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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8205 4390 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
O/N 8813
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER WHELAN
C2001/1244
APPEAL UNDER SECTION 45 OF THE ACT
BY THE EMPLOYMENT ADVOCATE AGAINST
THE DECISION OF VICE PRESIDENT McINTYRE
AT MELBOURNE ON 9 FEBRUARY 2001 IN
C NO 35700 OF 2000 RE APPLICATION TO REMOVE
OBJECTIONABLE PROVISIONS
MELBOURNE
10.07 AM, THURSDAY, 9 AUGUST 2001
Continued from 29.5.01
PN586
MR A. CAVANOUGH, QC: I appear with my learned friend, MR A. LINDEMAN for The Employment Advocate.
PN587
JUSTICE GIUDICE: Yes, thanks, Mr Cavanough. Just - yes, Mr Bromberg?
PN588
MR M. BROMBERG: I was just going to make an appearance if that is necessary, your Honour. I continue to appear for the CEPU.
PN589
JUSTICE GIUDICE: Yes. Since we've started this process.
PN590
MR S. AMENDOLA: I appear on behalf of the Minister, if the Commission pleases.
PN591
JUSTICE GIUDICE: Thank you, Mr Amendola.
PN592
MR S. CRAWSHAW SC: Your Honour, I seek leave to appear with my learned friend, MS R. DOYLE, for the Australian Workers Union, which in turn seeks leave to intervene in these proceedings.
PN593
JUSTICE GIUDICE: Yes.
PN594
MR CRAWSHAW: I don't know whether your Honour wants to deal with that now, or with the matter that your Honour was about to - - -
PN595
JUSTICE GIUDICE: I was just about to say something, so I will deal with it. Since we adjourned we issued a statement in directions on 15 June with which you are all familiar and we sought submissions on two questions. That has prompted a number of submissions which for the most part don't address, or at least don't address directly the issues which we invited submissions on. The submissions we have received include a submission from the CEPU which we take in effect to be an application to rescind the directions and also the application from Mr Crawshaw's client to intervene.
PN596
We thought in the circumstances the best course was to re-list the matter so that people may have an opportunity to put oral submissions on any matters arising from our statement of 15 June. Mr Crawshaw, is it convenient to deal with your application first?
PN597
MR CRAWSHAW: Yes. Yes, our - - -
PN598
JUSTICE GIUDICE: Have you had any discussions with the other parties?
PN599
MR CRAWSHAW: I have had brief discussions this morning.
PN600
JUSTICE GIUDICE: Yes, well, is there any objection to your application?
PN601
MR CRAWSHAW: I don't think so, your Honour - - -
PN602
JUSTICE GIUDICE: Any objection to Mr Crawshaw's - no?
PN603
MR CAVANOUGH: It is a matter for the Commission.
PN604
JUSTICE GIUDICE: Yes. Well, on the basis of the material that you have forwarded to us, Mr Crawshaw, we will grant your application to intervene and I take it your application to appear as counsel is not opposed so we grant that as well.
PN605
MR CRAWSHAW: If your Honour pleases. Is it convenient then that I go first and dealing with the matter that - at least everyone seems to have dealt with this point - as to whether the Commission should go any further as it were - - -
PN606
JUSTICE GIUDICE: Yes, by all means.
PN607
MR CRAWSHAW: There seems to be furious agreement about that point. We have a written submission on that matter and I don't seek to trouble the Commission for any length of time in oral - - -
PN608
JUSTICE GIUDICE: Is this the document which was filed?
PN609
MR CRAWSHAW: No, your Honour, the document that was filed really went to why we should be granted intervention.
PN610
JUSTICE GIUDICE: Yes.
PN611
MR CRAWSHAW: This document goes to the separate point as to why the Commission should not embark on the exercise of the Commission as stated that it is inviting submissions on.
PN612
JUSTICE GIUDICE: Yes. I think we might mark that - - -
PN613
MR CRAWSHAW: Yes.
PN614
PN615
MR CRAWSHAW: We tried not to be too repetitive of the submissions of the CEPU and The Employment Advocate and, in fact, we say in paragraph that we support those submissions. We then submit that there is no power in section 45 to consider the matter on appeal - that is in paragraph 3. We then go on to say that the:
PN616
The Commission on appeal does not exercise a supervisory jurisdiction.
PN617
And we refer there to the litigation that took place in the coal and allied matter in relation to the Hunter Valley No 1 Mine. The Commission will recall that that matter was the subject of constitutional writs to the High Court. It was remitted to the Full Federal Court who found that the Commission had fallen into a jurisdictional error. That result was ultimately overturned on appeal to the High Court. The point we are making here is on the question of supervisory jurisdiction where the Full Court, I think amongst many other things, said that:
PN618
An appeal bench does not exercise supervisory jurisdiction.
PN619
They suggested, your Honour, the President had somehow done that. The High Court on the contrary said your Honour had not done that, but didn't demur, but rather agreed with the proposition that on appeal a Full Bench does not exercise supervisory jurisdiction. We then go on to submit that if the Commission was to express its opinion on this matter as to whether the clauses fall foul of section 170LI, it would be an exercise of judicial power in the circumstance of this case. We deal with that proposition in paragraphs 5 to 7.
PN620
We say that what is involved here is in a sense a collateral attack, though that is probably putting it a bit highly, because the position here is that no one is relying as an essential part of these proceedings on the validity, or otherwise, of clause 14.3. The proceedings involve an attack, if you will, under the Freedom Of Association provisions. There is no attack made and no attack, as we have submitted would be possible, on the validity of the clause through those proceedings, or through the appeal. So it is not necessary at all to consider the validity of the clause as it would in the normal circumstance of a collateral attack.
PN621
Now, we then go on to make what really are alternative submissions about section 170LI, that properly construed it does not prohibit an agreement having, as it were, a combination of matters pertaining to the relevant relationship and matters not pertaining and that in any event we submit that if it is proper to consider those matters it should be in the normal way through an examination of evidence and submissions and we sought support, the general proposition put by the CEPU, that if one was to do it in the normal way and afford natural justice to all those involved, one would have to notify all those parties to the agreement.
PN622
JUSTICE GIUDICE: Yes.
PN623
MR CRAWSHAW: And finally we make a point at the end that if you are against it - - -
PN624
JUSTICE GIUDICE: Can I just ask about that point? I think that cropped up in somebody else's submission as well.
PN625
MR CRAWSHAW: Yes, I think it was in the CEPUs submission.
PN626
JUSTICE GIUDICE: The - all of the parties, I take it, have been notified of the proceedings?
PN627
MR CRAWSHAW: All the parties to the agreements?
PN628
JUSTICE GIUDICE: Yes.
PN629
MR CRAWSHAW: I didn't - I wasn't aware of that, your Honour.
PN630
JUSTICE GIUDICE: I think that is the case. Am I wrong about that, Mr Cavanough?
PN631
MR CAVANOUGH: No, I think all the parties to the certified agreements were notified of the proceedings in the first instance - - -
PN632
JUSTICE GIUDICE: Yes.
PN633
MR CAVANOUGH: - - - but I don't think there has been any subsequent notification, say, to the employers of the turn the case took on 15 June.
PN634
JUSTICE GIUDICE: Yes, no, I understand that.
PN635
MR CRAWSHAW: Really, in relation to our interest, what we are really worried about is that this has been dealt with as a general matter. The Commission - well, as I understand it - if it goes on to consider this section 170LI issue, deal with it in a general way without regard to any individual agreement and we, as we put, have one agreement in this category. Any expression of opinion that the Commission might make will apply equally to my client's agreement, as it does across the board to the CEPU agreements.
PN636
JUSTICE GIUDICE: What sort of evidence would be necessary? I mean, what sort of facts might be relevant in determining the issue of whether the provision is - - -
PN637
MR CRAWSHAW: Well, it would be fact - sorry, your Honour - it would be facts going to why - I suppose it could go to how the agreement was reached and the circumstances that led to this clause being inserted. It could also be facts going to the particular effect of this clause on the workplace in terms of the relationship between the employer and the employees. For example, one might have a workplace where if there wasn't such a clause there would be a - a resentment on behalf of employees that had contributed to the - the payment for the bargaining agent - being the union in this case - and if there wasn't such a clause that resentment could in turn affect the relationship between the employer and employees by the build-up of such resentment.
PN638
Matters such as that one could readily think would be relevant in an evidentiary way if one had regard to the individual workplace, but that is perhaps jumping ahead a bit. What we say in the last paragraph is that if the Commission does go ahead and consider these matters in the way that the Commission has foreshadowed in this general way, we would also seek leave to make submissions on that matter and we would hope to be as long on that matter as we have in addressing you on the preliminary point.
PN639
JUSTICE GIUDICE: Yes.
PN640
MR CAVANOUGH: If the Commission pleases.
PN641
JUSTICE GIUDICE: Yes, I should say, Mr Crawshaw, that we have not rescinded our directions. We have indicated the matters on which we wish to have submissions and all that has been submitted we will take into account, of course.
PN642
MR CAVANOUGH: Yes.
PN643
JUSTICE GIUDICE: But those directions still stand so if you wish to have an opportunity to make further submissions about those two issues, then, now is the time.
PN644
MR CRAWSHAW: Well, perhaps can I suggest is a convenient course that the Commission hear anyone else on the first - - -
PN645
JUSTICE GIUDICE: Yes, by all means.
PN646
MR CRAWSHAW: - - - issue as it were and then we are quite happy to go first if - - -
PN647
JUSTICE GIUDICE: It could be done in writing as well.
PN648
MR CRAWSHAW: Yes, well, we have - we have a document, sir.
PN649
JUSTICE GIUDICE: Yes. Any volunteers for the next protagonist?
PN650
MR CAVANOUGH: Perhaps it falls to me - - -
PN651
JUSTICE GIUDICE: Yes.
PN652
MR CAVANOUGH: - - - as the counsel for the appellant. We do not seek to depart from what we put in writing. The Employment Advocate has particular statutory roles and particular statutory interests, but in any event our essential position is that it is not appropriate to be making submissions on the 170LI order on behalf of The Employment Advocate, if the only purpose of there being taken is to determine whether or not leave to appeal should be granted.
PN653
We submit that if for instance the Commission had it in mind to move of its own motion in relation to the certification of the agreements, something like that, and we were notified of that then we could seek instructions as to what, if any, submissions it would be appropriate for us to direct to the LI issue, but at the moment, given that the only thing that has been foreshadowed by the Commission is the possibility of, if you like dismissing our appeal on the strength of arguments along these lines, we propose to put no further submissions on that and stand on what we said.
PN654
SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Cavanough, what do you say the Commission could move of its own motion to do?
PN655
MR CAVANOUGH: Well, I don't even make a positive submission that the Commission necessarily could do it but, I mean, the sort of things that have perhaps occurred to me just in looking around at that issue are possibly to act under section 111(1)(f) with respect to the certification decision that was made by Deputy President Williams in relation to these certified agreements, or any other certification decision acting pursuant to 111(1)(f) and section 33(a) I think it is of the Act - that may theoretically be possible. Then there is another question as to whether that would involve necessarily the setting aside of the decisions as a whole and as to whether any party would want to move for that - or want to have the Commission move of its own motion for that as distinct from making some decision that affected only the particular clauses.
PN656
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, okay.
PN657
MR CAVANOUGH: There are some - I notice for instance in the Kainish Freighters case, the Commission at a Full Bench level presided over by the President in the end by consent made an order quashing a certification decision that had been made earlier in that proceeding and there have been some other cases - Deputy President Williams himself in 1993 decided that he had power to act of his own motion to set aside a certified agreement, but decided in the circumstances of the case not to do it.
PN658
Of course, there are discretionary considerations, no doubt, would be taken into account and no doubt there would be discretionary matters that would be urged all along the bar table one way or the other in relation to that, but if there be a substantive proposal of that kind as we foreshadowed in our submissions, well, we are happy to obviously assist the Commission in every way we can by obtaining instructions as to what, in our statutory shoes, we feel it is appropriate to urge one way or the other, if anything, in respect of such a motion, but absent the Commission acting of its own motion we are in agreement with what has been said by others as to the inappropriateness of the LI issue being taken into account in respect of the grant of leave to appeal.
PN659
SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Cavanough, if in the County Court, or Supreme Court there is an action on a contract - - -
PN660
MR CAVANOUGH: Yes.
PN661
SENIOR DEPUTY PRESIDENT KAUFMAN: - - - and both parties are relying in some respect on the contract - - -
PN662
MR CAVANOUGH: Yes.
PN663
SENIOR DEPUTY PRESIDENT KAUFMAN: The Court forms a view that the contract is void because it is contrary to public policy. It might be a gaming contract or something of that kind - - -
PN664
MR CAVANOUGH: Yes.
PN665
SENIOR DEPUTY PRESIDENT KAUFMAN: The Court would presumably have the power simply to dismiss the proceedings. In fact, it would be bound to do so.
PN666
MR CAVANOUGH: Yes, there are principles that relate to - - -
PN667
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes - - -
PN668
MR CAVANOUGH: - - - the Court not giving its hand to enforcing an illegal contract.
PN669
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN670
MR CAVANOUGH: Yes.
PN671
SENIOR DEPUTY PRESIDENT KAUFMAN: Now, this is not a question of illegality, but there is potentially a similar sort of problem for the Commission if we form the view that the matter does not pertain - - -
PN672
MR CAVANOUGH: Yes.
PN673
SENIOR DEPUTY PRESIDENT KAUFMAN: - - - yet we are asked, at least by the respondents to endorse it.
PN674
MR CAVANOUGH: Yes, and I'm conscious of a case - the name of which I can't now recall - but in this sort of context in which the Commission said: the Commission is obliged to maintain the regularity of certification of proceedings and - - -
PN675
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, I think we've been directed to that.
PN676
MR CAVANOUGH: Yes. Certainly I'm conscious of that.
PN677
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, I'm not sure that I have. Yes.
PN678
MR CAVANOUGH: But as I say from our position, given that it has not been foreshadowed by the Commission yet that the Commission is minded to move of its own motion, just do anything about the certification, or about the certified agreement, but to do nothing other than dismiss our appeal, it is - - -
PN679
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but your submission is that even if we form the view that the matter does not pertain, there is nothing whatsoever that we can do about that. We must shut our eyes to that fact and say that is not an issue that arises.
PN680
MR CAVANOUGH: Unless the Commission moves of its own motion under those provisions that I mentioned. I agree with my learned friend, Mr Crawshaw to this extent, the Commission is not a Court and - - -
PN681
SENIOR DEPUTY PRESIDENT KAUFMAN: We can all agree with that.
PN682
MR CAVANOUGH: And so it only has such statutory powers as are laid down in the Act.
PN683
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN684
MR CAVANOUGH: But there are statutory powers in 111(1)(f) and 33 that might be available.
PN685
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN686
MR CAVANOUGH: But beyond them I'm unable to find any that would be available. There may be others, but I'm not aware of them, but if that is to be contemplated the parties, I would respectfully submit, need to be forewarned that that is in mind and - - -
PN687
JUSTICE GIUDICE: Well, we have given a warning so far on a couple of issues.
PN688
MR CAVANOUGH: Yes, but as I say, at the moment our understanding was that the sole thing that the Commission had in mind was the possibility that leave be refused on this basis and that didn't - - -
PN689
JUSTICE GIUDICE: Well, I think it is what - yes, we have asked for the course we should follow I think.
PN690
MR CAVANOUGH: Yes, well - - -
PN691
JUSTICE GIUDICE: And we have indicated the possibility of one course that is open to us.
PN692
MR CAVANOUGH: Yes, yes, but at the moment if the only course - as it appeared to I think all of us the only course the Commission was considering was the possibility of refusing leave on this basis and that in a sense puts all of us in an invidious position. As I think my learned friend, Mr Bromberg submitted in his written submissions, he has been called upon to argue contrary to his client's essential position on the 170LI issue and so would my client be.
PN693
SENIOR DEPUTY PRESIDENT KAUFMAN: But you don't have any other proposal as to what we should do? In fact, you submit we should simply determine the appeal.
PN694
MR CAVANOUGH: Yes, unless the Commission is minded to act under 111(1)(f) and - - -
PN695
SENIOR DEPUTY PRESIDENT KAUFMAN: But you don't ask us to act on our own motion?
PN696
MR CAVANOUGH: No, I don't ask you to because - obviously I don't have statutory standing to make an application for that. It is a matter for the Commission and in the circumstances, given the way the matter has proceeded to date, we don't actually ask that. Whether some other party will or not, I don't know.
PN697
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN698
MR CAVANOUGH: Our role is though to be concerned about objectionable provisions, as I understand it, and that is as far as we take it.
PN699
SENIOR DEPUTY PRESIDENT KAUFMAN: But do you go as far as saying that your position is that we do have the ability to act on our own motion and act under 111(1)(f)?
PN700
MR CAVANOUGH: I only say that as counsel who has had a look at it briefly in case that was raised. As counsel I can see no reason why the power would not be available, but I might be wrong about that.
PN701
SENIOR DEPUTY PRESIDENT KAUFMAN: Can I take you to paragraph 3 of the AWUs submissions. Mr Crawshaw says that: no appeal would have laid under section 45(1)(g), because there was no decision by the Vice President, or the Senior Deputy President really that he had jurisdiction. I was going to raise this and perhaps might invite Mr Crawshaw to reply to it at an appropriate time. I had in mind the Tweed Valley decision - the Tweed Valley Food Processors decision against Gross, which is reported at 65 IR at 393. Do you have a submission as to whether an appeal by a person with standing could be made under section 45(1)(g)? Yes, against the certification of the agreement. Or the agreement containing that clause.
PN702
MR CAVANOUGH: Well, except I suppose 45(1)(g) is in general terms. If there were some specific restriction on those who had standing to appeal against a certification decision, specific provisions would prevail over the general, it might be said, but I must say now that you have reminded me, I wouldn't want to be thought to be in agreement with paragraph 3 of my learned friend, Mr Crawshaw's submissions, if they are intended to say that there has to be an explicit, if you like, assertion of jurisdiction on the part of the Vice President before any fundamental jurisdictional matter can be considered by the Commission of its own motion, say, or in an application to move under 111(1)(f).
PN703
Most times jurisdictional errors are made without the party concerned necessarily having said anything about their jurisdiction, so that - perhaps my learned friend wasn't meaning to say anything to the contrary, but it might - when I first read it, I thought perhaps he was. So if in fact if the Vice President had no jurisdiction to make the decision he made because the certified agreement should never have been certified, well, 45(1)(g) is not to the point, I mean, if there is some other statutory basis for dealing with it.
PN704
SENIOR DEPUTY PRESIDENT KAUFMAN: What do you say as to an appeal against the decision to certify of Senior Deputy President Williams, would an appeal have lain against that under 45(1)(g)?
PN705
MR CAVANOUGH: Well, there are specific provisions - under 45(1)(g)?
PN706
SENIOR DEPUTY PRESIDENT KAUFMAN: (1)(g), that he exercise - purported to exercise jurisdiction.
PN707
MR CAVANOUGH: No doubt my learned friends will say this louder than I would, but I imagine that one would have to be mindful of 45(1)(e)(a)(a), that deals specifically with the matter of appeals against decisions to certify and it restricts the grounds on which such an appeal may be brought, so on the ordinary principle that the specific overrides the general, or generally speaking a specific is to be preferred to the general, if there is a limitation on the ground that can be taken and if there is a specific dealing with that particular form of decision and it's appellability, I suppose one would not read 45(1)(g) as being applicable to a decision of that kind.
PN708
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN709
MR CAVANOUGH: I am not familiar with the Tweed Valley case though, I'm sorry, and I haven't given the matter - - -
PN710
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, perhaps if you want to address that in writing at a later stage.
PN711
MR CAVANOUGH: Yes, thank you.
PN712
JUSTICE GIUDICE: Yes, Mr Amendola.
PN713
MR AMENDOLA: If the Commission pleases, my client put submissions in on 2 July, which we think did seek to address the questions asked by the Commission. There is nothing really further that we would wish to add I suppose. Your Honour, the President, asked some questions of my learned friend, Mr Cavanough, about: if the Commission was of a view that the sub-clause 14.3 didn't pertain, what should happen in those circumstances? We sought on the question of leave to appeal, and specifically address that in paragraphs 23 to 31 of the Minister's submissions, we would have nothing further to add to the submissions that we have put.
TAPE MALFUNCTION
PN714
PN715
MR BROMBERG: Your Honour, as I said, we are relying on our submissions in CPEU1. We also, if we may with respect, take up and add to our own submissions a point made by the Employment Advocate of paragraph 4, namely that the Commission's exercise and power pursuant to section 298Z is not at all conditioned upon the validity of the provision in question. That is made abundantly clear when one looks at section 298Z(5) which says quite expressly that even if the provision is at law void by reason by 298Y, the Commission's exercise of power under 298Z should take place if the requisite elements are made out.
PN716
JUSTICE GIUDICE: Sorry, could you just elaborate on that, Mr Bromberg?
PN717
MR BROMBERG: Well, if your Honour will turn to 298Z(5), your Honour will see that there's a definition of objectionable provision and that definition is then - that definition is applied in subsection 1 which sets out the nature of the application which might instigate the Commission's jurisdiction and it is notable that objectionable provision is defined as a provision that either require or permit or have the effect of requiring - permitting any conduct that would contravene this part, whether or not those provisions in any case be void because of 298Y.
PN718
So that the exercise of jurisdiction, your Honour, is not in any way conditioned upon the existence of a valid clause which is being impugned for reasons set out in 298Z or for considerations dealt with by 298Z. The jurisdiction here encompasses the possibility that the clause might be void in any event but still obliges the Commission to deal with it and deal with it under 298Z.
PN719
JUSTICE GIUDICE: Wouldn't the provision normally be void?
PN720
MR BROMBERG: I'm sorry, your Honour.
PN721
JUSTICE GIUDICE: Wouldn't the provision normally be void under 298Y? Perhaps I'm misunderstanding it. Isn't that why it has been taken out?
PN722
MR BROMBERG: 298Y provides that a provision in a certified agreement or in any industrial agreement is void if it breaches part 10A, is my recollection of it.
PN723
JUSTICE GIUDICE: Yes.
PN724
MR BROMBERG: So that it has no force whatsoever and what 298Z(5) is seeking to make clear is it does not matter whether at law the impugn provision - in this case 14.3 - is void. The Commission - - -
PN725
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, it is not so much that it does not matter, Mr Bromberg, is that it is because it is void, it should be taken out. Isn't that the other side of that coin, it should be taken out because it is void, not that it does not matter that it is void.
PN726
MR BROMBERG: No, no, with respect, your Honour. The application to the Commission is made under 298Z(1) and it says:
PN727
Where on application by a person mentions subsection 2, the Commission is satisfied that an award contains objectionable provisions, the Commission must vary the award so as to remove the objectionable provisions.
PN728
Now, if by reason of 298Y a provision in a certified agreement is void, then it is a nullity, it does not exist. What the provision is seeking to make clear is that that does not preclude the Commission from exercising the power to remove it, if in fact it offends 298Z. So the exercise of power by the Commission under 298Z is not premised upon the existence at law of a valid provision. That is a point that the Employment Advocate makes and we say it is a point that has force in a manner of which the Commission should deal with the question at issue.
PN729
We also note the submissions of the Minister and in particular at paragraph 18 where there's a suggestion that if clause 14 is invalid, the entirety of the certified agreements would fall because the Commission's jurisdiction to certify was never enlivened by an application which answers the description in section 170LI(1). Now, we don't say that we agree with that proposition but a possibility of that being so only serves to emphasise the inappropriateness of the Commission embarking upon any consideration of section 170LI without due and proper notification to all the parties to the certified agreements.
PN730
In other words, at the end of the day, the Commission may not simply in embarking in this process be considering the validity of clause 14.3. It may very well be considering the validity of the certified agreements themselves and that is added reason why a process in which consideration such as that is to be embarked upon would need to be done with an eye to natural justice. Now, can we say this, that this is not a case where an obvious and patent collateral invalidity excepted by all parties to be that might lead to the Commission disposing of an otherwise complex appeal by refusing the grant of leave.
PN731
Firstly, we don't know what the attitude of all parties are, only one party to one of 100's, perhaps 1000's, of parties to the certified agreements is before you and that is a CEPU. The CEPU will hotly contest the validity of the certified agreements and the validity of clause 14.3 if the issue raised by section 170LI is to be dealt with. The CEPU certainly does not concede invalidity and we would expect - although we don't know - that many if not all of the employers would take the same position, especially if the entirety of the certified agreement is at risk.
PN732
We say that there is a strong case for the validity of the agreements and there will be lengthy submissions and the possibility of evidence involved in the Commission coming to a view about that. This proceeding we say is simply not the vehicle for agitating the issue or any controversy that may be raised by reference to section 170LI. It is not to say that there won't be other vehicles. One might expect that there are other vehicles that may be more appropriate to deal with that issue standing in the queue.
PN733
JUSTICE GIUDICE: Would the Court be better placed to deal with the issue of who referred these proceedings of several issues arising in these proceedings to the Court? The Court does have broader powers in relation to some of these questions.
PN734
MR BROMBERG: Is your Honour thinking of, I think, section 46, the section 46 power that your Honour is contemplating?
PN735
JUSTICE GIUDICE: I'm sure there's a power there somewhere, Mr Bromberg.
PN736
MR BROMBERG: Yes.
PN737
JUSTICE GIUDICE: I think it is a question, isn't it?
PN738
MR BROMBERG: The Commission may refer a question of law arising in a matter before the Commission for the opinion of the Court.
PN739
JUSTICE GIUDICE: I haven't turned my mind to what question would be formulated precisely but your submission prompts the thought that if one were interested in getting some definitive answer on the question which by now it is clear your view troubles us. Perhaps that would be one avenue on which an answer could be obtained.
PN740
MR BROMBERG: But in our respectful submission, the ultimate question is to what end because the Court couldn't quash the agreements if it determined that that was appropriate, that the Court wouldn't merely answer the question of law. That answer would be taken up by the Commission but to what end to - - -
PN741
JUSTICE GIUDICE: I don't think that we've given any indication that we want to see the agreements quashed. Our concern is that there's a provision which on one view of it, is beyond jurisdiction which we are being asked to pass on. So I just make clear that that is the context in which this question arises.
PN742
MR BROMBERG: Yes. With respect, your Honour, I think your Honour said earlier that the Commission was being asked to endorse clause and in our respectful submission, that is not the case. Nobody asked the Full Bench to endorse the validity of the clause. The clause stands or falls as a matter of law. It is unnecessary - and all parties seem to be in furious agreement - it is unnecessary for the Commission, in our respectful submission, to deal with the question at all neither in a negative way or in a positive way. We certainly don't seek any endorsement from the Full Bench in that respect.
PN743
SENIOR DEPUTY PRESIDENT KAUFMAN: But what we are being asked to do, it seems to me, is to determine whether or not the clause which is arguable to be invalid as being beyond jurisdiction, is or is not objectionable under section 298Z. Is it in the public interest for us to consider whether or not such a clause is objectionable if it may have been valid in any case?
PN744
MR BROMBERG: Well, it is the public interests that our submissions went to, your Honour, because - - -
PN745
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, that is why I'm asking you the question.
PN746
MR BROMBERG: Yes, because we apprehended it and I think most of us at the bar table did that the Commission Statement of Directions were indicating that the Commission was only considering this issue for the purpose of the grant of leave. We might have been wrong about that but our submissions addressed the public interest and squarely as I - and in doing that, we seek to set out all of the public interest considerations that suggest that entering - going down this path is against the public interest and we spelled them out in a number of respects. We said - - -
PN747
JUSTICE GIUDICE: Mr Bromberg, can I just interrupt you for a moment because this issue has arisen before. The matters dealt with in our statement are in predominantly paragraphs 7, 8 and 9 and it is not true to say that the issues on which sought submissions were limited to whether or not we should grant leave to appeal. What was said in paragraph 9 was that we invited submissions on the 170LI question and that the course we should adopt in the event we found that the relevant clause is not about a matter pertaining, I think it is important that that is kept clearly in mind.
PN748
MR BROMBERG: Yes, your Honour.
PN749
JUSTICE GIUDICE: There's been some re-interpretation in some of the submissions of what we said.
PN750
MR BROMBERG: Well, your Honour, I suppose all that the parties have said - all the parties have - - -
PN751
JUSTICE GIUDICE: Well, most of them have said we should do nothing or alternatively we should forget about it.
PN752
MR BROMBERG: They have said that with uniformity but I suppose, your Honour, we may have misunderstood what the Commission intended and that may have been as a result of the sentence that then follows in paragraph 9.
PN753
JUSTICE GIUDICE: Well, I think it is clear enough what the words mean.
PN754
MR BROMBERG: That is so, your Honour, but I can only tell your Honour our understanding of them and what our submissions, as a result, sought to address and can I say that in part that approach was reinforced by our failure to identify and we say we can't identify any other course open to the Commission. The Commission does not have a supervisory function. The High Court made that quite clear in Cole and Allied.
PN755
SENIOR DEPUTY PRESIDENT KAUFMAN: What do you say about 111(1)(f), Mr Bromberg?
PN756
MR BROMBERG: 111(1)(f), your Honour, is not a source of perfect power relevantly, firstly it is limited to awards, directions, determinations or other decisions. It does not deal with certification and in any event, there's a specific code in the Act for the termination of certified agreements and there are specific mechanisms by which agreements can be considered for termination.
PN757
JUSTICE GIUDICE: I think this has been the subject of the Full Bench decision, has it not?
PN758
COMMISSIONER WHELAN: A decision to certify is a decision which can be - - -
PN759
MR BROMBERG: Well, we nevertheless put the submission - - -
PN760
JUSTICE GIUDICE: That does not mean that you are not at liberty to make the submission you are making but I just point it out, I think there was a decision on appeal from Justice Bolton.
PN761
MR BROMBERG: But in any event, your Honour, there are specific provisions dealing with termination of agreements and they are to be found - - -
PN762
JUSTICE GIUDICE: I think that issue is dealt with in that decision, Mr Bromberg. I'm going from memory.
PN763
MR BROMBERG: Yes, I'm not familiar with the decision but perhaps it is.
PN764
COMMISSIONER WHELAN: The issue is the decision to certify, not whether - not the proceedings or proceedings which might be taken in terms of termination.
PN765
MR BROMBERG: Yes.
PN766
COMMISSIONER WHELAN: It is a question - - -
PN767
MR BROMBERG: Well, then of course there might then be the issue of what the effect of setting aside the decision is of the certificate agreements.
PN768
JUSTICE GIUDICE: I don't think there's any doubt about that.
PN769
COMMISSIONER WHELAN: It means the agreements falls, yes.
PN770
MR BROMBERG: Yes, does the agreement fall and does it fall in circumstances where the Act has made specific provision as to how agreements are to fall or be terminated. So in our respectful submission, there are some very complex questions involved which as a matter of public interest if nothing else suggest that this is not an appropriate path to enter for the purpose of disposing the appeal. Now, all the parties agree that this is not an appropriate vehicle for dealing with the section 170LI issue.
PN771
If despite the uniformity of opposition from the bar table to the Full Bench embarking upon consideration of section 170LI, the Full Bench is minded to examine section 170LI, can we suggest a position and this is our - well, can I set out our position and suggest respectively what the Commission should do if it determines to go forward despite the opposition that exists at the moment. Firstly we say that the Full Bench should indicate - and perhaps this should be by re-affirmation - that it is minded to consider section 170LI. Secondly, the Full Bench should identify the purposes or purposes for which it seeks to examine section 170LI.
PN772
Is it simply on the question of the grant of leave or is the Full Bench foreshadowing that it may act on its own motion in some manner or other, either to set aside the certified agreements or to nullify the decision to certify or - we don't doubt that the Commission has a power to act on its motion under the Act. We say it does not have a power here but where the Commission has a power to act of its motion under the Act, one thing is clear and that is that the Commission has an obligation by reference to the principles of natural justice to advise the parties what it is considering in order that the submissions can be put, directed to those matters.
PN773
The case that comes to mind is the Apprentices Case in the High Court that I think your Honour, Senior Deputy President Kaufman was involved in, where the Full Bench had on its motion come to make a order or determination or award which was different to that which had been asked for and the High Court said: well, you may be able to do that but you can't do that without having given the employer an opportunity to address what you are considering and the same point - - -
PN774
SENIOR DEPUTY PRESIDENT KAUFMAN: Hence the last sentence in paragraph 9 of our statement.
PN775
MR BROMBERG: In paragraph 9 of your statement, your Honour?
PN776
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN777
JUSTICE GIUDICE: I think we are aware of those principles, Mr Bromberg. I guess we would be assisted by any submissions that you wish to make on behalf of your client in relation to the questions which we asked in our statement.
PN778
MR BROMBERG: Well, can I deal further with that in this way, your Honour, by saying that with respect that our position is that the Full Bench should indicate purpose or purposes for which it seeks further submissions and if the Commission is foreshadowing the possibility of acting on its own motion, it should advise the parties. Then we say that all parties and persons affected by any findings open upon the consideration of section 170LI should be notified and we then say that the matter should be relisted for directions including as to the reception of further evidence and submissions.
PN779
Now, your Honour, if that approach is rejected or is at risk of rejection without any opportunity beyond today being afforded to the CEPU to make submissions on section 170LI, then we need to know that because we do not want to have our opportunity foreclosed to make those submissions and if that is so, your Honour, we are in a position to make submissions.
PN780
JUSTICE GIUDICE: I think that would be very useful.
PN781
MR BROMBERG: Well, your Honour, that raises the question of who should begin the process and whether or not any one wants to call evidence and what evidence, if any, received below is sought to be relied upon. It is very difficulty, your Honour, for us to go first seeking to justify validity when we don't know the colour of the challenge or what evidence is to be relied upon or what the totality of the submissions that stand against us are intended to be. I don't know, your Honour, that any of my learned friends have actually, at this stage, put full submissions on the section 170LI matter. I don't think they have. There's a sentence, I think, no more in what the Employment Advocate has said in his submission. I think the Minister has been a little more detailed. It is, with respect, not for us to go first.
PN782
JUSTICE GIUDICE: It is a matter for your, Mr Bromberg. We are giving you the opportunity to make submissions about those issues. How you deal with it is entirely a matter for you.
PN783
MR BROMBERG: Well, I suppose that is so, your Honour, but we are seeking some guidance from the Commission as to whether the Commission expects us to be put submissions first on the issue. We would seek some guidance as to what evidence in the proceeding is to be relied upon for the section 170LI issue. On being advised of that, we would want to consider what evidence we seek to call, if any, and we should only be called upon to make submissions thereafter, in our respectful submission. If your Honour is against us - - -
PN784
JUSTICE GIUDICE: It is not a question of calling on you, Mr Bromberg, an opportunity has been afforded to your client to make submissions on some questions we identified. It is entirely a matter for you how you deal with that.
PN785
MR BROMBERG: Well, your Honour, we can make submissions but we indicate that we do that under objection but we do that in circumstances where we have not been provided the opportunity of calling any evidence, considering any evidence - knowing what evidence is called against us.
PN786
JUSTICE GIUDICE: You have not been denied the opportunity to call evidence.
PN787
MR BROMBERG: Well, the directions don't permit that course, your Honour.
PN788
JUSTICE GIUDICE: Do you want to call evidence?
PN789
MR BROMBERG: Your Honour, we don't know what evidence - - -
PN790
JUSTICE GIUDICE: Do you wish to call evidence, Mr Bromberg?
PN791
MR BROMBERG: We may do, your Honour, yes.
PN792
JUSTICE GIUDICE: Well, make an application?
PN793
MR BROMBERG: We can't do that, your Honour, until we know what evidence is sought to be relied upon against us. I can make the point, your Honour, and the Commission - if the Commission wants to hear what we have to say about section 170LI we will put it.
PN794
JUSTICE GIUDICE: It is a matter for you.
PN795
MR BROMBERG: Well, if we are at risk of the Commission proceeding to deal with section 170 - 170LI, then, subject to the reservations and objections we've put, we do seek to make submissions.
PN796
SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Bromberg, we invited and continue to invite submissions from the parties and the intervener on the issue of the validity of - on the issue of section 170LI and in the event that we find it to be - that clause invalid, about what course we should adopt. That is what we've invited submissions on. How you make those submissions, as his Honour, the President, points out, is entirely up to you.
PN797
MR BROMBERG: Well, I don't want to repeat what I've already said, your Honour, I think that the Commission understands our position and if we are at risk of this being our final opportunity to put those submissions, well, we will put them. Does the Commission want to hear from me about - - -
PN798
JUSTICE GIUDICE: We are about to adjourn, Mr Bromberg.
PN799
MR BROMBERG: If the Commission pleases.
PN800
JUSTICE GIUDICE: Are you going to make your submissions, or not?
PN801
MR BROMBERG: Yes, your Honour.
PN802
JUSTICE GIUDICE: Well, go ahead.
PN803
MR BROMBERG: Can we hand up, if the Commission pleases, an outline that we've prepared?
PN804
JUSTICE GIUDICE: Do you want these marked?
PN805
PN806
MR BROMBERG: If the Commission pleases, the appeal relates to over 200 certified agreements. It is not the case that all certified agreements are identical but for present purposes we can proceed upon that presumption and in these submissions where we make reference to the agreements we confine our reference to exhibit EA10, which is the certified agreement titled: ..... Factory Maintenance Labour Hire Enterprise Agreement 2000 to 2003. We then set out section 170LI(1), which the Commission will be familiar with, and we make the point that we use the shorthand of matters pertaining to the employment relationship as a reference to the relationship identified in section 170LI(1).
PN807
We then deal with the nature of the agreement in clause 14.3 because a proper characterisation of it, in our respectful submission, is vital for a proper consideration of the questions at hand. Clause 14.3 is a term of agreement made between employees, their representative and their employer. The agreement was made for the purpose of being certified. The agreement applies to all current and future employees and its terms and conditions are to be explained to all existing employees and all new employees by the commencement. The agreement is not confined merely to employees who are members of the CEPU.
PN808
It is apparent that the agreement was negotiated by the employer and the CEPU and approved by the employees. Section 170LJ(1) [sic] provides that an employee may make an agreement with one or more organisations of employees. Whilst such an organisation must have at least one member employed and be entitled to represent the industrial interests of that member there is no requirement that the organisation concerned have either membership or eligibility for all of the employees who will be the subject of the agreement.
PN809
We go on to make the point that in a workplace where there is more than one union with a member employed the provision provides the employee with some capacity to influence, if not choose, who ultimately represents the employees in the making of the agreement. Of course, the employees need to approve any choice of that sort implied through the voting - the valid majority procedure, but it is apparent, we say, that in a real and practical sense and in most industrial situations, both the employer and employees are given a capacity to influence, if not choose, a preferred representative of employees in the negotiations and in the implementation of any certified agreement made.
PN810
We also say that section 170LJ(1) [sic] gives to registered organisations the responsibility to represent all employees who will be the subject of the agreement, not simply its own members. In a practical sense, such representation would involve the union in relation to all employees in the consultation, explanation, voting and certification processes required by the sub-sections we've identified at paragraph 8. It is apparent from the very making of the agreement that the parties to it have chosen to resolve their industrial differences through collective bargaining.
PN811
An ongoing commitment to collective bargaining is expressed in the agreement at clause 14.1. Also apparent, from the fact the CEPU being a party to the agreement, that both the employer and a valid majority of the employees approved of the CEPU representing the interests of all employees. Now, beyond the role given to the CEPU in the negotiating, making and certification of the agreement, the CEPU is giving an ongoing role by the agreement in the continuing representation of all the employees - not simply its members but all the members - during the life of the agreement and then we identify a number of provisions that indicate that burden.
PN812
The first is the involvement in the dispute prevention settlement procedure, including where necessary conciliation and arbitration of individual grievances before the Australian Industrial Relations Commission. I don't read the other provisions that deal with the ongoing representational role of the CEPU in relation to all employees but they are there for the Commission to look at. Furthermore, as we say at paragraph 11, the agreement contains a commitment of clause 7.1 in the following terms:
PN813
The company and the employees in the ETU have a common interest in the electrical/electronic/communications contracting labour hire industry; therefore, a stable working environment and harmonious relations are required to improve the relationship between the company, it's employees and it's customers.
PN814
Progress in the industry demands a mutuality of confidence between the parties; all will benefit by continuous peace and by adjusting any difference by rational common-sense method. It is apparent, at least from the face of the agreement, we say, the fact of its making and the fact of its approval by a vote of employees, that both the employer and the employees concerned did, by agreement, determine that they would negotiate the terms and conditions of employment of the employees through collective bargaining and for that purpose and further, for the purpose of continuing representation and oversight during the life of the agreement, the CEPU be accorded the role and responsibility and burden of representing all employees.
PN815
In that context it follows, of course, 14.3 is addressing the subject of a representation of employees and, specifically, the means by which collective negotiations and continuing representation and oversight for the employees by the CEPU is to be achieved. That is the subject matter of the clause, in our respectful submission, and that is of importance to the analysis that we come to. We then set out the relevant objects of the Act as an aid to interpreting section 170LI. We say that although arguably collective bargaining has been a feature of the industrial relations system for a long time, it has only become formalised since 1993.
PN816
The Act currently deals with that formalised system through part 6B and the object is set out in section 170L, which seeks the facilitation and making of certified agreements, particularly at the level of a single business or part of a single business. Further support for that objective is to be found in section 3, in particular paragraphs (b) and (c). We also draw attention to paragraph K, which has the objective of assisting to giving effect to Australian international obligations in relation to labour standards. In that respect, we refer and set out article 4 of the Convention of the ILO entitled: Right to Organise and Collective Bargaining Convention, which provides for voluntary bargainings; the terms of it are set out there, but as we say in paragraph 18:
PN817
Article 4 encompasses the principle of voluntary bargaining pursuant to which the parties to collective agreements are free to determine for themselves, without interference, the matters to be dealt with in their collective bargaining agreements.
PN818
Can I just - we've given a reference there to the general survey, which is a collection of decisions of the committee of experts of the ILO. I'm not sure that the paragraph reference is correct and perhaps if I may have the opportunity later in the day to check that I can let the Commission know, but we say that Commission ought to bear in mind the principle of voluntary bargaining in giving effect - giving interpretation, I should say, to section 170LI because that will tend to observe what paragraph K of section 3 requires. Now, the first point we make is set out in paragraph D of our - in part D of the submission.
PN819
The approach that seems to be taken in the very brief submissions so far received on the point from the employment advocate and Minister seems to be focussed upon whether clause 14.3 is about matters pertaining. We say that that is not the proper question for consideration. Section 170LI(1) addresses the nature of the agreement made, not the nature of any one or more clauses of the agreement. The proper question is whether the agreement itself as a whole is about matters pertaining to the employment relationship. Now, as a matter of ordinary language, in our respectful submission, that has got to be right.
PN820
Section 170LI(1) speaks of the existence of an agreement - a definite article, an agreement - about matters pertaining, about being a word of broad import, matters being a word of broad import and pertaining - I think the High Court in one of the cases defined that as meaning, "within the sphere of influence;" also a word of right import - and it is - the question, the proper question, is whether the agreement as a whole is about matters pertaining to the relationship, not whether any particular clause fits the requisite description. An agreement does not necessarily lose the characterisation of being about a particular subject matter, simply because every term in an agreement is not directed to that subject matter.
PN821
For instance, we give an example in relationship to a contract of employment, containing a restraint clause about what the employee can or can't do after the employment has ended. The existence of that clause in the agreement wouldn't deny a contract its proper characterisation as being about employment. I suppose, as a matter of ordinary language, if, to give another example, Jeff Slattery writes a cook book and includes in it a few jokes, as he is liable to do, it is still a book about cooking; it does not lose its character as a book about his primary subject simply because it might address some other topic, perhaps how to cook the lovely vegetables he has grown or whatever it might be, or how to grow vegetables in order to use them in your cooking.
PN822
The word, "about," in our respectful submission, employs a broad rather than narrow connection between the agreement and its subject matter. The document is about a subject matter if the document has a significant connection with the subject matter whether or not that connection is exclusive. The language of 170LI does not suggest that exclusivity is required. In a legislative history of the provision confirms what appears from an ordinary understanding of the words and language used. The predecessor provisions to those now contained in division 2 and 4 of part 6B of the Act were found in division 3 of the Industrial Relations Act (1988); that division dealt with enterprise flexibility agreements and provided for such agreements to be made between constitution incorporations and employees. Section 170MC(1), which we've set out, was as follows:
PN823
On an application to the Commission to approve implementation of an agreement, the Commission must do so if and must not do so unless it is satisfied that the agreement applies only to the enterprise referred to in section 170NA -
PN824
that is a single business -
PN825
or is only about matters pertaining to the relationship between employers and employees.
PN826
Now, there's no equivalent provision in the Act and that, in our respectful submission, is a point of some force as to what was here intended. There is nothing in clause 14.3, we say, that would deny the agreement as a whole, the characterisation being about matters pertaining to the employment relationship. Nobody who picks up one of these agreements would, having looked at them, say they are not about employment. We say clause 14.3, for reasons that we will come to, has a direct bearing on the employment relationship; however, on any view, 14.3 is not sufficiently disconnected from the employment relationship to enable the conclusion that, by reason of its inclusion as a clause in the agreement, the agreement loses its character of being about the employment relationship or about matters pertaining to the employment relationship, to be more accurate.
PN827
So, in our respectful submission, any challenge fails to pass muster on that primary submission. If we are wrong about that and if the proper question involves testing each and every clause of an agreement against the requirements of 170LI(1) we say that the clause does bear the character required by the section. The subject matter which clause 14.3 deals with, we've already outlined; the clauses concerned with the collective representation of the employees for the making of and continued implementation of the agreement, or at least it is facilitative to that end.
PN828
It is of direct relevance to the employment relationship or sufficiently connected with the making and oversight of the terms and conditions of employment to be properly characterised as about matters pertaining to a relationship between the employer and employees in the business of the employer. The Bench will recall that the employment advocate sought to rely on an article by Graham Orr and that article addresses a number of general matters but also addresses clause 14.3, as I recall. Some observations are made there that, we think, put the position well and we rely upon them. In this respect at page 21 the learned author says this:
PN829
There is little contact to the employment relationship in the workplace principally governed by ...(reads)... Bargaining fees are thus necessarily incidental to the bargaining enforcement process, without with certified agreements would not exist.
PN830
Now, given that the Act seeks to facilitate collective bargaining and agreement making, it would be surprising and beyond the intent of Parliament, in our respectful submission, for the inclusion of a clause like 14.3 which has made possible, perhaps facilitated - merely facilitated rather than made possible - the making of an industrial agreement, that that inclusion should defeat the capacity of the parties to have an agreement made effective and certified under the Act. In our respectful submission, that is so far outside what Parliament would have intended and did intend in its objective of facilitating objective bargaining and agreement making, that it cannot be supposed that a clause such as 14.3 was intended to be regarded as a disqualifying feature.
PN831
That, we say, is a conclusion which we are able to make both on the language utilised and by reference to the discernible - any discernible legislative policy. There's certainly no discernible legislative policy to the contrary. We also make the point that disqualification for certification of an agreement by reason of a clause like clause 14.3 would offend against the principle of voluntary bargaining. We observe, too, as Graham Orr observes, that bargaining fees or agency shops are a common feature of collective bargaining systems and Mr Orr deals with that in the context of the US, South Africa, I think, and also Canada.
PN832
Now, it is not to be supposed, at least without Moore, in our respective submission, that when Parliament here introduced a formalised system of collective bargaining into the Act it intended to exclude a common feature of such systems. That, in our respectful submission, without Moore, ought not be readily supposed. Now, we make the point at paragraph 32 that the propositions upon which the employment advocate and Minister rely are based on a number of authorities as to the meaning of the definition of industrial dispute in section 4 and its predecessor provisions and an assumption is made that the jurisprudence referrable to the definition of industrial dispute is simply to be readily transposed and applied to the interpretation of section 170LI(1).
PN833
We say that jurisprudence has no direct application for the reasons which we go on to deal with and, in any event, if it does then clause 14.3 is nevertheless to be characterised as pertaining to the employment relationship within the authorities in question. We then set out the major authorities dealing with the definition of industrial dispute. We say that, whilst the body of case law in question deals with language similar to that found in 170LI(1), it would be erroneous to proceed on the presumption that Parliament intended the meaning ascribed to that language by the Courts has been adopted by Parliament and approved by it for the purpose of the enactment of a different provision dealing, as it does, with a different subject matter.
PN834
Now, we make the observation before we go onto further make this point, that even when an Act defines a term classically and almost exclusively in the definition section, it will be made clear that the definition does not apply where the contrary intention is to be found. Here, words which have been judicially considered in relation to a totally different topic, have not, in our respectful submission, and should not be regarded, in our respectful submission, as having been adopted, or at least the judicial interpretation of a word as having been adopted by Parliament when it creates a new provision on a different subject matter. Even where Parliament has re-enacted a provision dealing with the same subject matter, it is erroneous to proceed on the presumption that Parliament has approved a particular judicial interpretation of words used in an earlier provision, so that even where - - -
PN835
JUSTICE GIUDICE: I have to adjourn for a few minutes, Mr Bromberg, I'm sorry about that. We will resume as soon as we can.
SHORT ADJOURNMENT [11.30am]
RESUMED [11.41am]
PN836
JUSTICE GIUDICE: I apologise for that interruption. Thank you, Mr Bromberg?
PN837
MR BROMBERG: If the Commission pleases. I was at paragraph 36 of our submissions, dealing with the presumption and what the High Court has said about the presumption that when parliament re-enacts a provision it is to be taken to have intended that the judicial interpretation of the earlier provision is approved for the later provision. Now, Flaherty's case, in the High Court, is there referred to, we set out a passage from the decision of Mason, Wilson and Dawson JJ. Their Honours referred to what Dixon CJ has said in Rheinheimer's case, where his Honour said:
PN838
In any event the view that in modern legislation the repetition of a provision which has been dealt with by report means that a judicial interpretation has been legislatively approved, is I think quite artificial. To repeat what I've said before, the mechanics of law-making will no longer provide with the foundation for which the documents are supposed once to have possessed.
PN839
And the Court went on to say:
PN840
The reasons given by Dixon CJ, the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over interpretation otherwise appearing to be correct.
PN841
And there's a further statement about that, if you are in ALCAN at page 96. Now, of course, in Flaherty's case the presumption was being discussed in the circumstances where Parliament had re-enacted a provision in the same terms, that is a provision dealing with the same topic. Even in that situation the Court has found that the presumption is be given a little weight. This case, however, is manifestly different. Here Parliament has enacted a new provision dealing with an entirely different subject matter to that that it was addressing when it defined industrial dispute. Now, the definition of industrial dispute and the interpretation given to it relates to the jurisdiction of the Commission to settle by conciliation, arbitration in industrial disputes.
PN842
The scope in that power is constrained by the definition and, in particular, the requirement of the claim made pertained in the employment relationship. Now, all the cases, to which we've referred and to which our learned friend has referred, deal with whether a particular demand can be the subject of an industrial dispute. Section 4 has its constitutional basis in 51(35) and directly in by its focus upon the demand and the industrial dispute created by the rejection. Section 4, in the definition of industrial dispute, is concerned with dispute and the capacity of the dispute to initiate the jurisdiction of the Commission.
PN843
Section 170LI and its related provisions are not at all concerned with dispute, rather quite the opposite. The subject matter of those provisions is agreement and specifically agreement reached between negotiating parties that is sought to be certified before the Commission. It is not to be presumed that Parliament intended the very same limitations imposed upon a process of arbitration to be transposed upon a system of agreement making. That is particularly so in circumstances where the scope of any arbitration was in a practical sense open to a claimant to determine, whereas the scope of agreement making and the matters to be dealt with in agreement are fashioned consensually by both employers and employees.
PN844
We observe also that the constitutional basis for section 170 should be LI not LO in paragraph 41. Constitutional basis for section 170LI is 51(20) and not 51(35). Now, one of the major differences between the topic addressed by the definition industrial dispute and that dealt with by LI is that LI bears upon the entirety of the terms and conditions to be found in the industrial instrument made. It bears upon the entirety of the agreement and whether the agreement in its entirety is capable of being certified. Awards, however, are a combination of terms and conditions which emanate directly from the industrial dispute and thus settle or part settle the industrial dispute, and other terms and conditions, which will not be founded in the industrial dispute but which serve to maintain the settlement or part settlement of the dispute or prevent further disputes arising.
PN845
So our point is that awards are not simply made up of terms which settle or part settle the industrial dispute. Traditional industrial instruments, such as awards, include a whole range of other terms which are directed to maintaining the settlement and are not based in the industrial dispute itself. We give a number of examples of that, including union facilitation clauses, such as access and such as leave the trade union training and the like, those have been a common feature of awards and they are a common feature of certified agreement, including Division 2 Certified Agreements.
PN846
Now, it would be strange indeed if Parliament intended that a concept, which has never had the function of defining the in totality, the four corners of an industrial instrument, made through arbitration, should now be utilised to mark out in totality. We emphasise those words, "in totality" the four corners of the industrial instrument to be certified upon the making of an industrial agreement. That is particularly so in an act which seeks to encourage parties to move from arbitration to agreement making. If that were to be so the matters that could be dealt with in a certified agreement, made under division 2, would be far more limited to the terms and conditions which would be found in an award made through traditional arbitration. We say, it should not be supposed that Parliament intended to limit the matters which could form a part of division 2 agreements to a narrower base than was available through conciliation arbitration prior to the amendments to the Act (1996).
PN847
Now, in that respect it is relevant to observe that the other mechanism for the making of certified agreements contained in division 3 makes it abundantly clear that the terms and conditions that can be found in such agreements are not restricted to those that have their genesis in the industrial dispute itself. If the Commission turns to section 170LO, which deals with division 3 agreements, the industrial dispute is utilised as a genesis for - or the basis for support of terms and conditions to be found in an agreement, but only in respect of paragraph A, the settling or further settling of all/or any of the matters that are in dispute.
PN848
Paragraph B deals with maintaining the settlement, so one can have, in an LO agreement, provisions which have nothing to do whatsoever with the industrial dispute or the definition of industrial dispute, matters pertaining, but maintain the settlement of the matters that were in dispute, and then paragraph C, one can include terms which prevent further industrial disputes occurring. So it is clear that in division 3 agreements one is not confined to terms in an agreement which are founded upon the industrial dispute alone. A traditional view has been taken that industrial instruments are not simply founded upon what emanates from the dispute directly but, as the Commission has done for many years with awards, industrial instruments include other terms and conditions, including those that maintain a settlement or prevent a further dispute from occurring.
PN849
Indeed, if one looks at section 170LT(8) you will see that that provides that the agreement must include procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement about matters arising under the agreement. Now, that requirement applies equally to division 2 and division 3 agreements. So division 2 agreements must contain in them a term of this kind but which can only be categorised as a term seeking to maintain the settlement rather than necessarily having come out of the initial dispute or disagreement. That provision, we say, makes it clear that, in its reference to matters pertaining to the employment relationship, Parliament had in mind for division 2 the possible and, in the instance of a dispute settlement clause, the compulsory inclusion of terms and conditions maintaining the settlement of the differences between the partieS as embodied by the certified agreement and preventing further differences arising between them.
PN850
Clause 14.3 is a provision of that character. It is part and parcel of an agreement with which the parties have indicated a commitment to collective bargaining and a desire for harmonious relationships facilitated by the employees being organised and represented under the auspices of the CEPU. It would be curious, in the extreme, and I must say my observation of division 2 agreements there would be many many who would fall, if a division 2 agreements were restricted in their scope in the manner which the contrary argument would suggest. It would be a strange course, indeed, as we say, for Parliament to have intended to narrow the scope of division 2 agreements to a state significantly narrower than what the Commission could have done by way of arbitration and award.
PN851
We say that that alone indicates that any interpretations seeking to strictly apply the wording on the definition of "industrial dispute", that alone makes clear that Parliament did not intend that course to be followed. As we say, in paragraph 48, relying on Flaherty's case: The line of authority dealing with the meaning of industrial dispute, any presumption as to Parliament's intent arising from it, is not to be permitted to prevail over an interpretation otherwise appearing to be correct. Now, if that submission is wrong and the Commission is persuaded that the line of authority in question was to be strictly applied to the interpretation of 170LI(1), we nevertheless say that clause 14.3 is valid on that test.
PN852
Now, the line of authority in question makes it clear that the requisite of relationship being addressed is that of employees as such and the employer as such. As these authorities indicated, one way of testing that requirement is to look at whether the employees as employees and the employer as an employer have an interest in the subject matter under consideration. There are a number of comments along those lines and we set out one from Walsh Js decision in Portis's case where he said:
PN853
But in my opinion the provision for the payment by employers of subscriptions due by their employees to their union has no real connection with the relations of the employers and the employees. The payment of subscriptions is a matter pertaining to the relationship between the employees and their union.
PN854
In my opinion it is not a matter with which the employer as such has any concern and it does not become an industrial matter merely because an association makes a demand upon employers to which they are not willing to accede. In ALCAN, the High Court relying on Portis, stated that:
PN855
For a matter to pertain to the relationship of employers and employees it must affect them in their capacity as such.
PN856
Now, the refusal of an employer to agree or demand that it makes salary deductions may bear superficial similarities to a term providing for bargaining fees, but in fact the two are entirely distinguishable. Firstly, the salary's deduction scenario is based upon a refusal by the employer. Here there is an agreement as part of a comprehensive industrial agreement made by the employer as the employer. It can not be supposed that the subject matter of the agreement is of no concern to the employer as employer, after all the employer as employer has made the agreement.
PN857
Clause 14.3 is not at all dealing with employees as members of the CEPU, it does not mention membership at all. It expressly deals with employees in their capacity as employees. There can be no doubt that employees as employees have a very live interest in a clause which facilitates the means by which they can be represented, visibly their employer. So the employees have an interest in it. The employer also has an interest as employer in how its employees organise themselves and by whom they are represented industrially. Now, one only needs to think about the mountain of Commission's jurisprudence on section 118A and its predecessors to come to a view that employers have a very live interest in who represents their employees and how they are organised.
PN858
The terms of the agreement, to which we've referred earlier, make it clear that the employer is interested in a stable and harmonious industrial environment and a mutuality of confidence between the parties. It is evident that the agreement at least in part seeks to achieve that through collective bargaining and the continued representation of employers by the CEPU. The employer has an obvious interest as an employer in facilitating those mechanisms by which it is sought to resolve its differences and enhance and improve its relationship with its employees.
PN859
Now, in our respectful submission, when one analyses the cause, as we've done, one identifies its subject matter properly when one sees that it is integrally connected to collective bargaining and a facility in order to make a collective bargaining possible or at least facilitate collective bargaining. When one looks at the agreement as an agreement, identifies its objectives, including the objectives acknowledged by the employer of enhancing a co-operate relations, one can readily see why for both employee as employee and employer as employer the clause has an interest and concern and a sufficient relation to the relationship between the employer and its employees.
PN860
Now, for those reasons, in our respectful submission, we say that there is no substance at all in any challenge to the validity of either the agreements or clause 14.3 itself by reason of the inclusion in the agreements of clause 14.3. Now, we candidly say, with respect, that our apprehension in so far as we are able to discern the Commission's intention as to what it wanted to be heard about was very much limited to the question of the granting of leave. It has been raised this morning and perhaps as your Honour rightly says we should have appreciated that the Commission wanted all issues dealt with. We would seek an opportunity to put in writing what we have to say about the availability to the Commission of any power to either set aside the decision to certify or somehow rescind these certified agreements or terminate or set them aside of whatever it might be.
PN861
We would seek some opportunity to do that if the Commission would permit it. If the Commission is not prepared to permit it then we have made some brief response to that earlier on and we rely on what we've said earlier. If the Commission pleases?
PN862
MR CRAWSHAW: Your Honour, might we be permitted then to address these sort of matters that Mr Bromberg just addressed? Before doing that can I just take up the point raised by Senior Deputy President Kaufman about the Toyer Valley case, as we read the case - well, perhaps from the start I should say that in paragraph 3 of AWU1 where we submitted there was no appeal under 45(1)(g) because there was no decision. We were not there by talking about an expressed decision. In fact the case that we cite which is from the New South Wales industrial jurisdiction is a case that stands for the proposition that the decision can be implied from the nature of the proceedings. For example, if a submission was made to a Tribunal at first instance that that Tribunal didn't have jurisdiction and despite that submission the Tribunal went ahead and exercised its jurisdiction without expressly dealing with the submission there would be a decision to assume jurisdiction.
PN863
Similarly, in the Toyer Valley case - and the other matter that is covered by that is the notion of constructive failure to exercise jurisdiction, of course. In the Toyer Valley case the Full Bench, approved by the Federal Court, said that there was a decision to exercise jurisdiction, and it was plain from the proceedings before the Commissioner at first instance that he was making a decision to exercise jurisdiction. That is not the case in the proceedings before Vice President McIntyre. Vice President McIntyre's proceedings were confined to this point about the freedom of association provisions. No-one raised any question of jurisdiction. It can't be said that it can be implied in any way that he was exercising jurisdiction, that is the point we made.
PN864
In any event, we rely separately on section 45(3)(d) that an appeal can be only brought by someone aggrieved and there's no such appeal. If we could then go to the question of whether the ..... clauses are about matters pertaining within the meaning of section 170LI of the Act. We have produced, as I have foreshadowed earlier, a written submission on that topic and - - -
PN865
COMMISSIONER WHELAN: AWU2.
PN866
MR CRAWSHAW: Thanks, your Honour. Once again I don't intend to stand here and take the Commission's time reading that document to you. Perhaps if I could just give a summary of it by reference to the document. I apologise in advance for any duplication of the matters raised by Mr Bromberg. The first topic, as it were, is the text and context of section 170LI and we deal in that section of the written submission with the notion which was raised by Mr Bromberg that the text and context are that it is found in a section of the Act not constitutionally dependent upon section 51(35) of the Constitution but rather section 51(20) of the Constitution.
PN867
It is found in a section of the Act that deals with bargaining between employers and employees and in particular the relevant words that we are talking about talk about employers on the one hand and all persons who are employed in a single business on the other hand. So we say it is concerned with a different context to that that has been the subject of the High Court decisions that have been referred to particularly by counsel for the Commonwealth Government intervening. It is concerned with the subject matter of the agreement reached between the two parties after the negotiation in approval process rather than with demands that lead to the creation of an industrial dispute.
PN868
So we submit, and we come to this paragraph 11 of our submission, that the phrase matter pertaining, as it appears in section 170LI, must be construed in light of the statutory role given to unions by division 2. We refer to the role given to unions in the collective bargaining process under division 2 and the various provisions relating to that particular point. We make the point, in paragraph 12, that the collective bargaining regime applicable in division 2 requires the union to devote considerable time and effort to the collective bargaining process. Now, it might be said that that is not a matter substantiated by evidence, and I suppose that bears out the point we earlier made about this case being decided in the absence of evidence.
PN869
I think one could infer that from the various provisions that deal with the procedures that have to be gone through and the role of unions in them. In particular, the role of unions in an agreement that is certified with agreements being party there too. So we go onto paragraph 13 to say: a clause in a certified agreement which provides the fees for a bargaining agent is a clause which is part of the mechanics of collective bargaining and assists in maintaining the ongoing relationship between employer and employees. By way of illustration I hark back to the earlier example I gave about how such a clause may avoid any resentment arising at the workplace between employees who have not contributed to the payment of the bargaining agent, in this case the CEPU, and between those employees and employees who have so contributed. Such a clause as this will avoid such resentment arising. Such resentment inevitably or possibly manifesting itself in industrial disruption of the relationship between employers and employees. The other example I give is the payment of such fees to the bargaining agent, once again in this case the CEPU, strengthens the ability of that bargaining agent to carry on. It is called a bargaining fee so it is not only to bring about the original agreement or bring about the agreement the subject of argument, it is bargaining, the ongoing bargaining process.
PN870
Bargaining is an ongoing process. There is, as we have referred to, provisions - we have referred to this in paragraph 14 - provisions for dispute settling which are found in these agreements. In fact, they must be found in these agreements by virtue of section 170LT(8) and, of course, bargaining - other matters of ongoing bargaining, indeed, bargaining in the future for further agreements. All that bargaining, we submit, directly pertaining to the relationship between employers and employees.
PN871
We then go - at the bottom of page 4, before paragraph 16 of our submissions, we then have a heading: Authorities concerned with the application of matter pertaining in the context of industrial disputes. We there, in that section, seek to deal with the High Court authorities that dealt with the question of matters pertaining in the context, as I earlier pointed out, of disputes and demands leading to disputes. We make that point again. In paragraph 20 we say:
PN872
To the extent the authorities in relation to matters -
PN873
that should be matters pertaining -
PN874
in the context of section 4 and its predecessors are of assistance in approach to section 170LI then it must be recalled the High Court has always acknowledged that a demand made by a union may be in relation to a matter pertaining in circumstances where the demand so as to the strengthen the union's bargaining position or the position of employed union labour as against contract labour.
PN875
We cite the union badge case and Archer's case which are discussed further on in that section and we also say, at paragraph 21:
PN876
These decisions were made in the context where union's work was focused on award making and bargaining in relation to same. In that context, provisions in awards such as those requiring the award be posted or one permitting employees to wear a union badge or a provision requiring the employer to affix a label to goods indicating that they were made by employees rather than subcontractors were all found to pertain to the relationship between employer and employees.
PN877
We say the provisions in this particular clause of these agreements are of a similar nature. We recognise that those particular cases have, in the subsequent High Court case of Porters and Allcan, been limited to factual matters similar in kind but we say these are provisions that are similar in kind and we go on to deal with those cases. We deal with the Allcan and Porters cases, beginning at paragraph 28 of the submission. The Commission will recollect, no doubt, the point that was made in those cases that just because the matter could be characterised as being between employer and employees, didn't necessarily mean that the matters were concerning or pertaining to employees in their capacity as employees. That was the point of distinction, particularly in the second case, the Allcan case, which followed Porters.
PN878
Can I just have one moment, your Honour. The other point that was made, I think particularly in the judgment of Steven J in the Porters case, at the end of the judgment was that it was not all matters that were the subject matter of a demand that apparently related to employees and that had a union flavour that had the requisite connection with the employer-employee relationship. In fact they said that requisite relationship wasn't present in the matter they were considering, namely a demand for payroll deductions.
PN879
The point of distinction is this and we come to this in paragraph 30 of our submissions. If you look at the present clause, it does not constitute an agreement that relates to employees in their capacity as union members. That can't be said in this case. Rather it is an agreement about the collective bargaining relationship between the employees, through their bargaining agent, and the employer and the maintenance of that relationship.
PN880
JUSTICE GIUDICE: The employees are not a party to that agreement, are they?
PN881
MR CRAWSHAW: Yes, your Honour, I think they are.
PN882
JUSTICE GIUDICE: Are they? A party to the agreement insofar as it relates to the payment of the bargaining fee.
PN883
MR CRAWSHAW: Well, they are parties to the agreement as a whole.
PN884
JUSTICE GIUDICE: Yes, but the obligation is put on the employer, isn't it?
PN885
MR CRAWSHAW: Well, there is an obligation on the employer to advise the employees and then there is an obligation on the employees to pay the fee to the union. So I suppose there could be said to be two obligations. If I could just give you the section of the Act that says they are parties to the agreement. You do not need me to refer - - -
PN886
JUSTICE GIUDICE: Well, we have been through it earlier, I am sure.
PN887
MR CRAWSHAW: Can I just say, having regard - - -
PN888
JUSTICE GIUDICE: 170M(1).
PN889
MR CRAWSHAW: Yes. In relation to the second obligation, the obligation on the employees of pay the fees to the union, it is not a case, such as it was with the payroll deductions where those moneys were going to the union for the union to do what - I withdraw that. They were not moneys that were going to the union in consideration of the union membership. They are moneys that are going to the union in consideration, specifically, for the matter of bargaining. So the fees, as we have said in paragraph 30, are not in consideration for the whole range of services provided by the union to its members, which may involve matters not pertaining to the relationship of employers and employees, for example, housing loans and matters of that kind but rather the fees are collected in specific consideration for the union providing the service of collective bargaining which we say clearly involves the relationship of employer and employee or employer and employees.
PN890
Finally, in our submission, we deal with the scope of section 170LI. We put in our earlier submission that section 170LI only requires that there be matters pertaining to the relationship of employer and employees. It does not prohibit the agreement also containing matters that can't be so characterised. That is our primary submission. This is in the nature of an alternate submission. In particular, we make a submission that if the Commission has this role of examining the agreement for compliance, as it were, with section 170LI, we submit it is not a role that should involve the Commission combing through the agreement clause by clause to subject the agreement to an examination where those clauses are considered out of context of the rest of the agreement that has been reached.
PN891
In particular, we submit, one should characterise the agreement as a whole. If one characterises the agreement as a whole, one can come to no other conclusion then that it has the requisite relationship. It is not as though this clause is one that stands out as blatantly being outside the employment relationship. Whatever side of the ledger you come down to in the argument that is being put, if you decide to come down on one side or the other, one can see that it is at least arguable that there is that requisite relationship between employer and employees. It is not so extraneous that one would dismiss it out of hand.
PN892
I suppose we put that as an alternate submission that if you apply section 170LI, one should take that approach to it. The agreement is, we conclude with that submission, paragraph 35, that if the agreement is substantially about the workplace and the relationship between the parties, including mechanisms for dealing with bargaining between those parties and/or dealing with disputes arising between those parties, then it is an agreement about matters pertaining. They are our submissions, if the Commission pleases and I thank you for the opportunity of being able to put them.
PN893
JUSTICE GIUDICE: Yes, thank you, Mr Crawshaw.
PN894
MR BROMBERG: If the Commission pleases, may I be permitted to mention one case that I neglected to mention, which may assist the Commission in its deliberations. The Commission might recall the recent decision by the High Court in PP Consultants which dealt with section 149(1)(d) and the meaning of section 149(1)(d) in relation to transmission of business and what was being there dealt with were the words "any successful assignee or transmittee, whether immediate or not to the business" etcetera.
PN895
When one goes to that case, one can readily appreciate the importance of context in giving interpretation to the language utilised because the High Court in Atoff, some 15 years earlier, analysed the very same phrase that is found in 149(1)(d) but on that occasion in relation to a union's eligibility clause. The High Court in PP Consultants, make a point and we seek to rely upon it, that the identicality of the language is one aspect that one must always bear in mind the context and the context is often a primary basis for proper interpretation of a provision. If the Commission pleases.
PN896
JUSTICE GIUDICE: Mr Amendola.
PN897
MR AMENDOLA: If the Commission pleases, in a sense I hesitate to rise but having regard to what has come out in AWU2 and CEPU2, when the directions were first made by the Commission in its statement and directions on 15 June the directions were the appellant and the intervener put submissions relating to the issues raised, there be a response and then there be a reply. So far as the Minister is concerned, as I indicated this morning, we actually think we sought to deal with the questions asked to the extent that the AWU certainly, for the first time today, and the CEPU today, have sought to deal with those issues in the way that they have, we would seek the leave of the Commission to put some further written submissions in on the matters that have been put to the Commission today.
PN898
JUSTICE GIUDICE: Well, Mr Bromberg has not finished yet, apparently. No doubt you would want to see those submissions before you made any - - -
PN899
MR AMENDOLA: Indeed. I was going to indicate that if the Commission was minded to grant leave to put in further submissions on the question of setting aside - - -
PN900
JUSTICE GIUDICE: Any submissions about further submissions?
PN901
MR AMENDOLA: I make the same submissions.
PN902
MR BROMBERG: Can I say this, we do not have an objection to submissions being put in reply, as long as they bear that character because, pursuant to the directions, the Employment Advocate and the Minister had an opportunity to say what they wanted to say in-chief.
PN903
JUSTICE GIUDICE: As did you.
PN904
MR CRAWSHAW: As did we, your Honour. We have done that today. Anything further to be said by anybody in-chief should be done today. We have no opposition to a reply submission - - -
PN905
JUSTICE GIUDICE: Don't you want to say something further in-chief?
PN906
MR BROMBERG: Yes, in a limited respect.
PN907
JUSTICE GIUDICE: You can't do that today?
PN908
MR BROMBERG: I have done it insofar as I can, your Honour, if your Honour pleases.
PN909
JUSTICE GIUDICE: Mr Crawshaw, you might get caught in the cross-fire here, is there anything else that you would - I think I will give you an opportunity to make any further submission once you have seen the rest of Mr Bromberg's submission. There will have to be an end to this. We will give you a week, Mr Bromberg and then a further week for any additional written submission from any other party. We will not make formal orders in that respect. We are dealing with counsel so we assume those time limits will be complied with. If there is nothing else, we will adjourn.
ADJOURNED INDEFINITELY [12.30pm]
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