C2416/700, Transcript of Proceedings [2001] AIRCTrans 3117 (15 November 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C No 24167 of 2000

AMWU

and

A & A CONTRACT STAFF AND OTHERS

Notification pursuant to Section 99 of the Act
of a dispute re wages and conditions

SYDNEY

10.09 AM, THURSDAY, 1 NOVEMBER 2001

Continued from 31.10.01

PN1623

THE SENIOR DEPUTY PRESIDENT: Mr Gallagher?

PN1624

MR GALLAGHER: Thank you, your Honour. At the conclusion of proceedings yesterday I was referring to the ASU case. That's reported at 69 IR 247. I was about to end my reference to that case by reference to principle 6 as it was set out there at page 258. Can I just read the paragraph there to make my submission clear, and I think my friend actually took your Honour to this. That says, and I quote:

PN1625

The Commission has drawn a distinction between non-compliance with the rules of an organisation in the making of a decision to serve a letter of demand and log of claims and non-compliance in the execution -

PN1626

etcetera etcetera. Now, can I make it clear that we are not complaining here as to the second aspect which is set out in that principle? We rely from start to finish in terms of our submission about this aspect that the log of claims and letter of demand were not relevantly authorised in accordance with the union rules. I don't refer to the ASU case any further. The other case in my list of authorities concerning authorisation was print M6839. That's a decision of Deputy President Duncan. Perhaps if I could take the Commission briefly to that so that again my submission can be made clear to the Commission. I don't take the Commission to any great slabs of the decision, but can I go over to page 8 of that decision? It's the paragraph commencing:

PN1627

None of the decisions which I have considered deals with a situation -

PN1628

and then down to the end of that paragraph:

PN1629

an absolute transfer of discretion.

PN1630

I bring that paragraph to your Honour's attention. Now, in the circumstances here we say there was a direction to or a delegation of power to a body not known to the rules of the union. That is to say, the National Research Centre. One will not find a reference to that body or that entity within the rules of the union. Then over on page 9 there is a reference at the top of the page to a case, it's print J6237, which was a decision by his Honour Deputy President Reardon concerning the Meat and Allied Trades Federation and an application by that body, that is, an employer body, for a bans clause.

PN1631

Now, I just bring to the Commission's attention without quoting it the extract there from the decision of Deputy President Reardon to show that the way in which his Honour approached the union rules issue in that case. Then we find the conclusion of Deputy President Duncan at the bottom of the page and going over to page 10. That says, and I quote:

PN1632

For these reasons I find that the central executive of the UMA purported to delegate its power to initiate industrial disputes on behalf of the CFMEU and that it had in fact -

PN1633

and I just pause there. My print says "now" and I must say I actually printed this off the Internet. I think it fairly obvious that that word "now" should be "no":

PN1634

no power to do so.

PN1635

That's the way I would seek to read it, sense is given to it in that way:

PN1636

I further find that no such power can be implied. That being so, I find that the service of a log of claims was not validly authorised -

PN1637

etcetera etcetera. It goes over at page 10. Now, again in terms of the submission we make here, we say that there was no valid resolution in the first place in that there was this direction to a non-existent body to do something and there was never a resolution authorising anybody else to do anything. Now, if the Commission pleases, the next authority that I refer to in the issues concerning authorisation is the Arndale case. That's reported at 82 IR 30 and the discussion concerning authorisation of the log of claims is to be found on page 31 and over to page 32. Now, I simply direct the Commission's attention to that discussion, I don't take up the Commission's time by quoting from it.

PN1638

There are some comments in the decision about onus of proof over at pages 47 and 48. They go to other matters which were relevant to the case. I don't take up the Commission's time with me now, but I direct the Commission's attention to them. Now, what I intend to do, your Honour, is to go as quickly as I can through the cases - I'm trying to do so in a fairly coherent way - and then to go back to evidence so that the Commission will understand the principles which I seek to invoke on behalf of my client. In the list of authorities I next go to the issue of genuineness. The first case that I wish to take the Commission to is the SPSF case. That's at [1993] HCA 30; 178 CLR 249, if I could do that now.

PN1639

The Commission will obviously be familiar with that case. It is a case which has often been quoted in the Commission and will no doubt continue to be often quoted. So, I don't go to the facts and background of it, but rather, I direct the Commission's attention to particular passages in the judgment upon which we rely in this matter. If I could take the Commission to page 266 of the judgment. That's the joint judgment of Mason CJ, Deane J and Gaudron J. That's where it commences. The relevant analysis from our point of view is at page 268. It's the paragraph commencing:

PN1640

Given the doctrine of ambit -

PN1641

and what I want to highlight commences about halfway down that page:

PN1642

A demand as to wages or conditions of employees made by an organisation of employees and authorised by its rules and in accordance with its ...(reads)... not constitute a dispute.

PN1643

Then the Act is quoted:

PN1644

The question of whether a claim is properly described as fanciful is one that can only be answered in the light of general industrial standards and general patterns of industrial regulation.

PN1645

Could I pause there? What the High Court does in these matters, as your Honour knows, is that when an application comes up for prohibition, for example, the onus is on the applicant, the prosecutor, for prohibition. In seeking to discharge that onus, a prosecutor is always faced with the situation that the High Court gives due weight and due deference, properly so, to the experience of members of this Commission in knowing what are general industrial standards and general patterns of industrial regulation.

PN1646

That's fairly trite, but I only draw the Commission's attention to it because I don't seek to make any submission as to what are general industrial standards and general patterns of industrial regulation because we can, like the High Court, in a sense, rely on the fact that the Commission, because of the statutory duties and responsibilities it has, is well aware of those matters. It is relevantly expert in them. Carrying on, the paragraph commencing:

PN1647

Notwithstanding that the Commission found there is a dispute arising out of a log of claims involving the SPSF matters, there are features which indicate that its demand, if read according to its terms, is in truth fanciful.

PN1648

Then there's an analysis of those matters. There's a reference, for example, to established wage fixing principles, because the wage fixing principles are still in existence. Different now from what they were in 1992/93 when this decision was made, but nevertheless, they're there at the present time. Then the paragraph:

PN1649

Given that the matter has been pursued this far, presumably at considerable expense, it is reasonable to assume that SPSF is pursuing some more realistic claim than the one that emerges from a strict reading of its demand.

PN1650

Now, I seek to highlight that paragraph down to the end of it, but could I go back to the words:

PN1651

It is reasonable to assume that SPSF is pursuing some more realistic claim than the one that emerges from a strict reading of its demand.

PN1652

Now, when we look at the log of claims, we see that what is demanded is, in a sense, demanded now. There have been some difficulties in that approach, and I'll come to later judgments which refer to things being claimed to be pursued within the foreseeable future. Here, however, we have usefully the evidence of Mr Oliver, who confirms that the matters in the claim are being pursued now. So, they're not:

PN1653

pursuing some more realistic claim than the one that emerges from a strict reading of its demand -

PN1654

What they're doing on the evidence here is pursuing the claims now. Then there's the next paragraph:

PN1655

There are two inter-related matters that serve to indicate -

PN1656

down to the end of that paragraph. I don't quote it to save time now but I seek to rely on that paragraph. That's down to, on page 270, the words:

PN1657

of those employees.

PN1658

Then in the next paragraph:

PN1659

The Commission has only those powers.

PN1660

What I wish to highlight is a passage in the middle of that paragraph:

PN1661

Thus a claim that the Commission should have or should exercise general regulatory power, whether made in terms which predicate an improvement, a reduction ...(reads)... section 4(1) in the Act.

PN1662

I end the quote there for the purposes of highlighting that passage. Then the next paragraph:

PN1663

The second matter that indicates that a bare claim -

PN1664

We seek to rely on that particular paragraph. Then the next paragraph:

PN1665

We would read the log of claims as involving a claim for increased wages and allowances as determined by the Commission. However, and as already indicated ...(reads)... the relief which they claim.

PN1666

I end the quote there. Now, if the Commission pleases, having regard to the terms of the log itself and to the evidence which fell from Mr Oliver, we would submit that this claim in terms of genuineness can be characterised as per the judgment that I'm now quoting from. We would seek to characterise it in that way and therefore it would fail. Then there is the judgment of Brennan J at page 272. We simply draw attention to the first paragraph in his Honour's judgment where he agrees with the judgment just referred to. Then could I take your Honour over to the judgment of Toohey J at page 290? I seek to refer to the paragraph right at the bottom of page 290 where it says, and I quote:

PN1667

It is no answer to the contention that an industrial dispute exists merely to show that the demands made in a log of claims have little prospect of success ...(reads)... determined by the Commission.

PN1668

Could I pause there? Then I come to the part that we do, with respect, rely on:

PN1669

But a log may be so far fetched, so lacking in industrial reality, that it cannot possibly be treated seriously.

PN1670

Now, can I pause there as well? They were the words, that is to say:

PN1671

far fetched and lacking in industrial reality -

PN1672

that were picked up by the Full Bench in Lamsun, the Full Bench of which your Honour was a member, in arriving at certain conclusions there. I'll come to that later. Then coming to his Honour's judgment again:

PN1673

It may be asked where, then, do you draw the line? The answer is that while it is not always possible to draw a line, it may be possible, nevertheless, to say whether something, in this case a particular log, falls on one side or the other side of it.

PN1674

I end the quote there. That's what my client is seeking to do, with respect, here. We say that it is not always possible to draw the line, but it is possible, nevertheless, when one looks at a particular log to say if it falls on one side or the other. As we've earlier submitted and we do now, this particular log, in our respectful submission, falls on the wrong side. Then at page 292, right at the bottom of the page, in the last two lines:

PN1675

Everything in the document points to figures having been plucked out of the air.

PN1676

That's the position here, we say. Everything points towards that. Then we come to the judgment of McHugh J. Could I draw your Honour's attention to page 307? It is the paragraph commencing:

PN1677

Nevertheless, if the demand is so extravagant that it cannot reasonably be understood as intended to provide for changes in terms and conditions of employment ...(reads)... really want what it demands.

PN1678

Can I just end the quote there for a moment? That is the position here, in our respectful submission, that:

PN1679

the demand is so extravagant that it cannot reasonably be understood -

PN1680

etcetera etcetera. The difference here is that we don't find any reference - and your Honour will understand that we do not have access to the transcript at this stage - but as I recall Mr Oliver's evidence, we don't find any reference to claiming things within the foreseeable future, we see a reference to them being claimed now. Therefore, we would submit that ordinarily, the proper inference to be drawn is that the organisation making the demand does not really want what it demands. Now, without reading the rest of the passage there, we rely on the paragraph commencing:

PN1681

Nevertheless, if the demand -

PN1682

down to the next paragraph:

PN1683

The terms of the demands in this case can hardly be said to reflect -

PN1684

and then almost to the end of the next paragraph, about point 8 on the page, your Honour sees the sentence commencing on the right-hand side of the page, and I'm quoting:

PN1685

The amounts involved are too fantastic to accept that the organisation really wanted what it demanded, either at the time of service or at anytime in the foreseeable future.

PN1686

Does your Honour see that paragraph?

PN1687

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1688

MR GALLAGHER: Thank you, your Honour. Then the next paragraph:

PN1689

In this case the conclusion is inescapable that the claims were formulated -

PN1690

and then to the end of that paragraph:

PN1691

For the reasons given by Mason CJ, Deane J and Gaudron J, however, I do not think that the rejection of such a demand can create a dispute for the purpose of the Act.

PN1692

If the Commission pleases, we rely on the SPSF case and the passages that I've taken the Commission to. The next authority that I wish to come to is the Attorney General for the State of Queensland v Reardon. That's 192 CLR at 1. Could I say this in general about this case? It has been indicated that this case somehow represents a paring back of SPSF. In actual fact, in my respectful submission, and I'll take the Commission to relevant passages from the judgment, it is an application of the principles stated in SPSF. First of all, can I take the Commission to the judgment of Brennan CJ and McHugh J at page 16? The paragraph commencing:

PN1693

In determining whether the service and non-accession to a log has given rise to an industrial dispute, the approach to be taken was stated by this court in SPSF -

PN1694

and then the extract is given, and I don't read that extract to your Honour. It goes over to page 17 of the judgment. Then at page 18 the paragraph commencing:

PN1695

Of course, inflation -

PN1696

What I want to refer to is about halfway through that particular passage, the sentence commencing towards the left-hand side of the page:

PN1697

The legitimate ambit claim can have regard to possible future developments and can allow some reasonable latitude in its formulation. But it cannot ...(reads)... the foreseeable future.

PN1698

I end the quote there. The High Court, if it pleases the Commission, does not use words in judgments lightly because the High Court knows that they're read by many people in the land. So, we place some emphasis on the words in that particular passage:

PN1699

reasonable latitude -

PN1700

and the words:

PN1701

reasonably be thought to be attainable -

PN1702

etcetera. Now, here, in our respectful submission, the claims in the log of claims cannot answer that description. To allow, for example, reasonable latitude is not to allow the claims made here to, as it were, survive. Then we come to page 20, Dawson J, and again we have a reference in that judgment to the SPSF case. We have his Honour referring to the judgment of Toohey J, this is about point 5 on page 20, the paragraph commencing:

PN1703

On the other hand, a demand -

PN1704

down to:

PN1705

not an easy one to draw.

PN1706

So, again, we have this application, as it were, of the SPSF case. Then we have the judgment of Toohey J commencing at the bottom of the page. At page 21 in the paragraph commencing:

PN1707

A great deal of material -

PN1708

The Commission sees this passage:

PN1709

The principles by which the issues raised by the appeal and the application should be determined were largely identified by the court in SPSF.

PN1710

To a considerable extent, these proceedings involve no more than the application of that decision. Then I wish to quote in terms of your Honour understanding what I'm relying on, down to the words:

PN1711

apply the decision -

PN1712

which is about halfway through that particular paragraph. So, again, we have the application of the SPSF principles. Then at page 22, this is in the first paragraph ending on the page, the sentence commencing on the right-hand side at about point 2 on the page:

PN1713

However, as I said in SPSF, a log may be so far fetched -

PN1714

etcetera etcetera. Then:

PN1715

This is not inconsistent with what was said in Ludeek. Indeed, it follows from the statement in that case -

PN1716

and I end the quote there. Then we have the judgment of Gaudron and Gummow JJ commencing at page 26. I don't take the Commission to their Honours' joint judgment. We then have the judgment of Kirby J. Now, if I can just make this reference, and the Commission will be just as well aware of it as I am, there are two ex members of the Commission on the High Court, Gaudron and Kirby JJ. Your Honour will know that Kirby J, in particular, has very fond memories of his time on the Commission and has always taken a particular interest in industrial relations matters, he still does. Certainly, his judgments indicate that and the speeches he makes from time to time as well. What his Honour did was to set out quite a number of general propositions which I'll come to, but in terms of the application of the SPSF case, I want to refer to page 36 of the report. It's the paragraph commencing:

PN1717

To determine whether the suggested industrial disputes -

PN1718

The passage that I wish to refer to starts at about point 4 on the page and it says, and I quote:

PN1719

To some extent, what is involved is no more than the application of the settled authority of this court, stated most recently and comprehensively in Re: SPSF.

PN1720

I end the quote there. Again, we have just about every member of the court applying the principles stated in SPSF. Then we have the general propositions set out by his Honour commencing at page 37. Of course, one could reasonably commend all of those to your Honour, and I know your Honour will attend to them. But we wish to refer to general proposition number 5, which commences at page 42. In that particular general proposition the Commission sees these words at page 43 commencing at about point 3 on the page. The passage commences about halfway across the page and it says, and I quote:

PN1721

The more extravagant the claims made, the greater is the risk that the Commission or the courts will find that the suggested "paper dispute" is not only contrived, which ...(reads)... to what is being demanded.

PN1722

If I could pause there, there's a reference to note 184, and your Honour sees at the bottom of the page that's a reference to the SPSF case. Then carrying on:

PN1723

In such circumstances, the paper dispute will be revealed as a bare claim for improved wages and conditions lacking the necessary connection with the ...(reads)... jurisdiction on the Commission.

PN1724

Again, reference is made to the SPSF case. I commend the rest of that passage on that page, your Honour, to the Commission. I don't seek to quote it. Then over on page 44 I really seek just to bring to your Honour's attention the rest of general proposition 5 and commend it to your Honour. I don't seek to quote it. Then general proposition number 6:

PN1725

Whether a paper dispute lacks the necessary reality and genuineness is a question of fact.

PN1726

Could I interpose there and say that I commend the rest of that proposition to your Honour, going over to page 45? Here, obviously:

PN1727

Whether a paper dispute lacks ...(reads)... question of fact -

PN1728

to be determined on the evidence before the Commission, that evidence being the evidence of Mr Oliver, the evidence of our witnesses, and also the documentary evidence which the Commission has received in evidence, including the log of claims. Then at the top of page 45 could I quote this:

PN1729

In certain cases, this will be no great burden because an examination of the log of claims will disclose how plainly fanciful or misconceived the demands are, warranting the conclusion that they lack the reality and genuineness necessary to give rise to a dispute.

PN1730

I end the quote there. Again, we see his Honour using this word "fanciful" and also the word "misconceived." An examination of the log of claims in this particular case, in our respectful submission, will lead to the conclusions that his Honour there refers to, and that that will be no great burden, as his Honour has said. At the bottom of that page, page 45, your Honour sees a note at about point 6 on the page, a line commencing "Dispute" and then "200." The passage after that, which I quote:

PN1731

In examining the demand made in a particular case, the Commission at first instance and the courts thereafter will be justified in considering the real industrial context ...(reads)... adopted by the Commission -

PN1732

Again, a reference to the SPSF case:

PN1733

current and projected conditions in the industry in question and the role of industrial arbitration in Australia in introducing conditions of employment once considered fanciful but in time viewed as standard.

PN1734

Then the Commission gives some examples of that at the bottom of the page such as:

PN1735

equal pay for work of equal value, paternity and maternity leave provisions.

PN1736

Now, could I indicate this to the Commission, when one considers that passage I've just taken the Commission to and applies the reasoning of his Honour to the circumstances of this log of claims, then one immediately sees, in our respectful submission, the lack of reality. Then again in general proposition number 7 - and this needs to be stated with some force - one sees at about point 3, page 46, the passage, and I quote:

PN1737

The ambit doctrine will not sustain demands which are so extravagant that they demonstrate the lack of any foundation for a real and genuine dispute.

PN1738

I end the quote there. Now, what his Honour is saying there really is this, in our respectful submission, a union can't come along with extravagant ambit claims and hope that it meets the test of genuineness in the sense that it simply says well, look, here's an ambit claim, what we seek is a dispute be found, from their point of view it's a ho hum exercise, if I can term it that way, and not very much time should be taken up in analysing it and in giving consideration to it. With respect to him, that is the kind of approach with Mr Terzic has urged. This is not really a difficult matter for the Commission to grapple with. All of the decisions simply mean that a dispute can be found and let's get on with it, so to speak.

PN1739

The High Court is saying that that is not the approach. If I could say this with respect to Kirby J, in our respectful submission, his judgment would possibly be seen to be the most liberal and, with respect to other members of the Bench, literate in an industrial relations sense. It is obvious his Honour has a very good appreciation of industrial relations matters and yet his Honour is saying:

PN1740

The ambit doctrine will not sustain demands -

PN1741

etcetera etcetera, which were so extravagant. I don't trouble the Commission any further there with that. Over at page 57, the passage right at the bottom of the page, and I quote:

PN1742

An encouragement to greater reality by unions in the terms of logs of claim involving such disputes is certainly desirable. The perils of unreality are illustrated by the SPSF case.

PN1743

I end the quote there. Here we don't see any introduction in this log of claims of greater reality. Not much notice has been taken of what Kirby J said there in that regard. Then we see over at page 62, this is where his Honour is examining in some detail the matter of Lamsun. The Commission sees at about point 8 on the page, this is a sentence commencing on the right-hand side:

PN1744

Nine clauses of the log of claims were found to be far fetched and lacking in industrial reality.

PN1745

Then the reference is given to the Lamsun case. The Commission refers to the excision of certain offending clauses. This is at page 64, right at the top of the page. Then again we have the warning being introduced by his Honour, warnings which seem to be conveniently ignored by the applicant in this case. Right at the bottom of page 65 the sentence commencing on the last line:

PN1746

If the demands are so unrealistic that they suggest a purpose different from the creation of an industrial dispute, the unions will run the risk of being snared by their own extravagance. However, that response is clearly reserved to an extreme case.

PN1747

I end the quote there. Here, in our respectful submission, the Commission will find, at least we so urge, that the union has been snared by its own extravagance. I end reference to the High Court judgment there, if it pleases your Honour. Then I come to the Lamsun judgment. That's reported at 61 IR at page 76. Does the Commission have that?

PN1748

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1749

MR GALLAGHER: Thank you, your Honour. There is some examination of authorisation there which I don't take up much time with. But it commences at page 77, the paragraph:

PN1750

We turn first to the issue of authorisation and the service of the letter of demand and log of claims.

PN1751

I don't take up your Honour's time with that, but the Commission there examines it. Of course, your Honour is aware that this was a judgment by Senior Deputy President Hancock and Deputy President Harrison, as your Honour then was, and Commissioner Leary. Going over to page 80, the paragraph commencing:

PN1752

The issues raised by the remaining grounds of appeal have been considered.

PN1753

Then some print numbers are referred to:

PN1754

and from these decisions and the decision of the High Court in SPSF several principles can be extracted. The principles of relevance here are -

PN1755

and then I draw attention to principles 1, 2, 3, 4 and 5. Of course, this decision was made, obviously, before the last High Court decision that I referred to. Then at page 81 this paragraph commencing in the middle of the page:

PN1756

As to the log itself, it is clear from the decision in Re: SPSF that it will not be often that claims in a log are incapable of giving rise to an industrial dispute. The Commission is required to have regard to existing industrial ...(reads)... in respect of the claims are made.

PN1757

Could I just pause there? Having regard to the description of this log, it is obvious, in our respectful submission, that that warning by the Full Bench of the Commission has not been paid any attention by the applicant in this case. Then carrying on:

PN1758

When considering the genuineness of a log of claims, there will be a degree of subjective assessment of the claims made by an individual Commission member ...(reads)... our view fall within this description.

PN1759

Then there were nine clauses referred to which fell into that description. That's 1 through to 9, page 81 through to 82, and I don't take the Commission to those. Could I next come, if the Commission pleases, to intelligibility of the claims? The first judgment that I wish to refer to is the Queen v Commonwealth Arbitration Commission. That's referred to at [1965] HCA 50; 113 CLR 228. That was the judgment concerning the Melbourne and Metropolitan Tramways Board. Again, it's a decision of the High Court which is often referred to in this Commission, so I don't trouble the Commission with going to the background of the case. I know the Commission will be familiar with it. Could I take the Commission to page 239 of the judgment? That is the judgment of the then Chief Justice, Barwick CJ. At page 239, it's the passage commencing, your Honour:

PN1760

It is settled that a union demand on employers in the same industry -

PN1761

etcetera etcetera, down to the end of that particular paragraph. The part that I wish to rely on, in particular, is the last couple of sentences or maybe the last sentence of that, and I quote:

PN1762

Though it is essential to ensure that a dispute arising out of a written demand for agreement is real, single and interstate in its nature, the language of the written demand ...(reads)... read and interpreted.

PN1763

Then, your Honour, the next paragraph:

PN1764

Yet though not a pleading, the demand must be sufficiently precise to enable not merely the existence but the ambit of the dispute to be determined. The facility ...(reads)... refusal or failure to agree.

PN1765

Then there's an authority quoted:

PN1766

Thus the question is, whether on a fair reading of the letter of 1 March, the union conveyed to each of the addressees of the letter the same comprehensible demand.

PN1767

Then if I could take the Commission to page 255, to the judgment of Menzies J, and it's the paragraph commencing in the middle of the page:

PN1768

For the foregoing reasons, I have come to the conclusion that the demand was not sufficiently intelligible to form the basis of an industrial dispute ...(reads)... Engineers of Australia said -

PN1769

Could I just pause there, your Honour? That's the same judgment that Barwick CJ referred to:

PN1770

No doubt the demands which are not intelligible or convey nothing clearly to the mind of a person to whom they are addressed may fail to give rise to an industrial ...(reads)... give rise to one dispute.

PN1771

I end the quote there. Your Honour, we're, of course, referring in terms of intelligibility to clause 1 of the log of claims and the lack of intelligibility which is attached to that particular clause. We really could not get, with respect to him, any coherent explanation from Mr Oliver as to what that meant. Then can I come, your Honour, to the next and last authority to which I refer in terms of intelligibility? That's the Adelaide Womens' Centre case. That's at 68 IR at page 362. Again, I won't burden your Honour with the background of that case. I wish to refer to page 385 where the conclusions commence. Does your Honour have that judgment?

PN1772

THE SENIOR DEPUTY PRESIDENT: No, I do not have it.

PN1773

MR GALLAGHER: Should I go ahead?

PN1774

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead. It's the only one I don't have.

PN1775

MR GALLAGHER: It's the passage commencing at the bottom of page 385 commencing:

PN1776

The High Court, in a number of decisions -

PN1777

and then it goes on and there's a reference to Re: Hedney. Then over to page 386 at about point 8 on the page, and I don't take up your Honour's time any further with that. Now, if the Commission pleases, having gone through the principles that we wish to rely on, can I now make submissions as to factual matters? I'll do this as briefly as I can. Your Honour should have for this purpose the log of claims. Of course, I wish to refer to that. That is conveniently to be found in AMWU 1 and also AMWU 2, AMWU 3 and AMWU 11. Can I go to AMWU 11? Your Honour sees there at what is page 80 of the minutes under the heading "Log of Claims" a reference to the motion that was passed. The motion that was carried was:

PN1778

The National Council endorses the National Research Centre to serve the log of claims on the abovementioned companies.

PN1779

The National Research Centre, as I've submitted, is a non-existent body insofar as the union rules are concerned. So, that is what we identify to be defect number 1 in the authorisation. Your Honour knows that the log of claims was served in terms of being signed, that is, the letter of demand, by Mr Oliver. The resolution of July 2000 does not authorise the service of the log of claims by Mr Oliver. That is defect number 2 as we identify it. The next defect, defect number 3, is that the motion passed on 13 July 2000 makes no decision, gives no authorisation and does not even mention any letter of demand. That is defect number 3.

PN1780

In that context, your Honour, can I refer to a decision relied on by my friend? That is print M6390. Could I take the Commission to that? That was a decision of Deputy President Drake in the Wesfarmers matter. I think my friend handed it up yesterday. In terms of defect number 3 that I've just referred to as the letter of demand, her Honour helpfully sets out the relevant chronology which existed in that matter. This is at page 2, and the first date in the chronology is 7 December 1994. Your Honour sees this:

PN1781

The national secretary of the union organised a postal ballot of the national council of the union. The letter whereby this was organised is set out below.

PN1782

Then "two national councillors" etcetera:

PN1783

re national council endorsement of letter of demand/log of claims.

PN1784

Then there's a reference to Barry Terzic. So, this was the AMWU. There's a specific reference there to the letter of demand. Now, my friend has referred to the way in which this motion was passed, and this is my word not his, he has referred to it in a particular way, but the description he gave indicates that the passing of the motion was sloppy. As I say, that's my word, not his. But sloppy to the extent that left completely out of the motion was this reference to a letter of demand. There is simply no authorisation for it. Then going on with the judgment, this is at page 3:

PN1785

12 December 1994, national secretary wrote to the research officer indicating -

PN1786

etcetera etcetera. Then at about point 4 on the page:

PN1787

The decision is in the following terms -

PN1788

This is a decision taken by way of postal ballot pursuant to the then rule 7J. I'm not quite sure if that's still the same rule, but I don't trouble with your Honour with that:

PN1789

motion that national council endorse the serving of a log of claims and letter of demand on the following -

PN1790

and then it goes on. So, we see here that the union has simply not given such attention to the passing of the relevant motions for authority that they fail, in our respectful submission, right at the outset in the sense that there was no proper authority for the log of claims and the letter of demand. Then we come to what we identify as being defect number 4. That is, there is a reference in the motion to serve the log of claims on the abovementioned companies. Now, it would be accepted on the evidence of Mr Oliver and on the face of AMWU 11 that the log of claims was not before the meeting on 13 July. So, that is defect number 4. The log of claims referred to was simply not before the meeting on that day.

PN1791

Then we come to what we seek to identify as defect number 5. Might I indicate, your Honour, by deference to previous decisions that this is a formal submission as to defect number 5? That is to say, the log of claims is a document. It does not comply with rule 16 as to execution. The letter of demand is a document. It does not comply in the same way. The notification of dispute is a document. It does not comply and so on. Now, can I take your Honour to, again, print M6390 to indicate the way in which we make this submission? That, again, was the decision of her Honour Deputy President Drake and some consideration is given to this matter, I think, commencing at page 15, the paragraph:

PN1792

Mr Lucerv referred to the definition of a document -

PN1793

etcetera etcetera. Then can I take your Honour over to page 16 where her Honour says this, this is the last paragraph commencing on the page:

PN1794

A letter of demand is just a letter. In many cases, it is a document. But it is not contemplated by these rules that correspondence is a document. The rules cater for industrial agreements and then the residue of documents ...(reads)... not in my opinion.

PN1795

I end the quote there. Now, with respect to her Honour, that analysis is unconvincing and wrong. Her Honour, in fact, about that asked herself the wrong question. That is, would an ordinary member of the union or an official contemplate. In my respectful submission, that is the wrong question. When we see a word in union rules, if the word - and this goes to contracts or statutes, it's a general proposition - if the word is not defined within the instrument concerned - and if it is, then that necessarily sets the parameters - but if it's not, the question then becomes what is the ordinary meaning of the word.

PN1796

There is just no doubt that the things which her Honour found were not documents in terms of the question she asked were documents. Now, that judgment went on appeal to a Full Bench. That's print M9562. Again, I'm going to these judgments, your Honour, to indicate the formal nature of the submission we make, but nevertheless, we make it, because your Honour, obviously, is bound in a sense by this Full Bench decision that I'm now referring to. At page 2 of that particular judgment there is this passage:

PN1797

There is a rule 13A which provides for the execution of documents under the common seal of a union by any two members of the national council authorised for ...(reads)... contemplated in this rule.

PN1798

We simply make the formal submission that for the reasons I've given in submissions, that conclusion is wrong. Then we come to what we postulate as defect number 6. That refers to the authority of Mr Cameron to institute the dispute. We have reference to rules 10(1)(b). Could I perhaps go to the rules just to demonstrate this, your Honour? It's rule 10(1)(b), the last sentence:

PN1799

The national secretary may institute proceedings on behalf of the union.

PN1800

That's what it says, and we accept that. But, obviously, we say after appropriate authorisation. For that purpose, we go to rule 17(1)(a). It says:

PN1801

Where an industrial dispute concerns members of a union employed in more than one state, proceedings before an industrial tribunal or court in respect of the dispute may be instituted by the national council or person or persons authorised by it to do so.

PN1802

I end the quote there. That conjures up the situation of specific authorisation, and here there is no specific authorisation. So, that's defect number 6. Then we have the letter of demand, to be found in, I think, it's AMWU 1. Could I take the Commission to that? Your Honour sees a reference to this in the second paragraph:

PN1803

I am authorised to receive your reply.

PN1804

I end the quote there. There is no such authorisation. You'll recall Mr Oliver said that the authorisation was to be found in the resolution passed on 13 July. Now, that resolution, in our respectful submission, provides no such authorisation. Then we have defect number 8, which is to be found in AMWU 3. That's the statement of facts put on by Mr Cameron. Can I just give your Honour the reference to that? It's in the third paragraph:

PN1805

The national council of the AMWU authorised the serving of the letter of demand and the log of claims served on each of the parties.

PN1806

To a certain extent, I suppose right at the outset I identified the deficiency in relation to the letter of demand, but there is no such authority to be found in relation to that letter of demand and in paragraph 2, where Mr Cameron says:

PN1807

I am authorised by the national council of the AMWU to make this statement -

PN1808

Again, we have Mr Oliver giving evidence, as I recall it, that the authority for that is to be found in the 13 July resolution, and there is no such authority to be found. That is defect number 8. We then have, if the Commission pleases, again in AMWU 3, reference to preparation of logs of claim by Ms Paiva. That's defect number 9 in the sense that the preparation of the logs of claims obviously occurred subsequent to the July 2000 meeting. They're the defects that we identify, nine of them, and if the Commission pleases, your Honour will see that they are defects in descending order of importance. The first few defects that I identified, in my respectful submission, are fundamental and would cause the Commission to come to the conclusion that there was no proper authority in this matter.

PN1809

Can I now come to the situation concerning the lack of industrial reality of the claims? Now, for this purpose, your Honour, one needs to refer to - I think it's AMWU 1 where the log of claims is to be found. I give your Honour a reference to certain clauses of it. Firstly, clause 1, and this goes to the amounts claimed. I'll address intelligibility at a later time. Clause 1, clause 3, special rates and allowances. You'll recall Mr Oliver attempting to quantify this by saying if they were applicable. The clause says:

PN1810

All employees shall be paid -

PN1811

etcetera. Clause 4, industry allowance:

PN1812

All employees shall be paid -

PN1813

Clause 5, site allowance:

PN1814

All employees shall be paid -

PN1815

THE SENIOR DEPUTY PRESIDENT: Would you maybe consider, in relation to this, if you're going to go through the whole log, whether the preparation of a document might be just as convenient for me in terms of detailing all the clause that you say in this log lack industrial reality?

PN1816

MR GALLAGHER: I can do it very quickly. I'm not going to take up much time with it, your Honour.

PN1817

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN1818

MR TERZIC: Perhaps he could just what he doesn't object to, that might be quicker.

PN1819

MR GALLAGHER: I'm not going to take up much time with it. I think I referred to clause 5 and clause 6, clause 7, clause 8. Now, at the minimum, your Honour, for the new employee that gives rise to a payment of $3450 per week and at the maximum, level 14, to a payment of $4850 per week. Those claims fall within the categories that I've earlier identified in submissions, especially the fact that they're claimed now, that's the evidence that fell from Mr Oliver. Could I go to clause 17, hours of work? Your Honour, quite apart from the amount of hours referred to there, we draw attention to the last words in the clause:

PN1820

in a form and manner determined by the employees and the union.

PN1821

Now, that is completely lacking in any possible industrial reality. We go to clause 23, rest clauses, 30 minutes in every hour. Clause 17 and 23 read together reduce hours of work to 12 and a half. When we throw in clause 22, meal break, that's one hour to be counted as time worked. We end up with seven and a half hours' work per week, and then, if the Commission pleases, we consider annual leave in clause 24, 10 weeks, your Honour sees the reference to first class airfares which can mean, according to Mr Oliver, a fare to London. Then we have public holidays in clause 25, 30 days. That's a total of two and a half months a year. Then we throw in clause 32, special leave, that's 60 days per year for private purposes. So, we have four and a half months of cumulative leave to which the employee is entitled.

PN1822

So, what do we then end up with in terms of the reality of the position? A new employee on $3450 a week, a level 14 employee on $4850 a week, working seven and a half hours per week in a form and manner determined by the union and the employees with leave of four and a half months per year. If the Commission pleases, those claims are so far fetched and lacking in industrial reality that the Commission would have no difficulty in so finding. If the Commission ultimately is not prepared to so find - no, I withdraw that. Now, that deals with the matter of genuineness and reality, or unreality. We then come to intelligibility. I've really made submissions about that, your Honour, as to clause 1 of the log of claims.

PN1823

The lack of intelligibility was almost - perhaps not quite - but almost conceded by Mr Oliver. So, your Honour, we have these matters, in closing our submissions, firstly, the log of claims and letter of demand were not appropriately authorised and therefore there is a failure at the absolute threshold. Secondly, the dispute is not genuine in the requisite sense and no dispute should therefore be found. Thirdly, and in a sense, this is in the alternative, all the specific clauses identified by us a moment ago should be purged, as was done in Lamsun, having regard to lack of genuineness, and clause 1 should also be purged for the additional reason that it is unintelligible.

PN1824

If the Commission pleases, on the basis that the Commission is persuaded as to step one in what I've just identified, that is, the lack of authority, it would obviously not be necessary for the Commission to go on to consider steps two and three in the steps that I've just referred to. Unless the Commission would want to ask me any particular questions about any of that, they're the submissions I make on behalf of my client.

PN1825

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Terzic?

PN1826

MR TERZIC: Thank you, your Honour. Mr Gallagher has made an extensive attack on the manner in which the union authorised the making of these demands. I will go through each and every one of them but in a fashion that corresponds with the way in which they were presented to this Commission, and that is they are in descending order as in terms of importance. The first defect dealt with authorisation, as to having the Research Centre being authorised to serve the log. Mr Gallagher relied on the principles set out in print M6839, the Griffin coal matter. That decision of Deputy President Duncan is eminently distinguishable from the facts before the Commission now.

PN1827

What the union in question had done was attempt to confer upon certain office holders within that organisation a standing authority or discretion to serve and make demands willy-nilly one might say. But here there is a specific task assigned to a particular group of persons within the union. There is no general discretion at large. Now, I won't read all of the relevant passages in the decision, but I would start by identifying them. That will then reduce the amount of analysis that needs to be had of the decision. If one starts at page 2, one can see reference to an earlier decision made by Deputy President Duncan where he stated that the central executive of the relevant union had not directed that a particular decision be made, but in the words therein used:

PN1828

They were not directed to initiate particular action, but given a general discretion. Whether this is valid is moot.

PN1829

The particular resolution that purported to confer that discretion is found at page 2 of the decision. The whole principle can be summarised, to some extent, by a brief passage on page 7 at about point 7 of the page. His Honour notes:

PN1830

There is a decision taken by the executive to initiate action and the relevant officer is given discretion in relation to priorities. This may be contrasted with the resolution of the central executive which initiated no action or no action in particular.

PN1831

Here, a particular action was authorised and the persons served, the employers served, are set out in attachment 3 to the minutes of the national council of July 2000. Or again, in the last sentence of the second paragraph, in making a distinction Deputy President Duncan stated:

PN1832

In this case there was no direction but an absolute transfer of discretion.

PN1833

Your Honour, nothing like that has occurred, nothing like that has occurred. The national council has not attempted to confer on the National Research Centre an absolute discretion to serve whomever the National Research Centre sees fit. The parties served in this instance were the parties authorised specifically and set out in attachment 3. What has occurred is not a conferral of discretion, but simply a direction to perform a specified task. In other words, carry out the clerical and physical elements of the task. It wouldn't be for Mr Cameron to stuff hundreds of documents into hundreds of envelopes and then use his own tongue to lick the envelopes, seal them, cart them down to the Post Office and then mail them.

PN1834

This carrying out of a task was what was directed at the National Research Centre and as one can see from various pieces of evidence that are now before the Commission from Mr Toth, who, I think, deposed that he bundled up boxes and took them to the Post Office, and Ms Janice Paiva, who carried out various other physical elements of giving effect to the resolution, is what happened. Mr Oliver revisited the whole process in signing the letter of demand. Your Honour, there is a world of difference between a conferral of discretion and a carrying out of particular exercises. And the fact that was done can be found to be a legitimate exercise of the powers of national council. To amplify and emphasise this point, the powers of the national council are set out in the union's rule book, rule 8(1)(h) states:

PN1835

The national council can ensure that officers and committees of the union carry out the rules, decisions and policies of the union and impose penalties in accordance with these rules.

PN1836

Officers in the rule book has a slightly different meaning to the word officers in the Act. It doesn't necessarily mean an office holder of the union. The two classes of persons in the rule book are referred to as officials, and that can be evidenced by, for example, rule 13 where they talk of the rights of officials. Officials in perhaps a slightly confusing state of affairs in this union's set of rules really refers to office holders, as per the definition of the Act. Officers should really be thought of as salaried employees of the union such as national research officers. That can be found on a construction of the rules when one looks at rule 41 provisions as to officials and salaried officers. I won't read the rules at length and make that distinction at length.

PN1837

That in itself could be a matter that could take up endless time of this Commission. There are various Federal Court judgments where that distinction is noted. I just can't think of the names of those judgments at this juncture. So, that deals with the notion of the National Research Centre being authorised to serve. It is not, strictly speaking, authorised, it is directed to carry out a particular instruction. Defect number 2 is adequately answered on a reading of the Wesfarmers cases, we say. There is that distinction between rules that are mandatory and rules that are directory. I've emphasises that before. I think I said section 195. I didn't check the statute. It is in fact section 194(2) and that distinction is referred to by the decision maker at first instance, Deputy President Drake, as she then was, and again by the appeal bench in those matters.

PN1838

Defect number 3 attacks the authorisation because within the motion that gives effect there is no reference to a letter of demand. But as the evidence before this Commission demonstrates, a letter of demand was signed by Mr Oliver and served on the employers. Mr Oliver dealt with that issue by stating that in his mind and in the minds of all it would've been obvious and implicit that when one serves an ambit log of claims, it must be covered by the requisite letter of demand to give the whole exercise the necessary degree of clarity. In relation to that, there are two ways I wish to dispose of that argument. One is, it would be common industrial parlance to say to log a company or to serve demands or to serve claims.

PN1839

All of those expressions are interchangeable shorthand methods of saying to serve a properly authorised letter of demand in terms X accompanied by the requisite log of claims upon employers X, Y and Z. In other words, it is just really an abbreviated form of saying what is common in industrial parlance. Mr Gallagher made reference to the High Court using language in very precise terms because each word of a High Court judgment, of course, can be used to establish some sort of authority for something or other. So, the High Court, of course, would have to be very mindful of the words it chooses. But I would invite the parties to revisit the CFMEU v Dean at page 545, in particular, the passage referred to by my friend. Therein it reads, and I quote:

PN1840

In our view, so it is with a letter of demand requiring acceptance of a log of claims.

PN1841

I end the quote there. So, in that particular passage they make it quite clear that there's to be a letter of demand and a log of claims. But one only has to go several lines below that passage, still on page 545 of CLR, and there they say:

PN1842

Once it is accepted, as it must be, that jurisdiction depends upon the existence of a dispute and the dispute is said to be constituted by non-acceptance within seven days of the service of the log of claims -

PN1843

I end the quote:

PN1844

of the service of the log of claims.

PN1845

The second time the whole process is referred to by the High Court in that passage they didn't again refer to the letter of demand and log of claims, because it is abundantly clear in the context of what is going on that a letter of demand follows a log of claims, they go together like love and marriage, like a horse and carriage, that is what was in the mind of the committee of management when they passed this resolution. Perhaps there was a little bit of abbreviation or sloppiness in the recording of the minutes, but to read the minutes in the fashion Mr Gallagher proposes, what inference is to be taken, that the national council deliberately on that occasion decided to serve solely a log of claims with no letter of demand?

PN1846

If that was their intention, I would suggest that should've been clearly expressed. That is not the inference that should be taken from the particular words of the motion. That would be a rather absurd construction to be put on the whole thing. Early in the minutes where the request is referred to, the verb "to log" in its infinitive form is found. I would suggest that "to log" also incorporates the notion of having the demands expressed with the particular claims in the standard form. I think we're up to defect number 4. That was that the log of claims was not before the national council during the consideration of the motion on the 13 July 2000 morning session.

PN1847

Well, I've dealt with that earlier by saying there is a standard union log of claims and evidence of that has been brought forward. Of course, it was in the mind of the committees of management that it would be the standard log of claims. I assert that of course it would be in the mind of the committees of management that it would be the union's standard letter of demand, the documents that are served on thousands of employers, I would imagine, each year. It is very much a commonplace procedure that the union enters into and brings to this Commission for inquiry and finding as to whether those processes do constitute an industrial dispute.

PN1848

Defect number 5, again, I say is answered by the decision in the Wesfarmers matters and the notion that union rules can be mandatory and/or directory. Defect number 6 goes to the institute of proceedings by Mr Cameron. We can distinguish Griffin Coal in this matter. As I stated in my primary submissions, under the rules Mr Cameron has a specific power to institute proceedings. That would override the general power that is found later in the rules at rule 17, I think. As for defect number 7, Mr Cameron's authority to receive a reply, one would say that would be implicit in his role as the chief officer of the union and the specific powers that are reposed with that office of national secretary of the union under rule 10.

PN1849

As for defect number 8, various questions as to the veracity of all that was deposed in statements filed in this Commission by, among others, Mr Cameron, that would not be fatal to the existence of a dispute. To the extent there is an irregularity there, I would suggest the Commission exercise its discretion over these pettifogging arguments by using section 111(1)(q). If the matter is of such importance that my friend thinks Mr Cameron has falsely declared a statement, let him take that up with the Director of Public Prosecutions or the appropriate body. I don't think anything rides or rests on that. The next attack on our allegation of a dispute goes to genuineness and the content of various elements in the log.

PN1850

Your Honour, this is well traversed law. I don't want to say too much more about this, but just keep in mind briefly that the log that was rejected in SPSF was a rather unique log. It didn't have any particular resemblance to the log that the AMWU makes its business to serve. That might be called a traditional or standard log. It's probably not that different to many of the logs that come before the Commission on allegations of an industrial dispute. I would note, too, that in SPSF a traditional log, a log served by the Electrical Trades Union of Australia passed muster by the High Court. But it was just the rather unique and experimental - I think post-modernist approach, in the words of Gaudron J - of the log then before the Commission that was challenged which led it to be rejected as fanciful.

PN1851

Your Honour, the AMWU's log is a standard industrial log with a grounds dispute day in day out in industrial life in Australia. There is no basis for rejecting it on the approach taken by Mr Gallagher. Lastly, intelligibility was raised. Mr Gallagher referred to various passages from the Adelaide Womens' Centre case. There is a rather succinct passage that appears on page 386. It is, in fact, a quotation from a case in the High Court, Amalgamated Metalworkers Union Ex Parte: Shell. As to looking at the intelligibility of a log of claims, they state that, and I quote:

PN1852

The general approach is to look at the substance of the demand to see if there is an intelligible claim, rather than to construe it as if it were a document creating legal rights and obligations.

PN1853

I end the quote. Your Honour, it would be a facile thing for my friend to find witnesses to say well, let's really apply serious analysis to claim 1, the classification structure. There are no definitions in there, how are we to know how this is to apply in practice. Well, the answer to that is in the log. It says there are to be further negotiations between the employers served and the union, and also there are other criteria therein mentioned such as references to skills, on the job training etcetera. I forget them all. But it would be quite within the capacity of the parties to use that claim as some of the initial building blocks or the starting point in developing, through negotiation or perhaps arbitration if necessary, an appropriate structure to meet the needs of the industry or the particular employer.

PN1854

That is what it is meant to do. It is not intended to be a final legal document which sets out the exact and precise rights and obligations of the parties. That is permissible on the authority of the High Court and that particular passage was in the very log of claims that went before the Commission at single Commissioner level, Full Bench level and the Federal Court and was found to be capable of grounding an industrial dispute. Your Honour, we maintain our allegation and we ask that the dispute be found in the manner sought. If the Commission pleases.

PN1855

THE SENIOR DEPUTY PRESIDENT: I intend to reserve my decision in this matter and the Commission will now adjourn.

ADJOURNED INDEFINITELY [12.03pm]