintenance of the status quo or ...(reads)... I won't address your Honour further in this regard.

PN3420

At the top of the next page:

PN3421

My observation was that a possible benefit of the type of order I intended to make was that you may be able to operate without it, but it is a matter of your choice.

PN3422

DR JESSUP: I understand that, your Honour. Your Honour had in mind that we might then see no need for it.

PN3423

And I - he then made the order - started dealing with the order at page 172 at line 40, and:

PN3424

It was the Court's intention as indicated in the ex tempore judgment that the harm sought to be avoided by the 12 December judgment can be avoided if the individual applicants are paid no less.

PN3425

And then he went on and made the order without the order sought in respect of the small boning room. So that is the background of the orders that Marshall J made on 12 February. Now with regard to the small boning room, I will make these fairly brief submissions in response. We have heard evidence from Mr Ross, we have had the affidavits that were before Marshall J placed before this Commission and in my - from what I have heard today, the existence and operation of a small boning room is very faintly pressed as an argument under section 111(1)(g) or spent very little time dealing with the evidence.

PN3426

Indeed, the focus seems to have been more on any submission that we might make about the lack of good faith of the occupational health and safety delegate. In my submission the evidence is fairly clear. Occupational health and safety issues were raised. They were raised in January. They were brought to the attention of the relevant authority being the WorkCover authority. WorkCover has investigated. PIN notices were issued. Those PIN notices were dealt with in a consultative manner with the occupational health and safety delegate. Those PIN notices were complied with, both to the satisfaction of WorkCover and the occupational health and safety delegate.

PN3427

The highest it can be put at this stage, as we are in June 2001, is that the occupational health and safety delegate has said he has concerns. In respect of those concerns his evidence is, in substance, he has done nothing. He has not issued a PIN notice. He has not notified WorkCover. What he has done, on his evidence, is to organise an inspection, not for any occupational health and safety reason, but for the purposes of litigation in the Federal Court, and on the basis of that material it is our submission that there is no occupational health and safety issue.

PN3428

My learned friend makes a submission that it is little wonder he didn't raise matters. Well, that is not his evidence. In my submission, the existence - an operation of the small boning room is no reason for the Commission not to exercise its jurisdiction on the section 111(1)(b) and provides no grounds under section 111(1)(g). And I might say further, that there have been court orders made by Marshall J in respect of the operations and the terms and conditions that are to apply. There has been no suggestion to Marshall J that those orders aren't being complied with.

PN3429

And if there was a dispute about the operation of the small boning room, leaving aside occupational health and safety issues, it is quite within the scope of the union to bring that dispute to the Commission under either section 99 or the disputes procedures in the 1992 agreement, or the dispute procedures in the 2001 award. Now jurisdictional issues and I deal with them as I understood them to be put. There was firstly a suggestion made that the union in its log of claims in 1992, did not make a claim for wage rates for anyone other than piece workers. In my submission, when one looks at that log it very clearly refers to making claims in respect of people employed on time work.

PN3430

It does refer to the fact that people employed on time work have to be agreed with the union. In my submission the terms and conditions of time workers are well within the scope of that log. Secondly, there is an argument raised that the industrial dispute is a different industrial dispute than in 1992 and/or does not include tallies in the meat industry. Now various submissions were made about Pacific Coal, and indeed a submission was made that 89A applies to new disputes, and that finds some support in what Gaudron J said. I am not sure it finds support in what other judges said.

PN3431

But even if that was the case, we say it doesn't take the respondent union anywhere. In my submission there is a dispute, in 1992, that can be dealt with by the making of an award under the Workplace Relations Act. That leads to the operation of the 2000 award. Now various submissions were made about it being binding on O'Connors. Now the Commission will have seen Conti J's decision where he really attached weight and drew a distinction in respect of the binding nature of awards where they are - a person is bound directly or bound by membership of an organisation.

PN3432

He also drew a distinction between general awards and awards that were intended to apply in the place of general awards and both those matters were very crucial in Conti J's reasoning. We submit that this application is clearly binding on O'Connors, not as a member of an organisation, that addresses that issue, and secondly with regard to the intention of the Commission, clause 5 makes clear what we submit is the intention of the Commission in the making of an award. If there is no such term as clause 5, then there may still be debate about Conti J's reasoning.

PN3433

What is the intention of the Commission in making an award in 2001. In the absence of clause 5 it may be argued that the intention is not clear to exclude the operation of the 1992 agreement. In my submission, this particular clause is not a question of power. It is a matter of the Commission saying in case of doubt it is clear that the Commission is not making an accepting order under section 149(1) of the Workplace Relations Act and the consequence is the award has the full and binding effect stated in 149(1)(a) to (d).

PN3434

Now this award and this application are under the Workplace Relations Act. If this award was made, it is an award made under the Workplace Relations Act. The argument is as to what operation can it have. We say it can have the operation that it has on its face. We also say, and in a way this is where the argument becomes slightly put on various levels but not clearly by the union, that in a way the question is this. Assuming that the 1992 agreement continues in operation under the 1992 Act, and apparently not for all purposes but - presumably then it continues in operation consistently with 134J(3) which refers to 148.

PN3435

So therefore the 1992 agreement continued in force pursuant to 148. The proposition is in a curious way, this. Assuming that to be the case, is the 2001 award an award order which comes within section 148 of the Industrial Relations Act? Now obviously, section 148 of the Industrial Relations Act contemplated future awards coming into existence, contemplated that the Commission might make awards in the future and we say section 148 of the Industrial Relations Act should be given its normal and obvious operation.

PN3436

Therefore, we say that the Commission has power and jurisdiction to make an award in these terms and it has the effect that we say it has in clause 5. Now a couple of aspects of this. Firstly, my learned friend makes the submission that this is an abuse of process, the seeking of an award under the Workplace Relations Act is an abuse of process. I think he said we were indirectly seeking what we should be seeking directly. Then he has made reference to Gleeson J in Pacific Coal, but the Commission will recall what Gleeson J said in paragraph 29:

PN3437

It is not permissible to do indirectly what is prohibited directly.

PN3438

Now on my submission, in no sense can it be said that the applicant is prohibited from seeking an award under section 111(1)(b) and indeed the Act encourages the making of awards such as the one we seek. Another aspect is the amendment to the tallies. Section 89 - I am not quite sure the way this is advanced or what is to be made of it, but it does presumably raise some sort of argument if we need to go to that level, which I don't think we do, about crude rocks. That is - this was an amendment that came into effect in March 2001. Our application and the submissions in support of it and various dates all took place before that.

PN3439

Indeed, if it were necessary, we would say that we were entitled to have our application dealt with for an award on the basis of the law as it stood when we made our application and I am not sure we need to get into those areas of the law but we would say that that analysis would be consistent with the Westrail case and CEPU v Telstra (1998) 79 IR 31. Now if I could go on. Section 111(1)(g), that is raised against us, is the lockout. That ceased in November 1999.

PN3440

SENIOR DEPUTY PRESIDENT POLITES: Mr Parry, if you are going on to another subject, can I just ask you one thing about the matter you were just leaving. As I apprehend it, at least one of Mr Rothman's arguments is this. The Commission is precluded from exercising any arbitral power, except as to an allowable matter. There are a number of matters in the 1992 agreement which are clearly not allowable. We are therefore precluded from making an order which would set those matters aside. I mean, that is reducing it to very simplistic terms, but as I understand it, that is the argument.

PN3441

MR PARRY: Well we say this award would have operation under section 148 of the Industrial Relations Act. That is, if it deals with the same matters and we say this award does deal with the same matters. So we don't need to get into that particular form of analysis. Section 111(1)(g) - the lockout ceased November '99. Section 127 has been complied with. It is said that we continued the conduct past the time when the Full Court said that the 1992 agreement applied. Of course, what is omitted there is the making of a 2000 award which obviously led to further argument before Conti J.

PN3442

Can I say that the conduct regarding the small boning room I have dealt with. I should say that just about every conceivable issue that has been possible to raise is contained in the pleadings I think, in the proceedings before Marshall J, but we say that we are complying with the orders of the Court. It hasn't been, as I understand it, suggested otherwise. Well, if it has been suggested otherwise as my learned friend tells me, it certainly hasn't been raised before Marshall J and there haven't been any contempt proceedings so we take issue with that.

PN3443

SENIOR DEPUTY PRESIDENT POLITES: It might have been raised in the evidence of Mr Ross though, mightn't it? There was at least a suggestion put to him that he was being paid less than an AWA worker might be paid and he might have assented to that proposition I think.

PN3444

MR PARRY: I attempted to explore that and we ended up in a debate about the operation of the 1992 agreement, so the evidence became a little unclear. Now, if it is to be suggested we are not paying Mr Ross in accordance with the order of Marshall J, I would like to have that clearly put, because that would be a grave concern to my client, if we were not complying with the order of Marshall J. And if that is to be suggested, if Mr Ross - and I am not sure his evidence precisely says that, if that is the case we would want to be addressing that immediately. That is not a situation that we certainly want prevailing.

PN3445

And if that is a submission and position that is seriously put, then we would want to address that immediately. Now a number of other matters. Firstly, there has been a few - during my learned friend's submissions, every now and then he has put in a few propositions which I am not absolutely sure of. One was - and I am not sure I wrote this down properly, but there was an undertaking that we wouldn't enter into AWAs or certified agreements. Now there has been an undertaking about AWAs, but my instructors here today and my clients aren't aware of an undertaking given - not to any court about not entering into certified agreements.

PN3446

It has been said - the bargaining onuses have been withdrawn so it can be said that there is no current intention to enter into a certified agreement, but I don't think it can be said there is an undertaking not to. Now as always happens at the end of these cases after all the evidence is before it, the Commission asks questions, things are said about numbers of people and Mr Rothman has said that there is 30 out of 200.

PN3447

The Commission has before it the witness statements of the applicants and there was 30 applicants in the Federal Court and there was 30 applicants originally, but on my instructions, three of them have resigned, so there is 27 applicants. And of those, on my instructions, half of those remaining are tradesmen and half of them are labourers. Now, those are my instructions. And the persons on AWAs previously employed, on my instructions, there is some 47 - around that number that were previous employees who were on AWAs. Now, I can't put that higher, on my instructions, but that is what they are.

[2.50pm]

PN3448

Now, this application is an application for a safety net for all employees and that is all employees, both on AWAs and on the 1992 agreement. Now, I am not sure whether the 1992 agreement will apply in the event that AWA employees are no longer on AWAs. My learned friend says he hasn't - might apply, if so, we must resolve it by agreement. That would mean that - we say, we have reached agreement, we have reached AWAs residually. They might not have a safety net, they might be on the 1992 agreement. And our submission is, it is appropriate that those employees have a safety net.

PN3449

This application doesn't just deal with the 27, we say, that remain on the 1992 agreement. Now, Commissioner Simmonds raised with me the decision of the - on 1 September 2000, which is print S9669. If I can provide a copy of that to the Commission and - I am now going to be dealing with the proposition, if the Commission is minded, to deal with these 27 employees in a way that preserves certain of their terms and conditions. Now - and these are the sort of matters that were raised in the paid rates review case about maintaining earnings.

PN3450

And were also raised in this particular print that Commissioner Simmonds referred to. Now, of course, the complication is, as my learned friend said, the existence of the tally system. That is always a complication in preservation of terms and conditions.

PN3451

COMMISSIONER SIMMONDS: Not just that. It is always a complication.

PN3452

MR PARRY: It is always a complication in a way - paid rates provision for an award in another industry - it might be easy to say, maintain the rate.

PN3453

COMMISSIONER SIMMONDS: My thought was a bit more flippant. The tally is always a complication.

PN3454

MR PARRY: I am not very flippant on Friday afternoon, Commissioner, I am sorry. It is always a complication and it is particularly a complication when one is dealing with the principles in the paid rates review about not using this - not using an application to change a paid rates award to a minimum rates award as a device for reducing wages and conditions. Now, O'Connor's recognises what is in the paid rates review and recognises what is in this decision. Now, clearly, that raises the option of dealing differently with these employees who are on a tally system prior to the commencement of the safety net provisions.

PN3455

And, indeed, I think, as this print indicates, I think it is in paragraph 3, that the matter that was before Commissioner Leary - the second matter concerned - for the protection to be accorded to the earnings enjoyed by current employees of respondents to the award when the new provisions commenced to operate. Now, it is then, I think, particularly Commissioner Simmonds was drawing our attention to paragraph 11 and onwards, for protection to be afforded to current employees. I am not going to read that to the Commission. It does refer back to the Federal Meat Industry decision about protecting overall entitlements to pay.

PN3456

And accepting, I think, about halfway through paragraph 12:

PN3457

We accept the new provisions should suffice generally to produce pay levels that will match or exceed those that were associated with the system in operation prior to the commencement of the safety net provision.

PN3458

And for that reason we are prepared to allow the new provision to operate for a period of time and then to re-assess the position on application. Then it speaks of overall entitlements to pay. Now, it is all very carefully worded to concentrate on pay and it very particular. Now, we would seek that there be an award made that it include clause 5 because that will avoid ambiguity and uncertainty about the effect of the award. Now, regarding those 27 employees, they can be broadly defined as those employees who immediately before the coming into operation of the order, were working on a tally system under the 1992 Act.

PN3459

Now, in respect of those employees, the problem is this. You can't just apply section - the sort of approach that is anticipated in print S9669 because, immediately before the commencement of the award, those employees would be receiving a rate which would argued, but which would be said to be, not the rate that they would have been receiving under full tally under the 1992 agreement. So, you would have to - so it would be a more complicated exercise to work out what should be preserved for those employees.

PN3460

Now, another complication is that the injunction is continuing to operate and, as I understand the law, that injunction will override the - an order of the Commission.

PN3461

MR ROTHMAN: Can I just rise at this point. I don't understand my friend's - now, in reply - I don't understand that this Commission is dealing with an application other than the ones that have been acknowledged. If there is another application of which I am unaware I would like to know about it. As I understand it, the only application that is before the Commission, is the making of an award which makes O'Connor's respondent to the FMIPA and purports in clause 12 thereof to do away with the '92 agreement. Now, if my friend is now going to another application, we don't know about it.

PN3462

SENIOR DEPUTY PRESIDENT POLITES: Well, Mr Rothman, I don't think he is going to another application. He is seeking to answer a report raised by Commissioner Simmonds during the proceedings.

PN3463

MR ROTHMAN: In chief.

PN3464

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN3465

MR ROTHMAN: Not in reply, not when I was on the - - -

PN3466

SENIOR DEPUTY PRESIDENT WATSON: I am not sure that it wasn't put to him, Mr Rothman.

PN3467

MR ROTHMAN: It wasn't put to me.

PN3468

SENIOR DEPUTY PRESIDENT WATSON: Well, very well. Mr Parry, it may not arise.

PN3469

MR PARRY: It does, because our primary position is we are seeking this and I am responding to Commissioner Simmonds and I am responding to the various - the propositions that are raised in S9669 and and how they can be dealt with. As I understand Commissioner Simmonds, he drew my attention to it so that we could say, what our reaction to it was. And our primary position is that we want a safety net award because we want people operating on the similar systems. If we can't get a safety net award - and there needs to be a particular preservation of the position of the 27.

PN3470

I am trying to at least assist the Commission with what - some submissions with regard to that.

PN3471

SENIOR DEPUTY PRESIDENT WATSON: Yes, well, Mr Rothman, your rights to reply in relation to this matter are reserved. You can sit, Mr Parry.

PN3472

MR PARRY: I think it is just fair that we put our position - - -

PN3473

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN3474

MR PARRY: - - - on S9669. And in a curious way, I am not in disagreement with what Mr Rothman said about - if - you might recall that he said in his submissions at the end. You are against us on power and discretion if you make an award. Before you make it in an order we all should come back here and argue about its terms. That is the sort of proposition I am dealing with. What I say in respect of that is that an award should be made which deals with the generality of the position of O'Connor's.

PN3475

But with regard to these 27, for the reasons I have identified, it might be that there are some principles or whatever is set down in the decision, and there can be then submissions made about the form of any particular terms and conditions such as contemplated in S9969 at that stage. Because, as at present, we have an injunction. We simply say that the position of those employees is a complicated one, and rather than them being made subject to the award simplicitor, we would simply say that their position should be reserved and we come back and debate their terms and conditions.

PN3476

And perhaps at that time we can deal particularly with S9669 and the considerations that might arise. I think that the secondary position that - there seems to be an obsession that we are simply doing this for the purposes of the 27 employees. This is to get a safety net award for all our employees which doesn't exist at the present. And we shouldn't have the tail, in effect, wagging, what we say, is the dog. We are seeking an award in respect of all the workforce and I don't understand any of the arguments that have been raised, at least, on discretionary grounds, oppose it.

PN3477

Now, to bring the Commission up to date with the events in the Federal Court, it is Conti Js declarations. There is correspondence going on at present about orders, about what will be paid in backpay and hopefully that is going to be a matter that will be resolved and there will be consent orders made and backpay made. I also indicate that we have advised the union that there will be an appeal on Conti Js decision. With regard to Marshall J, there are currently - there was a directions hearing this morning.

PN3478

Mediation has been proposed and the parties are looking at dates in August for mediation and thereafter there are dates fixed for hearing in December and February. That is the sort of long and convoluted future that that litigation holds. If the Commission pleases, those are our submissions.

PN3479

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Parry. Mr Rothman, anything in relation to 111(1)(g) matters?

PN3480

MR ROTHMAN: It is difficult to differentiate them but I will deal with what truly arises, that is, you know, in reply. My learned friend said there is no suggestion of the orders of Marshall J are not being complied with. Your Honours have had the Full Court transcript in exhibit R11 which - in which the discussion, inter alia, goes between the bench and my learned friend's clients, or those representing my learned friend's clients, in or to that effect. The - as I understand my learned friend's submission, he categorised my submission as being the submission that made - that 89A deals with new disputes only.

PN3481

That was a passage in the judgment to which I drew the Commission's attention but I don't know that I ever made that submission. But I think I made a submission to the opposite effect. The - and also made a submission that I had said that the FMIPA was binding on O'Connor's. What I said was that, but for the '92 agreement, the FMIPA was binding on O'Connor's. So that anyone who is not bound by the '92 agreement - so that, in one sense, clause 5 is the only operative section of the award.

PN3482

The other matter to which my learned friend went is the issue of the '92 agreement continuing in force pursuant to section 148 and not doing indirectly what is prohibited directly, etcetera. Now, with respect to my friend - and I don't say he deliberately did it - but he has confused two different arguments - in fact three different arguments, but two in particular. We didn't say and we don't say that the injunction referred to by Gleeson CJ about not doing indirectly what you can't do directly, relates to the abuse issue. The abuse issue is a totally different concept.

PN3483

What we said in relation to abuse was, this was a classic - in the law Court sense, abuse of process, in that what you are seeking - what one is seeking to achieve is an indirect effect rather than a direct effect. And that was a discretionary argument that was put in relation to the nature of the application that my learned friends have put. The other argument was a different argument and that relied upon the injunction or the maxim to which Gleeson CJ related. And that was the operation of the proposition that there are specific provisions in the various Acts which deal with, and prescribe specific conditions on, the manner in which an agreement of this kind can be terminated.

PN3484

And those provisions lay down direct prohibitions on the termination of agreement otherwise and accordance with those provisions. And what we were saying was, that in drawing on the maxim recited by Gleeson CJ that the Commission couldn't, as a sidewind, with an indirect consequence do that which would, if it were sought to be done directly, be prohibited. That was the difference between the two arguments. The third of the arguments was the argument about the 1992 agreement continuing in force pursuant to section 148.

PN3485

Therefore you can make this award and the award has the effect under 148. Now, I have to say that is an argument I didn't deal with because it wasn't put in that way. That argument pre-supposes that you could make this award without clause 5 and it would have the effect that my learned friend says. That is a fundamentally different proposition. If that were right you wouldn't need clause 5, you could take it out and my learned friends are correct. But my learned friend's - or my learned friend's client is not confident enough of that argument because he wants clause 5 anyway.

PN3486

But the answer to that is two-fold, firstly, the underlying question to that is is an award made under the 1997 - I will call it that - the Workplace Relations Act - is an award made under the Workplace Relations Act, an award for the purpose of section 148(1) of the Industrial Relations Act. And that brings into account - and is it dealing with the same subject matters. And that brings into account a raft of arguments about whether the limitations that are imposed by the Workplace Relations Act, or by the legislature through the Workplace Relations Act, on the role of the Commission and its jurisdiction to deal with certain subject matters, would preclude section 148 being operative under the Industrial Relations Act on - from an award made under the Workplace Relations Act.

PN3487

In other words, once you excise from the Workplace - once you excise from the function and jurisdiction of the Commission the capacity to deal with subject matters which actually resolve the dispute between the parties, is 148(1) under the 1992 Act - can we take it that 148(1) or the legislature in 148(1) of the Industrial Relations Act had in mind that kind of an award when one was dealing with 148(1). And that is an argument, I have to say, is an extraordinary complicated argument. In my respectful submission, it doesn't - but it is not an argument that has arisen in this case and it is not an argument that arises on my learned friend's application.

PN3488

It might arise if my learned friend's application were made without clause 5 or if he had made the application without clause 5 and it might arise if in the end the effect of that application was sought to be debated before the Commission. But that is not an application with which the Commission must deal. The - I know Commissioner Simmonds' comment was made flippantly and I am flippant all the time, Friday afternoons or otherwise, but, there is certainly no evidence that the '92 tally - the tally in the '92 agreement was a complicating factor or was difficult to work or was in any way a hindrance to productivity. In fact the evidence is to the contrary. And - - -

PN3489

SENIOR DEPUTY PRESIDENT POLITES: The flippant remark might have been the broader observation about tally - - -

PN3490

MR ROTHMAN: I am sure that is right. But in terms of the actual case here I was using the flippant remark as an excuse to put that little debating point in. Nevertheless, my learned friend then says, well, the only way to describe these people - these employees is those working on a tally system prior to the making of the award. I have to say, that raises complications that even I am loath to get into, for a number of reasons. One, the first of them is, the question about whether there are - whether the labourers are working on a tally or whether they are working on time work.

PN3491

The second is whether the people who are working on the kill floor and aren't separated out into the separate boning room are working on a tally. The third is whether or not any of them are in truth working under the tally under the '92 agreement. The - and there has been correspondence between my learned friend's client and mine as to that situation. The reality is that there are two classes of employees. Those that are covered by an AWA and those that are not. And that essentially is the situation. Any other description begs the question.

PN3492

MR PARRY: I accept that.

PN3493

SENIOR DEPUTY PRESIDENT POLITES: I thought that is where I started when I asked the question, Mr - - -

PN3494

MR ROTHMAN: I think that is right, your Honour. I am loath to agree with any bench, your Honour, at any time, but those are the matters that are raised. Your Honour, I don't think it is a matter that really will impact upon the decision that your Honours would make but my understanding of the discussions that occurred this morning and before his Marshall J, were the proposals for mediation - there was agreement there ought be mediation. The timing of it has not yet been agreed. It maybe in August. It maybe earlier. It maybe later.

PN3495

Marshall Js - the hearing before Marshall J was vacated in August for the purpose to facilitate that mediation. The mediation proposed is, as I understand it, a mediation that goes beyond the matters that are simply before Marshall J. The - nevertheless, his Honour, continued the hearing dates in November, some three or four days in December and in February, notwithstanding that. And I should add that the mediator has not yet been decided or agreed in any event. Notwithstanding that, what my friend says is, on that question, accurate.

PN3496

There has been correspondence about orders which implement the judgment of Conti J and the implementation of those orders would be by consent which of course would reserve - if that occurred - would reserve rights of appeal and the like, on the questions decided by his Honour. There is also, as I said, the issue of mediation which goes beyond it. It is fair to say that the mediation if it goes in accordance - I withdraw that. If the mediation were to be successful it would need to deal with matters that would necessarily cut across that which the Commission is now being asked to do.

PN3497

And in some respects what the Commission is being asked to do might cut across that. That raises issues as to whether or not the Commission ought hand a decision down pending the mediation. However, at this stage I don't have any instructions to put anything other than what I have put. And if those instructions change, well, then, presumably it can be listed before a single member at short notice, or something of that kind.

PN3498

SENIOR DEPUTY PRESIDENT POLITES: Yes. An application to relist the matter would be the appropriate course, I think, Mr Rothman. Whether it might be a single member or all of us is a matter we can determine.

PN3499

MR ROTHMAN: Right.

PN3500

SENIOR DEPUTY PRESIDENT POLITES: But I might say this. If of course there were agreement between the parties that we shouldn't hand down a decision that should be communicated - - -

PN3501

MR ROTHMAN: Yes, your Honour.

PN3502

SENIOR DEPUTY PRESIDENT POLITES: - - - as quickly as possible.

PN3503

MR ROTHMAN: Your Honour, one of the issues that was very loosely discussed - and I don't know whether I should raise this - I withdraw that - was the question that the most convenient or appropriate mediator might be a member of the Commission, but, we can take that up with the Commission. Otherwise, I don't say a member of the Commission as presently constituted, I think that would be inappropriate but - - -

PN3504

SENIOR DEPUTY PRESIDENT POLITES: Well, that is a matter that can be raised with either the panel head or the President, whichever those instructing you and those instructing Mr Parry, think appropriate.

PN3505

MR ROTHMAN: If the Commission pleases.

PN3506

SENIOR DEPUTY PRESIDENT POLITES: Yes, thank you. We thank counsel for their submissions. We will reserve our decision. If there is to be an application it should be - to relist the matter for any basis, it should be directed to my associate. And, as I have indicated, if the parties were in agreement that we shouldn't hand down a decision, then that matter should be communicated to my associate as expeditiously as possible. We will adjourn on that basis.

ADJOURNED INDEFINITELY [3.18pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #J8 TRANSCRIPT OF PROCEEDINGS BEFORE MARSHALL J ON 12 FEBRUARY PN3380
EXHIBIT #J9 BUNDLE OF TRANSCRIPTS BEFORE PN3380
EXHIBIT #J10 NOTICE OF MOTION FILED IN FEDERAL COURT ON 25 JANUARY PN3381
EXHIBIT #J11 DECISION OF MARSHALL J HANDED DOWN ON 12 FEBRUARY PN3397