C2001/1820, Transcript of Proceedings [2001] AIRCTrans 2446 (21 September 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/1820

COMMONWEALTH BANK OF AUSTRALIA
EMPLOYEES AWARD 1999

Application pursuant to section 113 of the
Act by Commonwealth Bank of Australia
to vary re insertion of new clause 15.6 into
the Award.

SYDNEY

10.38, MONDAY, 3 SEPTEMBER 2001

Continued from 15.6.01

Adjourned sine die

PN418

SENIOR DEPUTY PRESIDENT: Are there any variations to appearances?

PN419

MR KENZIE: Yes, if it please the Commission, I now appear in lieu of Mr Haylen for the union.

PN420

SENIOR DEPUTY PRESIDENT: Thank you, Mr Kenzie.

PN421

SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas?

PN422

MR DOUGLAS: Your Honour, I noticed the matter is listed for mention only this morning. Your Honour, will remember on 23 August we wrote to you referring to the liberty to apply reservation in your Honour's decision, and indicated that we requested that the matter be relisted for the purpose of exercising this liberty to apply. You are no doubt well aware of the fate of the appeal that was taken and the events that occurred last week. Today we do not formally ask the Commission to change it's adjournment decision. Therefore in that sense I guess we are not asking the Commission on an application by us to change the position on the basis of the liberty to apply reservation.

PN423

What I want to do, your Honour, is to briefly bring you up to date with the circumstances as they exist in relation to the Federal Court proceedings and simply leave it to the Commission to determine whether or not, on it's own motion, it wants to review the position and maybe change it or leave it for another look at the situation sometime in the near future. Could I provide you with a copy of relevant extracts, transcripts of Federal Court proceedings? What has happened, your Honour, is that the matter that was listed, you will remember for five days beginning on 9 July, and you will also remember that Mr Haylen's submissions were put to you in support of the adjournment, on the basis that the Federal Court proceedings were to be heard during that five day period.

PN424

Therefore, as he said, and I think your Honour, took this approach in the decision, that he was seeking really an adjournment for a short period, and your Honour concluded that the adjournment was merely a procedural ruling given by your Honour. The matter in fact came on before Wilcox J on 9 July, but it was not heard and these transcript extracts will show precisely what happened. Can I firstly go to the first page where you see Mr Haylen, and this is 9 July, I think it's the top of the page is dated 9 July 2001?

PN425

SENIOR DEPUTY PRESIDENT: Yes.

PN426

MR DOUGLAS: This is before Wilcox J and Mr Haylen says:

PN427

Your Honour, I have had a chance to talk with both my learned friends ...(reads)... it for hearing until he has brought down his judgment in the Macey case"

PN428

and that's the Secondee case, remember Mr Haylen referred to two cases.

PN429

SENIOR DEPUTY PRESIDENT: Two cases.

PN430

MR DOUGLAS: One, the main one, which I call the main one, which resulted in the application coming forward, the Secondee case which had no direct involvement as far as the application was concerned. Then, Mr Haylen went on:

PN431

There is a third issue and this is just trying to keep the matters from causing difficulty ...(reads)... That will be heard in due course, and whatever happens with that will happen.

PN432

Then I go down to his Honour, at the bottom of that page, where is says, "I was able to speak to Moore J on the phone". Down to the second last line

PN433

His attitude remains that it's for me to decide what course I take, but he did express the views that were rather similar to my own, that it would be unfortunate if two different views were expressed about the construction of the clause.

PN434

SENIOR DEPUTY PRESIDENT: That's two views within the Federal Court?

PN435

MR DOUGLAS: Yes, two views, one in the Macey case and a different view in the other case, your Honour.

PN436

SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN437

MR DOUGLAS: Then in the middle of the next paragraph, referring to Moore J his Honour said he's worried, as indeed I am that:

PN438

There is scope for a different subjudicial opinion as to which is not a tragedy, but it's unfortunate if it works out like that. I think the better view is that it should go over to him.

PN439

Then three lines into the next paragraph:

PN440

As far as the Court is concerned, I gather then, that all I need to do is to transfer the matter to Moore J and you have got an inter-parties arrangement about what is to happen before the Commission.

PN441

Then his Honour, said in the last paragraph, "by consent I transfer the matter to the list of Moore J".

PN442

That occurred and I think it is fair to say, your Honour, certainly it's fair from the point of the CBA that if an adverse decision comes down in the Macey matter then that certainly will be appealed, that's as far as the court proceedings are concerned. One would presume that this issue would take a similar position. The next part of the transcript is the extract of proceedings before Moore J on 1 August. Your Honour will notice that Mr Fernon appeared for - - -

PN443

SENIOR DEPUTY PRESIDENT: I will when I get it, yes.

PN444

MR DOUGLAS: I'm sorry, I'll hand that up.

PN445

SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Douglas.

PN446

MR DOUGLAS: Going to the first page of the transcript, you will see that Mr Fernon appeared for the bank. His Honour referred to the fact that he had two matters, rather than one before him now. Then Mr Reitano said:

PN447

When the matter came before Wilcox J the agreement the parties arrived ...(reads)... resources to await the judgment in Macey rather than press on with this matter.

PN448

His Honour then said in principle:

PN449

If that is what the parties have agreed, I am happy to give effect to that agreement. ...(reads)... if that does eventuate just awaits the outcome of any appeal.

PN450

Mr Reitano, said, "Yes, your Honour, I think that's right".

PN451

So in essence at that point, your Honour, what I think is being said to the court and being accepted by the union and the bank was that if the Macey matter is appealed by one side or the other, then the other matter just waits and waits and waits. So however one looks at the situation today, it's clear that it seems fairly clear, at least, or arguably clear that the second matter, the matter that just now entered Moore J list is some months away from hearing.

PN452

His Honour at the bottom of the page said:

PN453

I might raise one other matter too, I have noticed, and it was inadvertently almost in, I think, it was with Workforce that there had been an application to the Commission, I think the bank, to vary the award.

PN454

That's the application before your Honour.

PN455

His Honour at the top the page:

PN456

Ordinarily I would be utterly indifferent to a proceedings such as that, but I ...(reads)... If one is talking as you did two or three minutes ago about the use of resources. It doesn't appear to me to be an optimal use of resources.

PN457

Mr Reitano said:

PN458

I wasn't involved in the Commission proceedings for various reasons, but the outcome of those at present I suppose, is that Senior Deputy President Duncan heard argument on whether he would proceed to the term of the application or not.

PN459

Then his Honour asked a question as to who made the application. Mr Reitano:

PN460

The bank's application; The Deputy President determined that he would await ...(reads)... he would adjourn the proceedings until the outcome of the Adams proceedings.

PN461

In a sense, your Honour, that might be stretching the scope of your Honour's determination because you clearly made a decision based on the submissions that were put to you by Mr Haylen, and that was that the adjournment would be for a short period.

PN462

Then his Honour said:

PN463

Is the application in the Commission and application of varying the award? Mr Reitano; yes.

PN464

His Honour:

PN465

Well, perhaps ask Mr Fernon about it, if it is his client's application. What is the relationship between that application and these proceedings? Not only this particular matter, that is 1068, but the other matter that I have reserved on. That's the Macey matter.

PN466

Mr Fernon, at the top of the page:

PN467

There is no relationship between the proceedings and the Commission and the Macey matter ...(reads)... nothing flows from the fact that there are proceedings from the Commission on the one hand, and then the court on the other.

PN468

Then going past the next paragraph to his Honour again, and this your Honour may well consider to be something that might cause your Honour to review the position.

PN469

His Honour said:

PN470

I must say I'm sure I'm only stating the obvious, that it is not an entirely satisfactory s...(reads)... the purposes of the application, well that may be an avenue that is more productive.

PN471

So in a sense his Honour, is really in one way saying well, it might be more productive for the Commission proceedings to go ahead because that might show mainly that the court doesn't have to do anything. One of the issues that does arise your Honour of course, is that under section 113(2), if the Commission finds that there is an ambiguity or uncertainty as to the award provision - - -

PN472

MR KENZIE: Your Honour, I object to this. I think what's happening in these proceedings is this, it was the liberty to apply that was being exercised. Our friend said that he didn't propose to exercise the liberty to apply. But he was using the application for the purpose of updating your Honour for the purposes of - I'm not sure what my friend is suggesting, but perhaps giving your Honour an opportunity to consider what had happened. What I apprehend my friend is now doing is entering into the question of some submissions about the matter but we have had no notice, of course, that any of this was going to happen today, your Honour. I haven't objected to my friend updating, your Honour, it is perfectly appropriate that that happened. But I apprehend that my friend is now moving beyond that to some form of submission about some matter of which we have had no notice, and I object.

PN473

MR DOUGLAS: Right, I won't say more as to the obligation that is on the Commission if an ambiguity or uncertainty is found. It is clearly stated in the Act in any event. Your Honour, could I also provide you with a copy of an application that was filed this morning by the bank, and I simply provide that as information? No doubt in due course it will be called on for directions here. It is an application by the bank to have the award varied to deal with future outsourcing currencies.

PN474

Your Honour, there is one other matter that I would like to refer to. I'm not sure precisely how I would do this. What I would wish to deal with briefly arises from your Honour's decision and I don't wish to go to it to suggest in any way, shape or form that I'm doing so in an effort to have your Honour in any way, reverse the adjourned decision. There are a couple of factual matters in your Honour's decision, that I believe may be incorrect. Probably the fault lies with me in not putting the position clearly enough during the adjournment application proceedings. I am quite happy to provide something in writing in relation to the matter, or to deal with it now. Could I just indicate briefly what it deals with, your Honour?

PN475

Does your Honour have the adjournment decision there? There are three things, and they all relate to employment nationally. In paragraph 19, your Honour, you said amongst other things, that it was never the case in ENI that the Federal Court proceedings could result in the Commission proceedings being unnecessary. Then in the first dot point in paragraph 20, you said again in relation to ENI, equivalent assumption cannot be made in this matter. Those two issues are in a sense brought together in the last dot point in relation to the approbating and reprobating point that Mr Haylen put. Your Honour, the conclusion that you reached, I've got to say with respect in relation to ENI, is not strictly correct in this sense that ENI - - -

PN476

MR KENZIE: I object to this, your Honour. Is this an appeals?

PN477

MR DOUGLAS: No, it's not.

PN478

MR KENZIE: Right. The situation is that this matter has been the subject of an appeal in which as I apprehend what my friend is now seeking to do, attempts were made to go to issues such as this. But that appeal was dismissed. There has been no other appeal and now on any view what our friend is now seeking to invite your Honour to do is to revisit that decision on the basis that it is that it is incorrect and, in our respectful submission, that is not an appropriate matter to be raised under liberty to reply. As I understand it, my friend is not asking for your Honour to do anything.

PN479

SENIOR DEPUTY PRESIDENT: He is not formally asking that I do anything, he is putting certain things before me and inviting me to consider the situation.

PN480

MR KENZIE: Including the error as it is now put in your Honour's decision in circumstances where our friend has availed himself very recently of an opportunity to appeal from the decision and the appeal has been dealt with. It is not appropriate for this sort of matter to be raised on the basis of liberty to apply. Liberty to apply is something that is appropriate in relation to incidental matters that arise in relation to the decision. Your Honour has granted an adjournment for reasons that have been articulated in the Commission's judgment.

PN481

One of those reasons had to do with what had been put to your Honour by senior counsel on both sides in relation to this matter as to the position in relation to employment national. The decision has been since made the subject of an appeal. On the appeal - the appeal was effectively confined on its base to jurisdictional matters so that there was an election not to go forward with matters of error and on that basis the Full Bench dealt with the matter and where no effective submissions were put forward to the Full Bench on the jurisdictional matter, the appeal was dismissed.

PN482

Now what is sought to be done and in circumstances where our friend is not asking from the point of view of the CBA the Commission to do anything, is that it is being suggested to your Honour that there is an error but the CBA isn't asking your Honour to do anything about it. But by some backdoor means errors are being identified for the Commission so it can go off and do what it might think appropriate in relation to them. It is not an appropriate mechanism, in our respectful submission, your Honour.

PN483

MR DOUGLAS: Your Honour, I am not seeking to deal with this issue in any way to cause your Honour to change your adjournment decision. I simply want to deal with these issues for the record. Maybe if I could handle it this way, your Honour. There are now four applications before the Commission, applications under section 113(2). The one that stands adjourned, the Colonial matter, the Colonial franchise matter and the one that was filed this morning. Now in each of those four cases the FSU has a direct involvement. In each of those four cases the CBA has an involvement either by ownership or directly.

PN484

One of the matters is standing adjourned and looks like it is going to be in that position for some considerable period of time. It did never arise, your Honour, in the proceedings, the adjournment proceedings, as to whether or not in arguing the CBAs case it would be suggested to the Commission that the Commission for the purposes of the argument, for the purposes of dealing with section 113(2) application the Commission would need to presume that the FSU is right as to its view of the clause, in other words the Commission would need to assume that the FSU is right as to the way in which the clause is to be interpreted. Otherwise it would be virtually impossible for the application to be dealt with in a substantive way.

PN485

I just want to advise the Commission in the hearing of the four matters, whenever they occur we will be inviting the Commission to make that assumption as one leg of the argument that will be put in support of the applications. In the alternative, we will be saying to the Commission you should nevertheless find that there is an ambiguity or uncertainty as to the application of the provision and because of that the particular variation should occur.

PN486

In a sense we have no control now over whether or not this application, the adjourned application, comes before the Commission to be heard with or at a similar time to, the other applications. I simply say to the Commission that the FSU could well find itself at a great disadvantage ultimately if this matter stands adjourned and the other three matters are dealt with in accordance with the Act. Having said that, your Honour, I will, at an appropriate time in relation to the matter that has been filed today, deal with conclusions that your Honour has reached in relation to the NA matter in the adjournment decision and I will deal with those at the appropriate time, if the Commission pleases.

PN487

SENIOR DEPUTY PRESIDENT: Thank you, Mr Douglas. Mr Kenzie?

PN488

MR KENZIE: I have little to say in the circumstances that exist but I would make two or three points. Firstly, it will be apparent to the Commission from a perusal of part of the transcript before Wilcox J that our friend has chosen to place before the Commission just why contrary to the suggestion in the letter that was written to the Commission shortly before the appeal, the CBA, that is suggesting that liberty to apply would be exercised because of changed circumstances, just why that liberty to apply is not being exercised in that way.

PN489

Although your Honour has not been favoured with the whole of the transcript before Wilcox J on that day but obviously furnished with the business end, if I can put it that way, several things are clear. Firstly the reason that our friend has not exercised or sought to exercise the liberty to apply and ask the Commission to vary its decision on the basis of what happened before Wilcox J, is this, that what happened on that day was that Wilcox J identified for the parties - I know your Honour hasn't got the whole of the transcript - but Wilcox J identified for the parties that there had been communication between himself and Moore J and indicated his disquiet about two members of the Federal Court dealing with potentially the same question, namely the interpretation of the redundancy provisions.

PN490

There was extensive discussion about the matter, the CBA then being represented by Mr Ellicott of Queens Counsel, and his Honour was expressing that difficulty and inviting submissions from the parties. The FSU urged his Honour to continue with the proceeding because it was always the FSUs intention and aim to have the matter dealt with expeditiously. Ultimately, in the part of the transcript that your Honour hasn't been shown, his Honour without coming to a view, invited the parties to go and discuss the matter and what followed was the part of the transcript that your Honour was shown.

PN491

SENIOR DEPUTY PRESIDENT: This followed a discussion between the parties?

PN492

MR KENZIE: It did. What happened, on the previous page, his Honour, having said the matter had been talked about in a fairly large way, there were extensive submissions made, his Honour still had some difficulties and invited the parties to consider the matter and to come back to the - he invited the FSU to consider what had been put and to come back to the Federal Court with an indication of what evidence would be forthcoming in the case if it went on, and he invited Mr Haylen to have a look at what evidence you really do need to call if the matter proceeds. The matter then was adjourned and what followed was the extract from the transcript that your Honour has, and your Honour will see that what was clearly put before the Court on that occasion, was that the FSU - having considered what had been put - and having had the benefit of discussions with Mr Ellicott on behalf of the CBA, or at least the CBA, put what was on the transcript, namely that there was a joint position in relation to this matter. Conscious, of course, because there had been discussions about it of the Commission proceedings and it was in those circumstances that those passages which Mr Douglas quite properly did refer the Commission to, came into being as a joint position. Conscious of the Commission proceedings, subject only to the appeal which went forward before the Full Bench last week and was dismissed. So, that is the background to liberty to apply not having been exercised in the way that it was indicated in the letter, your Honour.

PN493

Now, the second thing I should say is that your Honour was also taken to the extract of the proceedings before Moore J, where

PN494

Mr Reitano and Mr Fernon were asking some questions about the Commission proceedings and Mr Douglas suggests that what flowed from that discussion appears to be the conclusion that the Macey proceeding would proceed by way of appeal before the second proceeding.

PN495

Now, your Honour, I can tell your Honour, on behalf of the FSU, that that position has not been put or determined, and certainly, as between the parties, there is no suggestion that that is the position. All that has happened is that Wilcox J has expressed the difficulty, the parties have gone away and attempted to deal with it, and they have done so on the basis that your Honour has seen partly in the transcript on it, although not completely. There are some other references to the Commission proceedings in other parts of the transcript that I am not in a position obviously to hand to your Honour in full today.

PN496

Your Honour, that leads to the third matter, and that is this, that of course we came to the Commission this morning, having been told that liberty to apply was being sought to be exercised, but without being told what the basis was. It was our expectation when we arrived at the Commission this morning, that if, as might be suspected, some use was going to be made of the developments on 9 July, we would then be called upon to make available to your Honour the totality of the transcript and to put more fulsomely, some of the matters that I have been dealing with on my feet today, but that didn't eventuate, of course, and as we now understand it, what has been put to your Honour is that the Commission might want to perhaps consider some of the updated matters, but not on the basis of application by the CBA, but in the circumstances that have been revealed.

PN497

Your Honour, all I can put in relation to that, is that if the Commission is notwithstanding what happened before Wilcox J on 9 July is somehow of the view that the matter ought to be given some further attention then that would be something about which we would be entitled to be properly heard, your Honour. But in our respectful submission, nothing that has been put to the Commission today would give rise to that - even that first stage. There is a considered decision. What your Honour now knows, is that the parties have, in circumstances where that decision has been given, have told the Federal Court of it, and that that decision has played a role in relation to what has happened in the Federal Court. In other words, had there not been a joint position as to this, the your Honour, the FSUs position would have been that it wanted the matter to proceed in the Federal Court.

PN498

As it happened, it announced a joint position with the CBA which included the position that the subject of the appeal, the matter would be adjourned and that was done in circumstances readily revealed by the transcript, although I have had to tell your Honour about the first part. There were extension submissions about it, your Honour. So, your Honour, in our respectful submission, there wouldn't be, if your Honour were properly and fully informed of the facts, a basis for revisiting the considered decision in any event. If your Honour was of a different view, then we would seek to be heard in relation to the matter.

PN499

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas?

PN500

MR DOUGLAS: I will just point out your Honour, on the first page of the transcript of the proceedings before Moore J, in the middle, where his Honour addressing Mr Reitano for the FSU said - well I'll read the whole paragraph:

PN501

In principle, if that's what the parties have agreed to I am happy to give ...(reads)... yes, your Honour.

PN502

So clearly, in my submission, his Honour was told by the FSU that the Adams matters would wait in the list until any appeal in the Macey matter had been decided. Thank you, your Honour.

PN503

SENIOR DEPUTY PRESIDENT: I am not moved to move of my own motion in the matter this morning. I note the report that has been given. I note that another application has been filed, which will be dealt with in the usual manner by the Commission. If it should come to my lot to be allocated that matter, it will be listed in due course and the parties will have an opportunity to speak to it on that occasion. I adjourn this matter indefinitely.

ADJOURNED INDEFINITELY [11.30am]