C2360/200, Transcript of Proceedings [2001] AIRCTrans 234 (15 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C No 23602 of 2000

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION

and

SERCO PTY LIMITED

Application pursuant to section 99 of the Act of
a dispute re bargaining period

C No 23967 of 2000

Application pursuant to section 101 of the Act by
Serco Australia Pty Limited to vary or revoke dispute
finding between Serco Australia Pty Limited and ARTBIU

C No 23187 of 2000

Application pursuant to section 170M of the Act by
Serco Australia Pty Limited and ARTBIU re application
for orders and discretionary arguments

SYDNEY

10.05 AM, THURSDAY, 22 FEBRUARY 2001

Continued from 13.2.01

PN402

THE SENIOR DEPUTY PRESIDENT: Any changes to the appearances this morning?

PN403

MR DIXON: I again appear for Serco.

PN404

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dixon. Where are we Mr Nolan?

PN405

MR NOLAN: As I understand the sequence of events that has occurred following your Honour's decision last Friday which really reduced to writing what you had said to the parties when we were before you on 13 February, this morning was to be concerned with paying regard to the merit issues if you will and associated issues that were really the subject of the written submissions that we gave to the Commission. As for our part, on 20 November 2000 as we understand the situation, you will recall and you make reference to this in your decision of last Friday, the circumstances of course that brought us here in the first place and it was against that background what we've put before the Commission on that first occasion late last year when we came to the Commission with those notifications.

PN406

We suggested to the Commission that it should involve itself in this matter and that it was equipped by ..... of its conciliation powers to do the things that we propose to ask it to do. You will recall again and this is recounted in your decision, that whereas the union had initially sought a ballot to be conducted under section 135 in the light of the material available to the union about employee expression of desire to a wider ballot not just limited to union members. The union reviewed its position and in the submission that were made to you, the written submissions to which I've referred, it suggested that the preferable course in the circumstances was for a wider ballot or a wider polling of employee view.

PN407

In that connection, the RTBU then considered the powers available to the Commission to take such a poll or to canvas views of that kind and it pointed in the written submissions to the powers which the Commission have under section 111(1)(d) and/or (t) to allow it to give orders and directions of a broad kind that are consistent with the request for the polling of employee's views in the manner suggested. Now, of course we put to you that there were two bases upon which that could be done. It could be done by reference to the original Raffaelli dispute or it could be done by reference to the bargaining period that had been instituted by the union.

PN408

Either way in our submission the powers under section 111(1)(t) and (d) are available and in that connection on that question of power we refer the Commission to the decision of the Full Bench of the Commission in the Telstra case and specifically in that connection we made reference to section 170MA which of course you have referred to in last Friday's decision which empowers the Commission to exercise all of the conciliation powers in relation to a matter arising under the bargaining stream that it would have under part 6 in relation to the matter if that part applied in conciliation in relation to the matters instead of in relation to industrial disputes and we pointed out that the powers available to you by that route were extensive, that so much was really set out and established that needed to be established in the CPSU v Telstra case, the reference to which you were given, and I think copies of those were handed up on the earlier occasion. I may be wrong about that.

PN409

THE SENIOR DEPUTY PRESIDENT: In any event, I have that print with me.

PN410

MR NOLAN: So we say that specially constituted Full Bench has pronounced authoritatively on exercise of powers under section 111. In conciliation proceedings we say that that's sufficient for our present purpose if section 170NA is to be called today and so our proposition is that the basis is there for the exercise of the power. We say that that on a discretionary basis one then looks to what's at issue under the Act and we refer to the framework for workplace relations which we say is established by in particular the objects but we make specific reference in the written submissions to section 3(c) where it's said that the framework - the cooperative workplace relations is established and one that should desirably be directed to enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances.

PN411

We say how does one then address the question of choice in the context of the way the act operates and having regard to the powers available to the Commission in conciliation in the bargaining stream and we say that there's really an obvious answer to that question and that is by means of the kind of employee poll that we recommend here because as we point out if it were to be otherwise, if there was no mechanism to poll collective view of employees one would never reach the point where there was any expression given to the concept of choice in a circumstance such as this because each individual employees' AWA coming to an end at a different time would mean that there was never an opportunity which would arise unless something like this resorted to for employees to give effect to an expression of view about preference for collective arrangements over and above individual arrangements.

PN412

So we say that the piece of the jigsaw puzzle if you like that gives practical expression to the notion of choice as it's set out in the objects when one comes to consider our choices to be exercising the bargaining stream can be answered or can be addressed by the assistance of the Commission's conciliation function and the use of its powers in conciliation to resolve disputes about issues of choice such as this and that acknowledges the legitimacy of collective expression or at least it gives employees as a collective group the right to entitlement to give voice to their preference.

PN413

We refer in aid of that general contention about the way the Act and the bargaining stream should operate or should be taken to operate by referring to the decisions of the members of the Commission in particular in the National Tertiary Education Industry Union case. A decision of Commissioner Smith. That was applied and approved by Deputy President Duncan in the later NTU case, the English Language Centre's case and it is clear, in our submission, from those decisions and indeed from some of the remarks made by Munro J in Joy that one is compelled to put meat on the bones, as it were, of the bargaining framework and one can do that by recourse to accepted notions of the duty to bargain in good faith and what goes with it.

PN414

So there are a variety of sources, both explicit and implicit which we say lend aid to our contention that there would have been an exercise of the commission's conciliation powers, in this particular case in the light of the material before you about the preliminary expression of view by these employees and in the face of what you have heard about Serco's decision, for whatever reason, to take an intractable view opposed to a course which would allow employees to express a collective view in a meaningful way. We also refer to the decision of Wilcox J in the CMFEU v BHP Steel case to underscore what we say is important about issues of choice and rights of employees to choose embodied in the Act and we say that that really underscores the general approach that we commended to the commission.

PN415

So, having regard to the framework that we have endeavoured to trace, the powers that we have identified and the issue, that is to say the employees preliminary expression of view through their partition, we say that the only way forward or the preferable way forward is for a poll of employee' views of the kind that we have indicated to assist the commission in taking the conciliation of this matter. The conciliation of this matter of the dispute over the desire for a collective agreement to the next sage to allow an authoritative statement of employee view to be polled and that will allow the parties to take their bearings from that authoritative state and engage in conciliation under the auspices of the commission with a view to endeavouring to reach agreement.

PN416

There is no pre-ordained outcome, of course, by that course. It is really one that is involved in bringing the parties together and endeavouring to reach agreement but it is, nonetheless a power that the commission has available to exercise and it would seem from the way the Act is structured the commission is maybe inclined to exercise in situations just such as these.If I can just hand up another authority which I refer to very briefly and that's a decision in Bain's case. A decision of course with which your Honour will be well familiar and whereas there was very little judicial discussion of precisely what the meets and bounds of conciliation are. To the extent that we have some general indications. Of course there's a classic statement of what's the potential for the Commissions power in exercising its conciliation power in the joint statement of Brennan and Deane JJs in Bain's case and in this connection I refer to the last part of 176 at about point 6 where admittedly in the context of comparing arbitration and conciliation the comment is made that:

PN417

The ambit of the dispute determines the limits of the jurisdiction of an arbitrator.

PN418

It's by reference to that contrast that the extent of the conciliation powers is considered in this case but it's worthwhile noting that these two members of the court say this.

PN419

Those limits, that is to say the limits of arbitration as compared with what apparently very broad limits if there be limits on conciliation are derived in the nature of arbitration. They do not circumscribe the functions of the conciliator who is at liberty to assist the parties themselves to avoid or settle a dispute by an agreement which ventures beyond the ambit of their perspective or actual dispute. That the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute. They would lack the flexibility and sophistication exhibited even by the conciliation processes of a primitive tribal society.

PN420

They there refer to a discussion by the jurisprudence scholar, McCormack v The Irish Jurist and another text. They say:

PN421

The decisions of this court in which the limits of arbitral power have been stated by reference to the ambit of dispute they be given too wide a significance if they are assumed to state in the same way the scope of the legislative power with respect to conciliation under section 51(35) of the Constitution or the scope of the conciliation powers of the Commission under the Act. Since that question was not examined in argument in the present case, however, we refrain from forming any concluded view of upon it.

PN422

So of course those comments are strictly speaking a predictor but they do illustrate the contrast made between arbitration and conciliation and suggest that the Commissions powers in exercising a conciliation function are flexible, broad, not constrained by the limits and straight jacket of arbitration and therefore in this particular case or in a case like this, appropriate to be utilised and adapted to the circumstances of the case. Typically a case or for example a case like this which is admittedly unusual and novel because it's really something that's sprung from the structure of the 1996 Act and so it may be that much more will need to be said and considered about the scope of the conciliation power. But to the extent that there's an indication of that decision, the indication is that the courts will take a very broad and flexible view of the conciliation and conciliation power and not in the restrictive way.

PN423

So, your Honour, our contention is that having set out the basis for the proposed way forward we say that there's nothing by way of any issue that goes to merit that would sensibly or ought sensibly frustrate an expression of view by these employees. It's consistent with the objects of the Act and the framework for industrial relations that we've described and it's an appropriate and suitable example of the way in which conciliation powers under the bargaining stream can and should be used if those powers are to be used at all. If it please the Commission.

PN424

THE SENIOR DEPUTY PRESIDENT: Mr Dixon?

PN425

MR DIXON: May it please the Commissioner. Your Honour, the first issue which, in my respectful submission, arises. Given the rather tortured way in which we arrived before your Honour today because of the tactics used by the union and the change of tactics adopted by the union is for the applicants to properly identify for the Commission a jurisdictional basis upon which to exercise any of its powers. In my respectful submission, your Honour, in the present case it is essential to look to the true nature of the dispute between the parties to see whether such a jurisdictional basis exists. Out of all the material that has been put forward by the ARTPU, one thing appears to remain very clear. The true dispute here in respect of which the Commission is being asked to exercise what I've just described as conciliation powers is the dispute expressly identified by the ARTPU as concerning the form industrial instrument which it applied to employees.

PN426

In other words the form of industrial regulation. Now, I know your Honour has heard me, part of this before, but it remains, in my respectful submission, a critical issue when the time comes for your Honour to exercise any powers. Another way of putting it is that the dispute as to whether employees views should be obtained regarding their preference for the form of industrial regulation which should apply. May I just remind your Honour again about the unions submissions in that regard as filed on - - -

PN427

THE SENIOR DEPUTY PRESIDENT: Before you do, Mr Dixon, dealing with the provisions of section 170NA, are these considerations that I need to take into account at all?

PN428

MR DIXON: Yes, your Honour.

PN429

THE SENIOR DEPUTY PRESIDENT: But that's what section 170NA is all about to assist the parties in either reaching an agreement or at least agreeing to reach some accommodation as to what will be for the future the manner in which their terms and conditions will be regulated.

PN430

MR DIXON: Your Honour, it appears that section 170NA has a number of functions to perform. One function that it appears to have is to accommodate the situation of Part 6B has within it the making of agreements both in respect of an industrial dispute or under the corporations power. Now, it does not appear that there is any express provision for conciliation in respect of a corporations power agreement that is being sought. So section 170NA in that regard has a role to perform. Now, in relation to the other role which section 170NA might perform and there's a question to which I will come in a moment about that, is in relation to an industrial dispute. Because there needs to be a true industrial dispute in respect of which the powers of conciliation are to be performed.

PN431

One of the reasons for that is, your Honour, that in relation to a Division 3 Agreement there has to be an industrial dispute. The agreement is in respect of an industrial dispute. So, your Honour, is not concerned with any corporations power issue here. The only issue that can arise is whether there is an industrial dispute in respect of which the union seeks the making of an agreement and that is an important ingredient in the exercise of any powers.

PN432

THE SENIOR DEPUTY PRESIDENT: Yes, it just seems to me that what has occurred here which is written common place in relation to initiating a bargaining period, is that a notice has been lodged. It has within its terms identified an industrial dispute, that is the dispute made some time ago by Commissioner Raffaelli. It is in respect of dealing with that matter that the Commission is entitled to conciliate and when doing so is able to use all its conciliation powers. Why do I need to go any wider than that in relation to there being at least power for my to make a direction consistent with that sought by the union?

PN433

MR DIXON: That assumes that your Honour is being asked to exercise powers in respect of the settlement of that earlier dispute. If one stands back for a moment, this is not a case where the union has said, look, there is an identifiable dispute, we want to make an agreement in respect of that dispute, there is some issue between the parties about the terms of the agreement or whatever and we're asking the Commission to exercise conciliation powers in respect of that issue.

PN434

The true nature of the dispute needs to be identified, and the true nature of the dispute is what form of industrial regulation should this employer adopt or what form of industrial regulation does the union and its members seek to adopt, so that one ought not, in my respectful submission, to overlook what is truly being sought by the union here, and it is not the exercise of powers in respect of its notice which identified a specific industrial dispute, in respect of which there is some difficulty in negotiating a term, or otherwise, of the certified agreement is proposed.

PN435

That leaves aside the question of how section 170NA plays any role. May I take your Honour to section 170NA. Your Honour would be aware, of course, that in Part VIB there are a number of provisions which expressly identify where conciliation powers might be exercised - section 170LV(3), section 170MY in relation to section 170MX matters - so that Part VIB identifies a number of instances where there is an express conciliation power given. If one looks at the wording of section 170NA(1) it says:

PN436

The Commission has the conciliation powers in relation to a matter arising under this part.

PN437

In my respectful submission, one of the questions your Honour needs to be satisfied about is what is the matter arising under this part? The question of whether employers choose and employees choose to make a certified agreement or choose to regulate by industrial agreement is not a matter arising under this part. AWAs are in a different part. It is simply illustrative of the difficulties which arise in approaching the matter in the way that the union has.

PN438

Might I just say this to your Honour. This might be overcome by the other proposition that I'm about to develop and perhaps if I just mention that and if your Honour has some further difficulty in relation to this I will address it. It is glibly suggested by the union that your Honour can do anything once there is a conciliation arising pursuant to its notification of an industrial dispute. That is not so. Our argument will be that the express powers in 135(1) to order a secret ballot override the more general powers that might be a available in section 111(1). If that is right, then no powers could be exercised in relation to any of the disputes that are potentially put forward as a jurisdictional basis for your Honour to exercise the power.

PN439

But my starting point still has to be that proper identification of what is really in dispute between the parties, and I think your Honour knows my submissions in relation to that because they were identified in the union's written submissions, and it is unquestionably full of regulation. That is not a matter upon which the Commission would exercise its arbitral powers and it is not a matter upon which the Commission would exercise its conciliation powers, in my respectful submission.

PN440

THE SENIOR DEPUTY PRESIDENT: I must say I don't know how much longer I will hear you on this, Mr Dixon. I thought I had disposed of this issue by identifying that in my view, the dispute finding made by Commissioner Raffaelli and/or the power to conciliate in respect of a request to do so arising in a section 170MI notice gave me - it's really not the jurisdiction, I think, - I think gave me the power to then entertain whether as a matter of discretion a question similar to that suggested by the union should be drafted and I suppose directed to be put.

PN441

MR DIXON: I understand what your Honour is putting to me and I know your Honour has dealt with it. I make the point though, and I'm sorry if I'm testing your Honour's patience in relation to this, that whenever the time comes for the Commission to be asked to exercise powers, it is appropriate for the Commission to ask the question of whether there is simply a device being utilised to try and enliven the Commission's power, or whether there is truly a basis soundly put forward for the exercise of power. In this case, the true issue in dispute between the parties is form and not Commissioner Raffaelli's dispute.

PN442

THE SENIOR DEPUTY PRESIDENT: Then staying with that, that's exactly what a section 170MI notice is all about. There's no doubt about it. The party initiating it wants a collective agreement, and it is in respect of that we can conciliate, so there's no one trying to misdescribe or use some procedure to achieve a hidden objective. It's perfectly clear. The notice is issued for the purpose of achieving a collective agreement.

PN443

MR DIXON: Your Honour would still ask the question as to whether conciliation of that notice under part VIB, which is being suggested, permits the true question in dispute to be conciliated, because it is not a matter arising under the notice. It is fundamentally at odds with the notice and it is irrelevant to the making of an agreement, if that is the course that the union embarks upon. Might I take your Honour the next step?

PN444

THE SENIOR DEPUTY PRESIDENT: Might I just say this too so that you have an idea as to a number of matters that may need to be tackled by me, and Mr Nolan can bear this in mind too. Once we complete the question about - well, if I'm inclined to, for the purposes of considering whether or not a direction should issue, that a question in terms similar to that put by the union should be put or not, whether there is power to do so, once we get rid of that issue - and I thought that we're pretty close in my mind at least that I've got rid of that issue but I'll hear you for a little longer - it seemed to me then there are a number of things I needed to consider.

PN445

Firstly, whether there has in fact been any conciliation at all arising out of the requests by the union for conciliation, which request was contained in a section 170MI notice. That may be a discretionary matter as to whether I would launch into considering a question, what the question should be, and asking that it be put. The second issue would be that if I was inclined to think that an attempt at knitting with the parties to see if there could be some conciliation, if I thought it was better that a question should be put, should the question be - well, should it be a question at all or should there be some other consideration as to how the matters in issue can be considered. Thirdly, if a question really does need to issue, should it be the one put by the union.

PN446

So there are a number of discretionary areas that I haven't even tackled yet in questions with Mr Nolan, nor have you reached the time that you would put any arguments you would wish to. Quite apart from the power basis upon which I could entertain the issue of a direction sought, I should not do so for whatever reasons you wish to develop. I think I can guess for some of them, but what more do you want to say, Mr Dixon, about this power question?

PN447

MR DIXON: I don't want to touch on what I've said so far any further, what I do now want to address is whether your Honour has the power of the section 111, given the provisions in section 135, to make any order, irrespective of whether your Honour regards the matter before your Honour as that coming from Commissioner Rafaelli's dispute or any of the other possible jurisdictional foundations that have been tentatively raised.

PN448

THE SENIOR DEPUTY PRESIDENT: And this arises, of course, in the event that I'm satisfied we've reached the stage that some sort of a questions along the lines Mr Nolan's drafted should be put.

PN449

MR DIXON: Yes, we've come to face an application, as I understand it, your Honour, that your Honour is being asked to issue an order or a direction but I think it's more appropriate to define it as an order given what other provisions are in the Act, but leave that aside for the moment, that there be a secret ballot held in the form of a question posed by the union. Our respectful submission is that - may I go back one? That question is to be directed, or the secret ballot is to be held in relation to all employees in the relevant category not only to members of the Commission, and the union disavows any reliance on section 135(1) for that purpose.

PN450

My submission is that the existence with the specific conditions in section 135(1) is the express provision for the ordering of ballots and it overrides the more general power contained in section 111 and it's that issue that I now wish to develop, your Honour.

PN451

THE SENIOR DEPUTY PRESIDENT: All right. I understand the issue but I'm just wondering whether we develop that against the assumption that the question that I will direct be put is that drafted and contained in the submission Mr Nolan has mentioned or whether it might be some other question because it could be very important, could it not, to know what the question is, to know whether it is a question that, properly categorised, really is about balloting the views of employees, the sort of ballot that one would generally seek under 135.

PN452

MR DIXON: Your Honour, it's very clear that the union wants, and the content of the question is a later state. The union is seeking an order that there be a secret ballot of all employees. The question is whether the Commission has got the power to make such an order regardless of the content of the question and that power, in my respectful submission, is excluded by the provisions of section 135.

PN453

THE SENIOR DEPUTY PRESIDENT: Whatever the question might be.

PN454

MR DIXON: Whatever the question might be because it is the purpose for what the order is being asked to be exercised, namely, that there be a secret ballot of all these employees to answer the following question. The question is whether there can be an order that there be a secret ballot.

PN455

THE SENIOR DEPUTY PRESIDENT: Secret ballot, whatever, I think we should stay at least for the time being with the words used by the union in its written submissions of 20 November. It's to direct the parties to settle a question and conduct a joint ballot of employees' views. That is the way it's put, at the bottom of page 6.

PN456

MR DIXON: But that wouldn't alter - - -

PN457

THE SENIOR DEPUTY PRESIDENT: But I understand the submission that you make. Yes, all right. Before we go into that, could I go back to the first issue I raised? Has there been any conciliation at all in this? Commissioner Larkin, as I understand it. There wasn't any transcript of what occurred before her but I understand that pretty early on in the piece the question of whether a ballot could be arranged arose before her and the issue then of her not being able to entertain such a request, it having to go to a presidential member or a full bench rather stopped her in the tracks, I thought fairly early on.

PN458

I did not have the impression that there was really any attempt, no criticism of the Commissioner, any attempt at conciliation, in the traditional sense of the parties sitting around the table with a member of the Commission to try and see if there is a way of resolving the matters in issue before launching into these interesting areas that we've now been considering for a few days.

PN459

MR DIXON: Your Honour, I need to just confirm instructions in relation to that but might I indicate to your Honour this, though. It very much depends on what the issue is and it comes back, I regret to say, your Honour, to what the union has done in relation to its notice.

PN460

THE SENIOR DEPUTY PRESIDENT: Its section 99 notice?

PN461

MR DIXON: No, it's section 170 notice, MI notice.

PN462

THE SENIOR DEPUTY PRESIDENT: Yes.

PN463

MR DIXON: Because in relation the section 99 notification, as I understand the position, your Honour, that there's been no dispute finding separately from that.

PN464

THE SENIOR DEPUTY PRESIDENT: Correct.

PN465

MR DIXON: And that was my understanding from your Honour's most recent decision.

PN466

THE SENIOR DEPUTY PRESIDENT: Correct, I've no dispute made consistent with the terms in which the union then asked me to make it. It being a dispute that arose out of the section 170 MI notice. I have foreshadowed, though, because of evidence I have heard, I might have, myself, identified a pending or probably dispute but have not done that.

PN467

MR DIXON: And your Honour has not done that and, in my respectful submission, until such time that your Honour does that, and I don't want to take us off on a separate course, there is no request for the making of an agreement in respect of that dispute and no 170 MA powers arise in relation to that dispute, but I can leave that for the moment.

PN468

THE SENIOR DEPUTY PRESIDENT: I think that's right, I think it is under the 170 MI notice or, obviously, the Commission or a failure dispute, yes.

PN469

MR DIXON: Your Honour, regardless of the extent to which the parties have spoken about the matter, if your Honour accepts that, presently, there is only one request for the making of an agreement pursuant to the section 170 MI notice, it is the making of an agreement in respect of an earlier dispute finding by Commissioner Raffaelli, which your Honour identifies. In relation to that procedure, if it does give rise to a general power in the Commission to conciliate then, as I understand it in my instructions, there has been no conciliation in respect of the terms of the agreement that might be made or the scope of the agreement or opposition to particular terms of the agreement.

PN470

THE SENIOR DEPUTY PRESIDENT: That's what I had understood.

PN471

MR DIXON: Yes, and that's my understanding of the position.

PN472

THE SENIOR DEPUTY PRESIDENT: It seems to me that if I follow through what seems to be the course, that the Act suggests members should follow, the first thing I should do is form the view that we aren't going to get very far on conciliation or perhaps we will.

PN473

MR DIXON: On the context of the notice and the matters that the notice provide.

PN474

THE SENIOR DEPUTY PRESIDENT: Yes.

PN475

MR DIXON: I respectfully do not suggest that your Honour's tentative views might have to be explored but the union has made no attempts, particularly of late, to pursue the making of an agreement in particular terms. It has fixed upon a course starting with the proceedings before Commissioner Larkin whereby it is wanting some order or other from the Commission and it's very important to bear in mind how the matter ended up before your Honour, and your Honour is not unaware of that, but the reason, it seems, that your Honour got it is that a presidential member has to exercise the powers that were being asked for under section 135.

PN476

What has now happened, and this is the argument that I would seek to develop, if your Honour would entertain it, in opposition to the orders sought, is that one can't circumvent preconditions in section 135 and say, Oh, I'd now like the powers exercised under 111(1)(i).

PN477

THE SENIOR DEPUTY PRESIDENT: I think I understand how you put that argument, I don't know that I would necessarily agree but the reason I say I don't know that I would necessarily agree is that I think I need to compare what I would be inclined, if I got to that stage, to be the subject of direction and compare it with secret ballots under 135 and decide whether it's really one and the same thing that I'm doing for the purposes then of saying, I don't think I have this power under 111, because it's 135 is the place that I should be exercising this power. MR DIXON: The only difference, as I understand it, between the application being made to the Commission pursuant to section 135 was it was realised that the question couldn't be put to non-members, 135 was abandoned and said you can do the same thing under 111(1) and the union can't shift away from its true intent in that regard, your Honour.

PN478

SENIOR DEPUTY PRESIDENT: What I'm going to do now though is talk with the parties in conference about whether there is really any likelihood of a conciliation arising out of the request that the Commission does conciliate in the section 170MI notice, whether there is any likelihood of that being useful or perhaps achieving some sort of resolution between the parties because I think that is the first thing that the Commission should do.

PN479

MR DIXON: Your Honour, might I just say this in relation to it, if your Honour wishes that course, I simply would reserve Serco's rights in respect of whether such conciliation is open.

PN480

SENIOR DEPUTY PRESIDENT: Yes, I'm sure the conciliation is open, you couldn't suggest that sitting around talking to the parties and requiring the parties to sit around and talk to the member of the Commission about the matters raised by the section 170NA notice isn't open.

PN481

MR DIXON: It depends in what context though and for what purpose because - I'm sorry if I'm labouring this, your Honour, section 170NA, well, perhaps I can put it differently: it's interesting to see that in part 6B there is no express reservation of the power to conciliate generally and there is no provision which says that once you've filed your notice you can ask the Commission to conciliate.

PN482

That's got to be derived from the words of what the section 170NA it seems, in contrast to the other provisions which expressly preserve conciliation. I simply raise that and seek to reserve my rights in relation to that issue.

PN483

SENIOR DEPUTY PRESIDENT: I understand that. I'm going to adjourn now into conference.

ADJOURNED INTO CONFERENCE [10.50am]Y

RESUMES [12.10pm]

PN484

SENIOR DEPUTY PRESIDENT: Having been in conference with the parties I've formed the view that it's unlikely that any resolution would be able to be achieved, so I have decided that we will now resume where we left off a little earlier today. Mr Dixon?

PN485

MR DIXON: Thank you, your Honour. I mentioned to your Honour the submission that Serco wishes to put in relation to the specific power overriding the general powers available under section 111. May I take your Honour to the commencement of my submissions in relation to that matter to the submissions filed by the union on 21 November 2000 which I think your Honour has to hand.

PN486

Might I ask your Honour to go to paragraph 1.1 where it was said that:

PN487

The LTBU has now had the opportunity to reconsider its application in the light of the discussions in conference between ...(reads)... which holds employees rather than just union members' views.

PN488

So, it's very clear that the strategy that the union is adopting was to try and overcome the specific restrictions contained in section 135. The matter was further developed in paragraph 3.1 where there is a reference to section 170NA and your Honour will see in 3.1 it is said that:

PN489

The LTBU has notified a bargaining period and requested the Commission's assistance in that connection.

PN490

Section 170NA of the Act provides as follows, it is important I think, to distinguish, as your Honour has been doing today, about the application of 170NA appears only to be in relation to the notice which arises from an intention to make an agreement in respect of the industrial dispute found by Commissioner Raffaelli. But in 3.2 it is said:

PN491

The Commission as presently constituted is dealing with the matter of ...(reads)... the form and future industrial regulation of these employees.

PN492

Might I ask your Honour just to go back to the wording of section 170NA(1), the powers are in relation to a matter arising under this part, the issue which I referred to earlier is whether it can be said that that dispute which is there identified by the union, is a matter arising under part 6B, it is in my respectful submission, not. In paragraph 3.3 it is said:

PN493

Once the Commission is seized of the matter and it is exercising its conciliation powers ...(reads)... to call in aid.

PN494

That, in my submission, your Honour, is not correct, that is not a consequence of the Act and where there are express powers which override any particular power in section 111(1) then all the conciliation powers are not available to the Commission as is there suggested. Might I also just remind your Honour and I'll do this as expeditiously as I can because I know your Honour has recently gone back to the transcript of particular matters put by the union on 16 November when the issues were addressed.

PN495

Paragraph 26 of the transcript of 16 November contains some submissions made by my learned friend, Mr Nolan and the Commission will see that Mr Nolan sets out the union's position and he says about line 4:

PN496

Now, the union raised section 135 and Commissioner Larkin quite rightly drew attention to ...(reads)... another member of the Commission, namely, a presidential member.

PN497

Then 27:

PN498

That is how, as I understand it, the matter comes before you but, of course, that does not provide ...(reads)... all of which satisfy the statutory definition of industrial dispute.

PN499

The submission that I'm making to your Honour applies irrespective of what industrial dispute one was to look at in one sense but as I indicated to your Honour earlier, the only industrial dispute identified in any notice seeking the making of an agreement is the one originally found by Commissioner Raffaelli which was the unpinning industrial dispute for the making of the consent award.

PN500

In paragraph 46 through to 50 in an exchange with your Honour it was clarified that the union accepted that its position could only, if it was to get anywhere, come within section 135(1) and it was said that that was the appropriate provision. In paragraph 48 the other subsections were discounted, at 49 your Honour seeks clarification in relation to that by putting the question very squarely to Mr Nolan and my learned friend then answers in paragraph 50 and says:

PN501

The section is confined to polling the attitudes of members of the PTU, so that is right.

PN502

Might I also just remind your Honour about the two other passages? One is at paragraph 110. At 110 it is clarified perhaps a little more clearly that in seeking the exercise of the powers under section 135, the union was doing so.

PN503

In the Commission exercising a conciliation power as requested by the union in connection with the bargaining period.

PN504

and particularly the last sentence of that submission at paragraph 110. Might I then also just draw your Honour's attention to paragraphs 116 and 117 about point 8 or 9 on that page towards the end of paragraph 116:

PN505

In other words that is reasonable and perhaps necessary or at least I think it is collateral ...(reads)... conciliate upon the demands raised on the notice to bargain.

PN506

117. So, that is the way we come to the contention that the Commission may, and indeed should, use section 135 if the conditions so warrant it but of course each case will depend on particular facts and circumstances that may be thrown up, etcetera and then that mentions developed. On one reading of those submissions, it is clearly the union's contention that the basis upon which it was asking the Commission to exercise the powers under section 135 was that the notice initiating a bargaining period with a request that the Commission exercise powers of conciliation enlivened the Commission's conciliatory powers in respect of that identified dispute and the agreement sought in relation to that dispute.

PN507

However, regardless of any other dispute that might be under consideration, in my respectful submission, the orders that the union asks the Commission to make pursuant to section 111(1)(d) and (1)(t) are precluded by reason of the specific provisions in section 135. May I take your Honour to - - -

PN508

THE SENIOR DEPUTY PRESIDENT: Does it matter whether they're D or T in respect of this argument - whether they would issue under D or T in respect of this argument?

PN509

MR DIXON: No, your Honour.

PN510

THE SENIOR DEPUTY PRESIDENT: Yes, proceed.

PN511

MR DIXON: Might I take your Honour to the commencement of part 6 of the Act, division 3, which contains the particular powers of the Commission, including 111? Of course shortly after that is 111AAA which your Honour is familiar with and I will take your Honour in due course to one of the decisions that your Honour was involved in in the Full Bench and looking at how those provisions interacted with part 6B. However, may I then move on to division 4 of part 6 and your Honour will see that this division concerns the particular powers of the Commission in respect of ordering ballots?

PN512

PN513

The division is comprehensive. Section 135 deals with a number of alternative circumstances which your Honour is familiar with. 1 and 2 are the powers that may be exercised by a presidential member or a Full Bench because of the operation of section 135(3). The union, on 16 November, identified that it could only come within section 135(1) and may I just spend a little time in reminding your Honour of the terms? It says:

PN514

Where an organisation is concerned in an industrial dispute with which the Commission ...(reads)... for the purpose of finding out their attitudes to the matter.

PN515

135(2) deals with a similar power exercisable if the conditions in relation to industrial action are met. Section 2A and 2B are other express powers in relation to the Commission being satisfied about a valid majority or the taking of industrial action. Section 136 allows members to make an application for a secret ballot. 137 caters for the scope of the directions for secret ballots which the Commission might make. Section 138 makes provision for the conduct of the ballot and might I just draw your Honour's attention to section 139? It says that:

PN516

In any conciliation or arbitration proceeding before the Commission in relation to ...(reads)... or section 136, the Commission shall have regard to the result of the ballot.

PN517

So, it is clear that it is contemplated that the powers exercisable under division 4 are exercisable either in the Commission exercising conciliation proceedings or arbitration proceedings. However, your Honour will note that the powers are specific to particular named and identified circumstances; in particular circumstances, namely those set out in section 135(1) and (2). The powers are only exercisable by a presidential members, as I mentioned, and that is important. It is very important in the context of assessing the position that the union now puts.

PN518

It is also clear that when the union appeared on 16 November, it squarely put to the Commission that it was only section 135(1) that had any potential application; namely, it was in relation to an industrial dispute as identified. It appears that the Act contemplates that the powers available under section 135(1) are exercisable in conciliation proceedings for the purposes as set out in section 135(1). Your Honour, it is also clear and accepted by the union that those powers are exercisable under section 135(1) only by a presidential member and that the powers are confined to a ballot of union members, not just anyone.

PN519

The Act is very clear in that regard. In my submission, your Honour, the effect of the legislation and Parliament's intention was to limit the powers of the Commission in a situation which comes within the circumstances set out in section 135(1) and it was limited to a presidential member making any order, such order being made in respect of union members only. So that, as the union contended on 16 November if there is a claim, as there is here, that the attitudes of members might help and that remains the union's claim then the scope of the power available to deal with that is expressly confined to the circumstances in section 135.

PN520

Your Honour, the specific and limited power available to a presidential member clearly indicates that it is not intended that under section 111(1) any member of the Commission could order a much wider ballot. It goes contrary to the well established principles of interpretation. In other words, if the union could rely on section 111 it means that any member of the Commission, not only presidential members, could do under that section what under section 135(1) only a presidential member could do. It also means that any member of the Commission, not only a presidential member, could go further beyond union members and seek the views of everyone.

PN521

THE SENIOR DEPUTY PRESIDENT: I'm surprised this would be the first time this is raised, Mr Dixon.

PN522

MR DIXON: I'm sorry I couldn't hear.

PN523

THE SENIOR DEPUTY PRESIDENT: I'm surprised this might be - well, it's the first time I've had to consider the argument but I'd be surprised if this is the first time this consideration has been raised before one of my colleagues necessitating any decision because this has been an issue long before AWAs became a feature of the Act. It has nothing to do with them. It's a question of construction of the Act as to how one reads 135 and 111, both of which or their predecessors have been around for some time. Have you had any opportunity to consider any published decisions?

PN524

MR DIXON: Yes, your Honour, we've certainly searched for earlier decisions and there is no case that I'm aware of that expressly addresses the issue in the context of the legislation as it presently is.

PN525

THE SENIOR DEPUTY PRESIDENT: I might just interpose there, sorry to do so, I know at some stage I searched the published cases under section 135 and this point hadn't arisen at all. When I say that I think probably only on the way in which our facilities now are structured, I probably only went back to '97 in that short inquiry.

PN526

MR DIXON: There is a decision of - it might have been Deputy President Duncan as he then was in relation to whether under section 118A in its previous form, I think, which requires the views to be ascertained whether that permitted the exercise of powers under section 111 and his Honour adopted that course. But I've got an argument which I want to put to your Honour about how one ought to properly see the position in relation to section 118A and the provisions there and also elsewhere in the Act. But I'm not aware of a case despite our searches which addresses it squarely at the moment.

PN527

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN528

MR DIXON: The union seeks to get some help, for example, out of the Telstra decision but, your Honour, that case doesn't really assist your Honour in my respectful submission because, as I understand it, the question there arose as to whether under a dispute settlement provision certain conciliation powers were available. The Full Bench went on to say that the conciliation powers as contained in section 111 might be available but it requires a further step which is whether other express powers overrule the particular ones. Your Honour I know is familiar with the principles enunciated by the High Court on this. Your Honour has applied them both at first instance and on a number of Full Benches but I did think it would be helpful if I could make some photocopies available to your Honour of the decisions which encapsulate the point as I seek to make it.

PN529

Your Honour, the first decision I wanted to remind your Honour of is The Queen v Saraswati reported in volume 172 CLR at page 1. Your Honour will see on page 2 that there were dissenting judgments by Deane and Dawson JJ but the passage which is quoted from time to time mostly is that in the judgment of McHugh J. It concerned a criminal law issue in relation to the particular charges that might be brought for certain indecency offences but at page 23 his Honour referred to as what he described as the second rule in interpretation:

PN530

When a statute specifically deals ...(reads)... or limitation.

PN531

HER HONOUR: Where were you reading from then?

PN532

MR DIXON: It's at page 23 just above the last sentence about the context of section 61 and as your Honour will then see under the heading the context of section 61E his Honour said:

PN533

The second of the two considerations -

PN534

that's the one I've just drawn your Honour's attention to -

PN535

- is concerned with the context of section 61(2). It is convenient to begin with a consideration of Anthony Hordern -

PN536

that's a passage which I think your Honour is familiar with. Going on to what their Honours went on to say:

PN537

An affirmative grant of such a power so qualified ...(reads)... prescribed by the provision.

PN538

Then his Honour said:

PN539

The principle that a statutory power ...(reads)... has been recognised in this court on other occasions.

PN540

Then there is reference to The King v Wallis and Leon Fink and there's a passage from the decision of Mason J in Leon Fink and your Honour will see in the next paragraph how his Honour went on to apply that. At about point 5 he said:

PN541

It is intended that a general power to be ...(reads)... placed on section 61E.

PN542

Your Honour, I don't probably need to emphasise the very specific pre-conditions that are contained in section 135 but the two critical ones are of course that the power can only be exercised by a presidential member and secondly that it is confined to members, union members. It's no answer to say that well there is now a presidential member exercising that power. When one is construing the power one would have to ask whether any member of the Commission can do what the union is asking the Commission to do and that would squarely fit within the express limitations that the High Court refers to in that decision.

PN543

Through your associate I've also made available to your Honour the decision in The King v Wallis 78 CLR at 529. I know your Honour has looked at this one in the past as well and it did concern questions that arose under the Conciliation and Arbitration Act. At page 540 in the judgment of Latham CJ his Honour was looking at the question of whether an express power to grant limited preference to unionists permitted a much wider preference power and in the first paragraph at 540 he says:

PN544

It is argued that a claim that employers ...(reads)... in any award.

PN545

It is the same principle. There is in the judgment of Dixon J at 549 through to 551 a more general and detailed discussion of the matter starting at the bottom of 549, saying:

PN546

The powers of a Conciliation Commissioner to make a binding award or order with respect to a question ...(reads)... conferred by section 56

PN547

And it was the interaction between section 56 and the more general power that was under consideration.

PN548

SENIOR DEPUTY PRESIDENT HARRISON: Is Section 56 set out in this decision? I'd be interested to know what its terms were.

PN549

MR DIXON: I think it is, your Honour. I'll look for it. At the top of 542. Section 56 contains the following provisions.

PN550

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.

PN551

MR DIXON: May I highlight at page 550 and 551. It starts in the first paragraph on page 550: "But upon such matters" and then in the next paragraph also his Honour said:

PN552

This applies especially when the power of duty affirmatively conferred or imposed is qualified by some condition, limitation or direction

PN553

SENIOR DEPUTY PRESIDENT HARRISON: They're the Citicorp words I think. I'm pretty sure. The Citicorp decision words when the High Court was trying to construe what the opening words - it was maybe then section 41(1)(d) but what it meant when the Act said, subject to this Act, and I think they're the words that found themselves subsequently in the Citicorp case, namely - I won't try and guess, I'll ask you to assist me in relation to the Citicorp decision, to the argument you now put.

PN554

MR DIXON: I will have a look at it your Honour. There is also at 551 reference to Anthony Hordern.

PN555

SENIOR DEPUTY PRESIDENT HARRISON: I think I understand, unless there's a particularly attractive way in which the principle is put in Anthony Hordern, I don't think I need be taken to it.

PN556

MR DIXON: At page 7 and 20 in that decision.

PN557

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN558

MR DIXON: The decision in Bain which was referred to this morning does not deal with the specific powers and did not deal with this issue, in our respectful submission. There was a concentration there in the passage referred to about the ambit of the prospective or actual dispute and that comment was more directed to that issue.

PN559

SENIOR DEPUTY PRESIDENT HARRISON: Before you go to the next point or continue to develop this argument, this is something that I raised earlier: It seems to me that when considering whether it is right that what in effect the union is now seeking through my use of section 111 powers rather than the 135 is really one and the same. It might be put differently, it might be phrased differently but it is one and the same objective that they seek, namely to poll the views of members and non members.

PN560

Is it important that I consider this argument specifically by reference to the words of the question that is sought or just to the fact that any question which has as its objective the polling of views of members and no members because it does concern me that at the end of the day, even if I was against you on this question, I still may not be attracted to the questions as are drafted.

PN561

MR DIXON: That's true. The latter is a discretionary argument as to whether your Honour would exercise the discretion to order that a whole group of employees other than only members be polled. There is no application before your Honour under section 135(1), that's been abandoned, so that the question in the first instance is, if your Honour had no power to poll or have a ballot conducted in relation to all employees, that's the end of the matter. If your Honour is of the view that there is the power then I would be putting submissions to your Honour as to why your Honour should not exercise a discretion to do so for all the difficulties.

PN562

SENIOR DEPUTY PRESIDENT HARRISON: I do understand that. Let's put to one side the actual terms of the questions that have been drafted. The consideration is, do I have power under section 111 to direct that the views of all employees about a matter be sought.

PN563

MR DIXON: That would be the first question. The second question would be whether your Honour has the power to ask all employees under section 111 about their preferences as to the mode of operation.

PN564

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I think I can be that specific, can't I. My question was just too general. Of one thing we're fairly clear, the question will go to expressing a preference - - -

PN565

MR DIXON: As to mode of operation.

PN566

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN567

MR DIXON: But in one sense my argument doesn't need to get to that stage because if there is no power to direct a ballot of non-members then that is the end of the matter regardless of what is being balloted. Separate and additional considerations arise when one considers the actual ballot issue. There is other legislative support, in my respectful submission, for the interpretation that we put forward. A division 3 agreement by operation of section ..... on its face is said to be binding on members of the organisation. Section 170NA does not alter the position. It is not a provision which creates a separate and wider jurisdiction which overrides or gives an express power to the Commission to do anything under section 111(1) which is specifically catered for in another division of the same part of the Act.

PN568

The other provisions to which I should draw your Honour's attention are firstly section 118A. Your Honour will recall that 118A subsection (2) requires the consideration of the wishes of employees who are affected by the dispute and whether the Commission considers it appropriate to also have regard to various things set out in subsections (a) to (b). Those requirements operate, of course, on section 111A(1) which concern the Commission's powers in respect of a demarcation dispute.

PN569

Your Honour will recall that the definition of industrial dispute is defined to include a demarcation dispute and includes a demarcation dispute and a demarcation dispute in turn is defined in section 4(1). So the powers exercisable under section 118A(2) being conditioned by section 118A(1) are in relation to an industrial dispute and that is specifically catered for by section 135(1) which talks about an industrial dispute.

PN570

It was in this context that - but before I draw your Honour's attention to a case which dealt with a similar position, might I put this submission, that the fact that section 118A(2) requires the Commission to take steps in the particular way, does not enlarge the Commission's general powers. It is a specific power to be exercised for a specific purpose and it does not mean that section 111(1) is generally available in a way that circumvents the specific conditions in section 135. The decision of Deputy President Duncan to which I referred is one in Southcorp v National Union of Workers, 9 February 1998, print P8684 and I have a copy, although it's an internet copy, if it's of any assistance to your Honour.

PN571

THE SENIOR DEPUTY PRESIDENT: Was this appealed? You're not aware?

PN572

MR DIXON: I need to just double check that.

PN573

THE SENIOR DEPUTY PRESIDENT: Yes, would you. In another context I was looking at 118A - there's certainly an appeal against Deputy President Duncan and I'm just wondering whether it was this matter or whether it's just a coincidence that it was about the same time and that it in fact has nothing to do with this and that there was on review of this decision.

PN574

MR DIXON: I would need to just double check that, if your Honour wouldn't mind.

PN575

THE SENIOR DEPUTY PRESIDENT: We can do that most readily and will do it soon. Yes, continue.

PN576

MR DIXON: The decision I've just handed to your Honour is one in which it appears that his Honour exercised his powers under section 135, it appears from the introductory remarks of the decision, and his Honour in the end just allowed for a petition that had been obtained to satisfy his requirements under section 118A(2) and rejected the ballot under section 135. The other decision to which I need to take your Honour is another one of Deputy President Duncan as he then was but this was on 10 May 1996 under the legislation as it then was in the CFMEU v Dalrymple Bay Coal Terminal, print N1561. In the second paragraph in the first page his Honour recorded that:

PN577

In an earlier decision in this matter President O'Connor determined that a ballot ...(reads)... the representative withdrew.

PN578

It was in the context of a section 118A application but it's a decision where his Honour appeared to be of the view that either would be available but the issue as I've raised with your Honour was not debated.

PN579

THE SENIOR DEPUTY PRESIDENT: It just so happens in 118A orders the first of the considerations that you raise doesn't arise because only presidential members can issue 118As, but the fact that a 118A can impact on non members' as well as members' rights to be represented by a particular union means that if you exercise it, the only way you exercise usefully some power to ascertain views of employees is all employees.

PN580

MR DIXON: That might be the case, but my response to that is that section 118A, being a specific code, as it were, dealing with that issue makes express provision for that to happen.

PN581

THE SENIOR DEPUTY PRESIDENT: Well, it tells you you must have regard, probably it says nothing about how one goes about having regard to the wishes of employees.

PN582

MR DIXON: As Deputy President Duncan in the earlier case said, there was a petition and that satisfied him, so it doesn't really establish that there is a power to order a secret ballot of employees. The other provision which I should probably just draw your Honour's attention to again is section 111AAA. That is also a provision which involves the ascertainment of views, AAA(2):

PN583

In determining the public interest for the purpose of subsection (1) the Commission must give primary consideration ...(reads)... of those employees.

PN584

Again it is a specific power given to the Commission in relation to a specific identifiable situation and that's got to be contrasted with the way in which the union's present case fits squarely within the words of section 135(1), and not in a way that brings it within any of the other particular circumstances where an express power of a different nature is set out. The same goes for section 170MH(2). This is for termination of a certified agreement in the public interest after the nominal expiry date. Again there is a specific power to the Commission:

PN585

On receiving the application the Commission must take such steps as it considers appropriate ...(reads)... terminated.

PN586

That is not a ballot of the kind required or as sought here. Might I then also move on to indicate to your Honour that in part VIB division 8, which contains the provisions for negotiations for certified agreements and in which section 170MA is to be found, the availability of powers for the ordering of a ballot is recognised by section 170MQ, so that if one looks at Division 8 of Part 6B it's clear that where it refers back to ordering of ballots it is by reference to section 135(2) in respect of section 170NQ(1) and 135(2B) in respect of 170NQ(2). The Full Bench in the decision of Davids Distribution Pty Ltd v National Union of Workers of 3 August 1998 of which your Honour was a member, looked at the overall functions as it were of the Commission under power 6B and the inter-relationship between those sections and section 111AAA as your Honour will no doubt recall.

PN587

I have a copy of that decision. It's print Q4404, your Honour.

PN588

THE SENIOR DEPUTY PRESIDENT: That one I think went to the Federal Court but I think we survived.

PN589

MR DIXON: Yes.

PN590

THE SENIOR DEPUTY PRESIDENT: I remember those ones quite well. I'm reasonably sure, but I shouldn't be too flippant about - I think that is something I can check readily.

PN591

MR DIXON: I've got the Federal Court one, yes.

PN592

THE SENIOR DEPUTY PRESIDENT: Yes and just surmising probably isn't an important point. I don't think on any matter relevant to what you now are addressing did they disagree, yes.

PN593

MR DIXON: That's correct, your Honour. I must say this decision doesn't squarely address the issue.

PN594

THE SENIOR DEPUTY PRESIDENT: No, I remember. It was a construction decision though.

PN595

MR DIXON: It's a construction argument that the specific overriding the general principle is adopted and there are some remarks in the judgment of your Honour and the other members of the Full Bench which emphasises the role under Part 6B to which I just wanted to draw your Honour's attention. It was a case of course in which it was argued that by operation of section 111AAA the bargaining period could be terminated and that immediately illustrates for your Honour the specific and general power argument. It was held that the specific powers determinate the bargaining period under section 170NW were the ones that were operative, not section 111AAA. I'm sorry, your Honour, I've just noticed the time. I don't know what would be convenient.

PN596

THE SENIOR DEPUTY PRESIDENT: Yes, well we're going longer than we all estimated this matter might. Are counsel both available this afternoon.

PN597

MR NOLAN: Yes.

PN598

MR DIXON: Yes.

PN599

THE SENIOR DEPUTY PRESIDENT: All right, is two o'clock all right. We'll adjourn till two o'clock.

LUNCHEON ADJOURNMENT [1.00pm]

RESUMES [2.05pm]

PN600

THE SENIOR DEPUTY PRESIDENT: Mr Dixon?

PN601

MR DIXON: Thank you, your Honour. Your Honour, during the break your associate was kind enough to make available to us photocopies of that decision in Citicorp reported at 167 CLR at 513 and it's re Australian Bank Employees Union ex parte Citicorp Australia Limited. I'm indebted to your Honour for drawing this to our attention. At 518 to 519 is the passage dealing with the remarks by the High Court in their judgment concerning the introductory words to section 111 subject to this Act and at the top of 519 there is the passage which I think your Honour had in mind.

PN602

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN603

MR DIXON: That is referred to in the decision of the Full Bench in the matter of the CPSU v Telstra Corporation Limited to which Mr Nolan has taken your Honour, or referred to print S.7179 at paragraph 15. It was applied in a manner in that case but in relation to the powers that were available under the dispute settlement clause. May I also just indicate, your Honour, that in relation to the Davids Distribution case the Federal Court decision is 1999 FCA 850 25 June 1999 under the name, Davids Distribution Pty Limited v The Honourable Ian Ross. That's as it appears in the internet copy.

PN604

Lastly by way of housekeeping in one sense the decision in Davids which was subject to those Federal Court proceedings to which I referred earlier, print Q4404 is now reported in 83AR239. It's to that decision that I now wish to take the Commission if I may. Your Honour, I'm sure recalls the issues in that case where the Commission at first instance concluded that the specific powers under section 170MW excluded the operation of section 111AAA. In the Full Bench proceedings at paragraph 15 the Commission looked at the two central issues and makes reference in paragraph 16 to the fact that the powers under part 6B and so on may rely on both heads of power.

PN605

Towards the end of paragraph 18 which on the copy I handed your Honour I think is page 8. The Full Bench on what your Honours had said:

PN606

The functions performed by the Commission under Part 6B are primarily those associated with the conditioned ...(reads)... terminated certified agreements under provision 7 of Part 6B.

PN607

Then in 19:

PN608

Division 8 of Part 6B...

PN609

and that one that your Honour is most particularly concerned with it seems

PN610

...is concerned with the negotiation of certified agreements. It is in that context that provision is made for the ...(reads)...associated in certain circumstances with the power to exercise conciliation and arbitration.

PN611

Etcetera. Then there was reference to that, particular provisions in MY.

PN612

I then go to paragraph 20 where it was said:

PN613

It is apparent from the review of Part VIB of the Act that it was framed to confer a legislatively discrete set of functions on the Commission.

PN614

Might I pause there? That clearly is relevant in the present circumstances. Continuing:

PN615

The scheme of Part VIB and of Division 8 of it in particular allows ...(reads)... and sections 170ED and JE.

PN616

Then paragraph 21:

PN617

The distinctions reflected in each of these provisions ...(reads)... of that differentiation.

PN618

But the thrust of course, your Honour, is that the powers under Division 8 of Part VIB are for a performance of a discrete function and it would not be in my respectful submission a power exercisable to encourage one way or the other a preference as to whether someone is to enter into an AWA under a different part and division as opposed to the functions to encourage the making of a certified agreement under Part VIB. The case is also support for the general contention that the specific provisions in Part VIB, such as in that case section 170NW, override the more general powers, such as those concerned in section 111AAA and the same principle should apply in respect of section 135(1) and section 111(1).

PN619

I should however draw your Honour's attention to the fact that there is an express exclusion in Division 8 Part VIB to any exercise of the powers under section 111(1)(g) and that is to be found in section L - - -

PN620

THE SENIOR DEPUTY PRESIDENT: A, I think.

PN621

MR DIXON: Yes, your Honour, it's subsection 3.

PN622

THE SENIOR DEPUTY PRESIDENT: Yes, that's the one.

PN623

MR DIXON: But that would not mean that the rest of section 111 is available without reference to the more specific powers. Your Honour, the position therefore is this. The union having recognised the limitations which are imposed by section 135 have sought to circumvent those limitations by calling in aid section 111(1)(a) and in my respectful submission the application or its application should be rejected in the sense that the Commission has no power to make the orders as sought. If you are against Serco in that regard I would address your Honour in relation to any discretionary issues that would weigh against the exercise of any power even if it were to exist.

PN624

Your Honour, the first proposition is that the Act allows a complete choice in respect of the form of agreement which might be reached between employers and employees and/or organisations. The Act specifically gives protections to the parties in pursuit of that choice. Section 170NC is an example and section 170WG is another example. The Act in fact gives parties to a proposed agreement a great deal of protection in order to persuade the other side to make an agreement on the terms that it seeks. Part VIB Division 8 and section 170MI is a starting point which has been relied upon by the union here is an illustration of that; also, relevantly, section 170ML, MT and MU.

PN625

In relation to AWAs, Part VID and Divisions 8 and 9 provide similar protections. Section 170WB through to 170WHA are all provisions designed to protect parties in pursuit of their particular choices. The fact that the Act does not give any preference to one form of industrial regulation over the other has recently been emphasised in the Federal Court decision in Burnie Port Corporation Pty Limited v Maritime Union of Australia 2000 FCA 1768, a decision of 6 December 2000 of the Full Court and I have a copy for your Honour. Your Honour, this decision concerned the question of whether Burnie Port Authority by making it a condition of employment that an employee enter into an AWA committed a breach of the freedom of association provisions under Part 10A.

PN626

At first instance that was a conclusion reached but on appeal it was overturned and in doing so their Honours Wilcox, Kiefel and Merkel JJ emphasised the absence of preference in the Act to one form of regulation over the other. At paragraph 17 your Honour will see some reference to that. They refer to the third in our view substantial ground argued and then can I move on to 25. Your Honour will see the union claimed that its interpretation gives effect to the legislature's intention that an employer may not discriminate between employees by imposing upon actual or prospective employees the employer's preferred mode of industrial regulation. Then 27:

PN627

Each mode of industrial regulation under the Act ...(reads)... for their particular circumstances.

PN628

And in 28:

PN629

In the circumstances we are unable to discern any legislative ...(reads)... rather than the other.

PN630

And then they say "put differently there is the further proposition". The union has made its position clear by initiating a bargaining period. It has rights under the Act to pursue as best is available to it the protections under the Act. Serco's position has been and is that its preferred mode of industrial regulation for all its employees employed on this contract is by means of AWAs underpinned by a consent award made between it and the ARTBIU and CEPU in 1998. It cannot presently on what is put to it by the unions identify any benefit to its operations by having the agreement as proposed. Your Honour would appreciate that the parties cannot be forced to make agreements by anything that the Commission might decide to do in a case like this. Their choice remains subject to the rights under the Act and the prescriptions under the Act.

PN631

The Act does not permit a union in any way to utilise provisions of the Act to obtain the preferences of non members as to the mode in which they would prefer to have their employment governed under the various options under the Act. It is in fact none of the union's business as to what non union members choose. This approach here is encroaching upon the choice individuals have to not have the union interfere with their stated position. If the union has support for its position it can activate any particular course under the Act that is available.

PN632

Another factor which arises is the operation of section 170 VQ6. The provision which gives supremacy to the AWAs, your Honour, in respect of any certified agreement. The present AWAs, as I will demonstrate to your Honour in a moment by tendering a schedule, have a lengthy period to run. There is no possible purpose to be served in asking a question of persons as to some future event which is dependent or may be dependent on a whole range of changed circumstances or event, particularly since there are only a very small number of employees who had not elected, even in the renewed round of negotiations, to take up AWAs. The details of that are contained in a schedule which I seek to tender, your Honour. Your Honour, I had schedule 1 in respect of the CEPU and one for the RTBU. I don't need to take your Honour through that.

PN633

HER HONOUR: No. The structure of at least one of these was explained to me in a conference. So that doesn't need to be addressed again. I can't recall where I have got to in terms of marking exhibits.

PN634

MR DIXON: I don't know if I have got any exhibits. I think Mr Nolan had a couple.

PN635

HER HONOUR: This is probably a good time to raise this; I marked a number of exhibits tendered by Mr Nolan on 16 November. I then had before me and had listed, I suspect, the section 170 MI notice and the section 99 matter. I marked in those matters without however identifying the issue about whether it would be procedurally desirable to make it clear that the two matters were continuing side by side or joined. It was not a matter that I was required to consider prior to marking the exhibits. But there are two exhibits that are there marked.

PN636

So we now get to this hearing today where I have had listed the three matters; the third now being the section 101, but that is probably gone, dealt with to finality. But nonetheless I did list that on today's hearing. So whatever else we are unable to agree on, can you both agree that maybe I should start marking documents again? Or I would be inclined perhaps to continue to mark them by reference to the C No 23187, the initiation of a bargaining period and C No 23602, the section 99 dispute. I can see all sorts of arguments as to whether I should or shouldn't do that.

PN637

MR DIXON: Your Honour, the section 99 dispute is really the one in relation to which the section 101 application was made. As I understand it no dispute finding was made in relation to that. No notice of initiating a bargaining period is made in relation to the alleged industrial dispute. So it seems preferable, in my respectful submission, that that matter be put to one side.

PN638

HER HONOUR: So you are saying that your exhibit should be marked in the notice initiating the bargaining period, 23187, in respect of which conciliation has been requested and my powers under 170NA are being asked to be exercised.

PN639

MR DIXON: Yes.

PN640

HER HONOUR: Mr Nolan, can we agree on that much?

PN641

MR NOLAN: Yes, I think we can agree on that.

PN642

HER HONOUR: Yes. I should make it clear, and I don't know I'm trying hard to accommodate some one who might have to review in due course why I am doing this, but I am because I can see an issue about whether I might not have had power to exercise it by reference to that dispute, but mixing the two up I might have. In fairness, I think I should indicate to you that I'm alive to that possibility. But thus far I am concerning myself with whether I can do what I am being asked to in the exercise of 170NA powers.

PN643

MR DIXON: Yes.

PN644

HER HONOUR: Yes, all right. I might put these two together as one exhibit. It will be Serco 1.

EXHIBIT #SERCO 1 SCHEDULE 1, CEPU AND RTBU

PN645

MR DIXON: I don't believe I need to really take your Honour back to that exhibit Serco 1, other than to say that there are only a very small number of employees who may be members of the RTBU who have not signed new AWAs. There is a considerable period of time to run before the bulk of employees have to consider at all what their future industrial regulation should be. Moreover there is not put before your Honour any suggestion whatsoever that the union is incapable of asking its members for what their preferred course of action is.

PN646

Your Honour should not exercise the powers, if they are available, where there is a simple remedy available to the union to ask its members what they wished to do and to act accordingly. If your Honour gets to the stage of considering the question that has been posed, the position is, and I say with great respect your Honour, pretty hopeless because it is meaningless to ask employees in their present context the simple question of whether they want a certified agreement. It is impossible to give the question meaning in a way which would provide a meaningful response some long way down the track when employees have to make the choice. The question is not framed and it is not possible to frame the question to ask employees, the bulk, for example, whose AWAs expire next year, what the circumstances are and in what circumstances they would be making the choice. Circumstances may change in a radical fashion in all sorts of ways.

PN647

It is not being asked of employees whether they want an AWA on particular terms or what terms. It is not being asked whether they want a certified agreement on particular terms. A certified agreement, if it is to be made, of course only has to be underpinned for the no disadvantage test purposes by the award, not the AWA. So it is open to parties in the negotiation to make an agreement which departs from the terms presently contained in AWAs. Circumstances financially might change for both sides on the equation and it may be appropriate for the Commission in certifying the agreement to have regard only for the award.

PN648

None of these issues are capable of proper formulation. The Commission ought not, in my respectful submission, lend its authority to such a speculative venture. The idea that, as is suggested in paragraph 4.3 of the unions submissions in November of last year, that there should be some electioneering taking place in relation to the ballot and that each party puts a position paper, or some prospect, is a matter which is so far removed from the purposes of the Commission conciliating if the power is available under Part 6B, division 8. It should be rejected out of hand. In relation to your Honour's discretionary power assuming of course now that there is such a power, your Honour would be guided in my respectful submission by the express provision in the Act namely section 135 which has a very narrow application confined to members for a particular matter in relation to the industrial dispute not in relation to any form of industrial regulation.

PN649

Your Honour would have to be persuaded that there are very good reasons as to why the exceptional step should be taken to circumvent an exercise of power which has particular conditions attached to it in a situation such as this. So for all those reasons it is my respectful submission that your Honour should not issue any order of the kind sought.

PN650

There is perhaps one other thing that I should deal with although given your Honour's last remarks in the context of the tendering of the document it might be unnecessary for me to do so at this stage and I will take my guidance from your Honour and that is whether I need to address what your Honour foreshadowed perhaps is what I might call the conduct dispute that might be available.

PN651

THE SENIOR DEPUTY PRESIDENT: Yes. Oh no, look I am conscious of the concern of the union as to what they say is occurring by virtue of the delay and not knowing my final answer yet but by the same token I am also conscious of the fact that these are important issues and they are being raised here but they are to the best of my knowledge probably being raised for the first time before a member against the background of there being AWAs coming up for re-negotiation, there being in existence an award and there being in existence a desire on behalf of at least those who signed a petition and that evidence before me, that a collective agreement might be reached down the track.

PN652

Now, they are important issues, I concede readily that they will arise in other industries. I don't propose in those circumstances to deprive myself of the opportunity to reserve my decision and consider and I know we are going step by step here and it is going slowly but that is the way I am going. So, that's a very long-winded way of perhaps justifying what I am going to say. I am just going to deal with whether I can do what the union want me to do pursuant to my powers under 170NA.

PN653

MR DIXON: In relation to Commissioner Raffaelli?

PN654

THE SENIOR DEPUTY PRESIDENT: No, well, I should not say no. Whether under C23187 which is the number the Registry has given to the notice initiating a bargaining period in respect of which there has been a request to exercise my conciliation powers, those conciliation powers being those referred to in 1970NA whether I can do what the union has foreshadowed it wants me to do.

PN655

MR DIXON: Thank you, your Honour. Might I just say two very brief matters in relation to the issue generally. The submissions I have made about power would apply to any other - - -

PN656

THE SENIOR DEPUTY PRESIDENT: Yes, I think you say that it doesn't matter what the source of an industrial dispute is I should not exercise what really looks like a section 135 order in the guise of 111. Yes, now the only other thing I am concerned about is I wonder whether, on reflection, you have not said all you would want to in relation to discretionary issues referrable to whether the direction should issue under that matter. I know now you are going on to say that you would not want me to start re-visiting whether or not there is a conduct finding of dispute that could be the source and if I was going to do that you would want to have something to say about that.

PN657

MR DIXON: Yes, but the difficulty there is that there's been no dispute found, there's been no request for an agreement to be made in respect of that dispute and so no powers under section 170NA would be enlivened in relation to that dispute because no notice has been issued.

PN658

THE SENIOR DEPUTY PRESIDENT: Yes. I think I could say this, that I won't proceed to find a dispute by reference to the conduct matter that I foreshadowed in my recent decision and that is not a matter therefore that has got to the conciliation stage so it is not a matter in respect of which I could consider whether that is the source of exercising powers, is that - I think I am clear myself, are the two of you clear enough - - -

PN659

MR DIXON: That preserves our position.

PN660

THE SENIOR DEPUTY PRESIDENT: Yes, I think so. Mr Nolan? Anything I just said then that causes you any anxiety?

PN661

MR NOLAN: Not that I've twigged to anyway, your Honour.

PN662

THE SENIOR DEPUTY PRESIDENT: Well, if you have you are ahead of me. I think what I have said is clear enough amongst us all.

PN663

MR NOLAN: We have put the case frankly that we say you have these powers to conciliate in the context of the bargaining notice having been issued and so on.

PN664

Can I turn to this issue of statutory construction about which you have been addressed in some detail by Mr Dixon? Can I start off by giving to your Honour a copy of a decision for which I have to thank Mr Dixon for alerting me to because it was buried away in that reference to - can I hand something else up at the same time - it was buried away in that reference made in the course of Deputy President Duncan's consideration of the Dalrymple Bay matter.

PN665

This was a decision to which reference was made by Duncan DP when he talked about a ballot having been decided upon by her Honour the then president, President O'Connor and you will see the decision does not discuss in any detail at all the legal issues that were no doubt canvassed but it simply announced the decision that was made by her Honour. There don't appear to be more extensive reasons anywhere, I've done a search on the print number and can't find them and it is sufficient to simply point out that her Honour reaches a conclusion on the second page of the print that section 135 provides the Commission may order a secret ballot. She goes on to say:

PN666

Section 111(1)(T) is a general power which enables the Commission to give all such directions ...(reads)... relevant employer and the CFMEU - - -

PN667

and so on:

PN668

I am satisfied that the Commission has power ...(reads)... under section 135.

PN669

So the decision was made. There are no extensive reasons given why her Honour reached that conclusion but it is interesting to look at the array of legal counsel - even now his Honour Callinan J was there at the bar table, and Mr Crawshaw, Mr Plunkett and Mr Humphreys from Blakes in Queensland. So there was a formidable array of legal fire-power at the bar table and I would be very surprised if the issues weren't canvassed in some detail. I think she refers to having received submissions on the matter but, of course, we're left intrigued as to what the full reasons were that motivated her Honour to come to the conclusion; but it's useful, for our purposes, to see that a conclusion has been reached along those lines by no less a person than the former President of the Commission.

PN670

Now, when her Honour came to that conclusion she may have had in mind some of the sentiments expressed in the textbook on the subject, which I've also made an extract from, and I refer in this connection to the extract from Statutory Interpretation in Australia, Pierce and Geddes, the well-known text. Under the heading, "Expressio Unius", etc, there's a discussion of this particular principle.

PN671

It's very important to note, without reading it all, that the learned authors of the text say that this is a principle that should be applied with great circumspection and they raise alerts in the whole of the discussion of the way this principle is applied to the variety of caveats that relate to its application, or potential application in a variety of legal contexts. In particular, at the top of page 107, they talk about"

PN672

- the strong note of warning ...(reads)... Rylands Bros v Morgan -

PN673

that's a very old case that goes back to 1927; and, more recently, halfway down the page, they refer to the decision of the High Court in Hussein v Under-Secretary of the Department of Industrial Relations and Technology where the High Court said:

PN674

The maxim must always be applied with care ...(reads)... a dangerous master.

PN675

They go on to cite other decisions of the High Court that deal with the principle; and, more importantly, at the foot of page 107, they say:

PN676

An important rejection with wide-ranging ...(reads)... the approach -

PN677

What they refer to is to be found is Ex Parte 2HD. They said:

PN678

The High Court there refused to hold ...(reads)... that particular consideration.

PN679

So, in our submission, we say that that is the approach that ought to be taken to this endeavour to reconcile the different provisions in section 135 and that which, we say, is available to you under section 111.

PN680

Of course, the most conspicuous difference between the two is the fact that the union frankly, came to the view that it was preferable to canvass the views of all of the employees affected and not comply in that exercise for union members. So there is a first and obvious point of distinction and we would reject the contention that section 135 places the Commission in some kind of straight jacket that prevents it from exploring employee preferences or views in the other exercise of its powers and duties under the Act generally.

PN681

Of course, it's not a radical conclusion to advance when one considers the functions that the Commission has to perform, and the functions in particular that are assigned to it under various other provisions in the Act. In this connection it might be useful to consider that the operation of section 111AAA for example, just to take one example the Commission is asked to give primary consideration to the views of the employees referred to in subsection one. Those employees of course are employees whose employment is covered by a state employment agreement. They're not necessarily union members and consideration has to be given to their views.

PN682

If one were to adopt the strict straight jacket approach, if I can uncharitably characterise it as such, one would find an immediate collision between the provisions of section 1AAA2(a) and 135 because the objection would be raised that nothing in the shape of a ballot could be taken because so far as the Commission is empowered to conduct a ballot, that is something that is provided for by way of a code in section 135. So that some other method of the ascertainment of employees' views under section 111AAA2(a) would need to be considered.

PN683

Simply to advance that proposal in our submission is to call into question the approach to statutory construction that's been advanced by Mr Dixon because if it was open to the Commission to canvass the views of employees generally, it could hardly be said that a resort to a ballot as one means of canvassing employee's views should be precluded by the simple existence of section 135. So the answer to the question of statutory construction is one that's really alluded to in Saraswati's case and that is the contention that the context is all, if I can put it that way. Saraswati was careful to do a couple of things in my submission.

PN684

The first was that of course, it deals with the application of the criminal law to particular circumstances. Of course, in my submission, the court will always be very careful to take a very strict view of the way in which a crime might be created under a statute and that's to be contrasted with a general approach taken to the task of statutory construction. But that aside, the expression of sentiment of McHugh J in the case cannot be in our submission, stretched as far as to place a bar before the submissions that we make about the way the Commission can exercise it's powers in this case because when one attends to McHugh J's reasons in the Saraswati case, one has regard not just to the statement of principle to which you have been referred but to the context in which the statement of principle is made.

PN685

McHugh is very careful in the consideration of the way the legislation is intended to operate, in his consideration of it, to take into account the legislation, its history and the relevant circumstances of it's development, including, as I read the reasons, some of the history of the legislation. He was very careful to consider the context in which the legislative provision was to be considered and so it can't be suggested that this lays down an intractable principle because for every example one can cite of the expressio unius approach prevailing. Of course there was a counter example, many of which are set out in the passage in Pearce v Geddes to which I have already made reference.

PN686

So one needs to start not from the premise of any preconception about hard and fixed rules of statutory construction but from the statutory context which gives rise to the particular way in which the power is to be applied and operated. I haven't unfortunately had an opportunity to make reference in any detail to the history of this ballot provision but could I just refer you to pages 210 to 212 of the old Mills and Sole and can I suggest that when one considers the way this particular section of its predecessors, this section is developed historically, the old section 45 of the old Conciliation and Arbitration Act and its predecessors. It was directed in the main to allow the old court of conciliation to effectively go behind what the union leadership had claimed as the real view of its members if there was an industrial dispute and to ascertain for itself what the members who were involved with the dispute thought about proposal to strike or not to strike. That's really its genesis. It's very much a product of times that are far apart from the circumstances and the approach taken in the 1996 Act in our submission.

PN687

It needs to be viewed squarely in that historical light and viewed in that light, of course, having regard to what Pearce v Geddes say about context, one can credibly suggest that issues of context and construction and comparison with other provisions in the Act ought to prevail over any suggestion that section 135 was confined and structured code that places restrictions on the Commission. So our contention is that the approach the statutory construction which we would urge on the Commission would permit it to make findings that rejected the contention that section 135 provided so it was some sort of code that precluded the resort to these flexible procedures that we have urged upon the Commission in the exercise of conciliation.

PN688

Of course, I have referred you to Bain's case which talks about the flexible procedures that were available to the Commission to deal with the dispute in conciliation and as I think I said a little while ago, it would be surprising if the Commission was not able to take some reading of employees' views in the context of any dispute affecting employees. Not just union members but affecting the future livelihood of industrial regulation of employees at a particular work place. It would be a very surprising suggestion to say that that option was closed to the Commission and it's just a small step if one accepts that as being something that the Commission is able to do, that is to plumb the employee opinion, it is but a small step to then look at the means by which that order be undertaken.

PN689

It makes no sense at all to say that the Commission could, in the exercise of its conciliation powers, perhaps summon all the employees to come in and sit in the witness box and give evidence about their concerns and pre-occupations and preferences, that the Commission could accept a petition the way that Deputy President Duncan accepted a petition as a definitive statement of employee view that the Commission could perhaps write letters to people and invite responses, that the Commission could take a whole range of approaches to ascertain what employees thought about a particular issue but when it came to doing something that would provide a definite expression of view, such as take an employee ballot, that the mere existence of section 135 - confined as it is to union members - prevented the Commission from using such a device to canvass the views of employees generally.

PN690

That, in my submission, makes no sense at all. If the power can be used to achieve the objective by similar means there's no reason, certainly none springs from the tenets of statutory construction, that would suggest that it was precluded from conducting something in the nature of a ballot or analogous to a ballot.

PN691

We sat that the statutory construction point yields when one considers the countervailing considerations that deal with the rules of statutory construction, we say that once that goes by the board one comes back to the merits of the issue, as it were. We submit that the leaps and bounds of the bargaining framework are not restricted to or confined only by the taking of protected action.

PN692

The parties are plainly not limited to circumstances where protected action is the only recourse for them but the existence of the bargaining provisions in the Act and the conciliation powers specifically associated with bargaining would suggest that a range of approaches short of actually taking protected action are not only available but indeed, are to be preferred. That is underscored by the fact that the Commission has not dealt out of any role at all in the bargaining stream but rather, empowered to exercise all of its conciliation functions in assisting parties in the context of industrial bargaining.

PN693

So much, of course, is confirmed by the full bench decision in Telstra. So, it's to short change the range of approaches that are available to parties through the Commission in the bargaining stream to say that they are precluded or they are restricted only to availing themselves of the protections under the bargaining stream. That would give section 170NA a very restricted work to do, in our submission and there's nothing on its fact that would indicate that those restrictions should be read into it.

PN694

It is suggested that there is some sort of futility in the union's proposition, it seems to be suggested that simply because it's all too hard it's something that shouldn't be canvassed. Well, if it's an exercise in futility, one wonders about the vigour with which the proposition has been opposed. The fact of the matter is, as I've already said to you, the Act itself talks about choice, it talks about employee preference, it establishes a regime where bargaining is available at the seat of the union or the seat of a collective group of employees and where such a bargaining process is initiated, the Commission's powers, full powers of conciliation are able to called in aid.

PN695

In those circumstances, the canvassing of employee opinion in the context of marking out a path for conciliation is not at all an exercise in futility but in our submission, a foundation to establishing the parameters of the way forward if there is an expression, an authority of expression of employee view, that must carry weight in the bargain process. You've heard how it was suggested to the union by the company that there was no real credibility associated with the union's claim that employees wanted a collected agreement, that suggestion was disparaged.

PN696

However, the preliminary view of those employees, if one looks to the petition, suggests otherwise. To ascertain a more thoroughgoing authoritative statement would be, in our submission, of great assistance in staking out the respective positions, allowing employees to have their say and requiring the company among other things, to in effect, say to its work force, well, we've had this authoritative statement of your view, this is our response to it.

PN697

That's a vital answer, in our submission, to an important question and an important question that arises in the context of the Acts operation, the conciliation processes under the Act and the objects of the Act which are supposed to establish a framework that allows for choice at the work place. None of that detracts, of course, from what was said by the Full Court in the Burnie Ports case. That case was concerned not with the operation of the Commission's powers in the context of bargaining but with specific offences that are created where employees are victimised in certain circumstances; and, indeed, in that section, not just employees.

PN698

THE SENIOR DEPUTY PRESIDENT: I think the importance of that case is that it wasn't when the employment relationship was on foot, as at the offer time.

PN699

MR NOLAN: Yes, they were prospective employees and, of course, the Court says that in certain circumstances, if the award was differently framed, even those employees would be clothed in the protections. The difference here is that where not talking about those victimisation provisions; we're not talking about prospective employees; we're certainly talking about future employees so far as the union's interest in getting a collective agreement over time but not in the sense that the issue arises under the anti-victimisation provisions. So we say that the Burnie Ports decisions goes as far as it goes but it has no relevance to this particular dispute which really invokes quite separate machinery under the Workplace Relations Act, all to do with the bargaining stream.

PN700

So, your Honour, we've really, I think, said all that we can say about the issues and I hope that those submissions have been of assistance regarding the statutory construction point. Unless there's something else that I can assist your Honour with, those are our submissions in response.

PN701

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr O'Sullivan, do you want to make any submission on this matter? There is, of course, an exhibit in that concerns either your members or those eligible to be members but, whatever I do, I will accept that that which is reflected in it is accurate but just for the purposes of this issue now before me; so you don't need to be concerned that you might not be able to re-visit that on another occasion in respect of another argument.

PN702

MR O'SULLIVAN: Well, on the face of the exhibit SercoI, your Honour, that pretty much reflects the instructions I've received from my branch. At this point in time the CEPU does not seek to make any specific submissions other than to support the submissions put up by the RTBU. If the Commission pleases.

PN703

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I don't know whether, strictly speaking, it's a matter where you get a right of reply, Mr Dixon. It's been such an unusual matter procedurally I don't know who is the applicant any more and who is the respondent.

PN704

MR DIXON: Your Honour might just wish to approach it that, if your Honour were to allow me, I have two very short points to make, just because they might be of some assistance, if I can make them very shortly.

PN705

THE SENIOR DEPUTY PRESIDENT: Well, if you think they're going to be of assistance you can make them, otherwise not.

PN706

MR DIXON: There is a distinction in section 135. That is, different language is used in relation to ballots of employees and ballot of members and I didn't make that difference sufficiently clearly beforehand.

PN707

The other point I would make, your Honour, and I think it is of assistance - that's a view and I hope I'm not overstepping the mark, giving that - is that if one listens to the submissions put by the union one wonders why section 135 is necessary at all. If 111(1) was as wide as is suggested then one would not need section 135. Section 135 obviously has a much more specific role, and exclusionary role, to play. if your Honour pleases.

PN708

THE SENIOR DEPUTY PRESIDENT: Yes. I propose to reserve my decision and I'll hand it down as soon as possible. The Commission now adjourns.

ADJOURNED INDEFINITELY [3:05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SERCO 1 SCHEDULE 1, CEPU AND RTBU PN645