C3469/500, Transcript of Proceedings [2001] AIRCTrans 36 (21 February 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5781
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER BACON

C NO 34695 OF 2000
C NO 38923 OF 2000
C2001/224

APPLICATION UNDER SECTION 170MW OF THE ACT
BY YALLOURN ENERGY PTY LIMITED FOR AN ORDER
TO TERMINATE THE BARGAINING PERIODS ARISING
IN C NO 30809 OF 2000, C NO 22953 OF 1999,
C NO 37215 OF 1999 AND C NO 36504 OF 1999

APPEAL UNDER SECTION 45 OF THE ACT BY
CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION AND ANOTHER AGAINST THE REFUSALS OR
FAILURES TO EXERCISE JURISDICTION BY
COMMISSIONER LEWIN AT MELBOURNE ON 30
OCTOBER AND 2 NOVEMBER, 2000 IN C NO 34695
OF 2000 RE TERMINATION OF BARGAINING PERIOD

APPEAL UNDER SECTION 45 OF THE ACT BY
CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION AGAINST THE DECISION OF COMMISSIONER
LEWIN AT MELBOURNE ON 2 NOVEMBER 2000 AND
THE ORDER OF COMMISSIONER LEWIN AT MELBOURNE
ON 8 NOVEMBER 2000 IN C NO 34695 OF 2000

MELBOURNE

11.33 AM, MONDAY, 5 FEBRUARY 2001

PN1

SENIOR DEPUTY PRESIDENT POLITES: We have called all these matters on together for purposes of taking appearance and programming the matters. That is not to say that we may not proceed with any one of them today. May we have the appearances, please?

PN2

MR J. SHAW QC: I seek leave to appear for the Construction, Forestry, Mining and Energy Union with MR D. LANGMEAD in relation to matters 38923 of 2000 and matter 224 of 2001, and in relation to the third matter, the section 170MX matter, I would seek leave to appear with MR A. SLETHAN, again for the CFMEU.

PN3

MR M. GEORGIO: I appear for APESMA in 34695 of 2000 and I seek leave to intervene in 224 of 2001 and 38923 of 2000.

PN4

MR N. HENDERSON: I appear for the Australian Services Union and with me is MR M. RIZZO. We appear in all of the matters except for matter number 224 of 2001 in which we seek leave to intervene. If the Commission pleases.

PN5

MR N. GREEN QC: May it please the Commission, in each of these matters I seek leave to appear with my learned friends MR M. McDONALD and MR T. JACOBS.

PN6

SENIOR DEPUTY PRESIDENT POLITES: Are there any other applications? Is there any objection to - well, I don't expect there to be any objection to counsel appearing in any case. In that case, leave is granted to counsel in all matters. Is there any objection to any of the applications to intervene?

PN7

MR SHAW: No, your Honour.

PN8

SENIOR DEPUTY PRESIDENT POLITES: In that case, leave to intervene is granted in all cases. Yes, well, as to the programming of the matters, I think the bench was disposed to determine the appeals today and to seek to program the MX. Is there any dissent from that?

PN9

MR GREEN: No dissent. May I say this to the Commission. With regard to the appeal related matters, I will be calling on my learned junior, Mr McDonald, to address the Full Bench. With regard to the MX matters, once my learned friend, Mr McDonald, has completed his submissions, there are a number of matters which I will seek to inform the Commission, matters that I have raised with Mr Slethan, who it seems will have the conduct of the MX matter, should that stage be reached.

PN10

SENIOR DEPUTY PRESIDENT POLITES: How long is it going to take you to dispose of those, Mr Green. I do not want to have people who are only interested in the MX matter sitting around, if - - -

PN11

MR GREEN: I could tell you in probably three or four minutes what I want to inform the Commission about, your Honour.

PN12

SENIOR DEPUTY PRESIDENT POLITES: Well - and I think subject to anything anybody else says, we might adopt that course. Yes, Mr Green.

PN13

MR GREEN: May it please the Commission. What I was about to say, of course, is said on a contingency basis. The appeal related matters, we make no assumptions about the outcome, but I do ask for the purposes of this discussion that the Commission assume a favourable outcome to the interests of Yallourn Energy. In that event what, we, for Yallourn Energy, propose is that the Commission list the MX matter for an early hearing and there will be a number of days required for that purpose.

PN14

May I inform the bench that Yallourn Energy's preparation of its material is in a very advanced state. We expect by, at the end of Friday this week, to be in a position to file and serve our material in support of the award sought under section 170MX of the Workplace Relations Act. We have in the hearing room this morning a draft MX award and with the leave of the Full Bench, I would seek to file in the Commission and make available to our opposition, a text of the draft MX award that will form the centrepiece of the arbitrated hearing. I make available to the bench and our opponents, copies of that draft award.

PN15

MR SHAW: If the Commission pleases, providing all of our rights are reserved, we have not seen it. I do not think we have seen any actual document that is sought to be filed, but obviously we would need time to consider that. The mere filing in the Commission is not opposed.

PN16

SENIOR DEPUTY PRESIDENT POLITES: Thank you. Well, it is subject to all of those riders that you announced earlier, Mr Green.

PN17

MR GREEN: Yes, sir.

PN18

SENIOR DEPUTY PRESIDENT POLITES: We will mark it, I think - we will mark it exhibit G1 in C No 34695 of 2000.

EXHIBIT #G1 TEXT OF THE DRAFT MX AWARD

PN19

MR GREEN: May it please the Commission. Again, on the same assumption that I have indicated, should the appeal related matters be favourably resolved to the interests of Yallourn Energy, we will - we foreshadow that upon this bench handing down its decision or decisions in those matters, we would be requesting an early hearing. Our estimate is that the hearing would occupy 10 sitting days of the Commission and we would ask at the appropriate time that 10 hearing days be allocated as two consecutive working weeks.

PN20

May we also foreshadow that should those appeal matters be resolved our way, we will be requesting the Commission to make a direction that would require those opposing the award to put on and serve their material within, say, 10 days from the date that the Commission brings down its decision. We would then ask that Yallourn Energy have, say, seven days, five days if need be, to put on its material in reply. And we contemplate a process whereby on a date shortly after that last mentioned date, the Commission would enter upon the hearing with regard to the application for an award.

PN21

And we say that, of course, against the background of which the Commission will be mindful, namely, that by Commissioner Lewin's order to terminate the bargaining period, the date 2 May assumes significance because that is the date before which the unions are disabled from initiating a bargaining period. Congruently with Commissioner Lewin's order to terminate the bargaining period, there is also the order of the Commission constituted by Commissioner Lewin under section 127 prohibiting the CFMEU from taking industrial action.

PN22

That was an order that was made on 2 or 3 November last year and it cuts out on 2 May this year. So they are, if you like, the outer boundaries within which we have propounded the timetable that we have just mentioned to the Commission. May it please the bench.

PN23

SENIOR DEPUTY PRESIDENT POLITES: Yes, thank you. Mr Shaw.

PN24

MR SHAW: If the Commission pleases, we would like to reserve our position during the morning about the proposed timetabling of any such arbitration as propounded by the employer. Mr Tony Slethan of the CFMEU will be conducting any arbitration that does occur pursuant to section 170MX and I would like to liaise with him about the programming arrangements. But, of course, there are, we would submit, substantial hurdles facing that arbitral process and it is those that we would seek to deal with today.

PN25

Your Honours and Mr Commissioner, the matters that are listed today are, firstly, an appeal pursuant to section 45 by the CFMEU against the decision of Commissioner Lewin and, in particular, the decision of 30 October, 2000 which declined to reopen the proceedings that had been before the Commissioner in terms of termination of the bargaining period and there is a question of the competence of that appeal and there is the question of whether that appeal ought to be upheld.

PN26

Secondly, there is an appeal against the orders of the Commissioner, that is, matter No 224/2001 which is out of time and there is, therefore, an application before this bench that that appeal ought to be heard and determined, notwithstanding the fact that it is out of time, so there is an application for extension of time in relation to that matter. And, thirdly, there is the matter that Mr Green has dealt with, the application to have an arbitration following the termination period. That is matter number 34695 of 2000. So there are those three matters.

PN27

Now, I must say, if the Commission pleases, it is not crystal clear to me or to my clients just how far the Commission intends to proceed with those matters today. The matters, of course, have all been filed, but the activating process in terms of bringing the matter on before the Full Bench seems to be the letter of Minter Ellison dated 20 December, 2000 which respectfully requests a directions hearing to be listed so that those matters could be programmed for hearing as soon as possible.

PN28

Now, I know that the matters have been listed for hearing, but whether all that can be done today is directions or whether something further can be done is a matter that we are not particularly informed about. Although, may I say, that from my own part I am concerned to co-operate with the Commission so far as I am able to do so and I am not here in an obstructive role. But nonetheless, there is some ambiguity, if I can say so with respect, as to precisely what is to occur today.

PN29

SENIOR DEPUTY PRESIDENT POLITES: Well, the bench had in mind, I think, going as far as we could in relation to the two appeals today and simply programming the MX for another day.

PN30

MR SHAW: I understand that, your Honour. In relation to appeal number 2, if the bench were to grant an extension of time to enable that out of time appeal to be progressed, then it is, as I understand it, common ground between the parties that that appeal could not be argued today. It is quite a complex matter and there are all kinds of detailed matters that need to be argued and there has been discussion between the representatives of both sides, so I don't think there is any issue that that matter could be progressed today, certainly to conclusion. In relation to appeal number one, well, we can certainly put our position and argue that appeal.

PN31

SENIOR DEPUTY PRESIDENT POLITES: Is there any overlap in the material between appeals one and two, or any substantial overlap?

PN32

MR SHAW: Well, there may be some overlapping of the materials on appeal, although the first appeal is essentially a complaint about the Commissioner declining to reopen the matter upon fresh material being put to him or the assertion that there was fresh material available, it ought to have motivated him to reopen the matter. The second appeal is essentially an attack on the order saying that there was no jurisdictional basis for the order to be made, given the provisions of the Act, particularly section 170MW and arguments about whether there was a paid rates award applicable to the kind of employees which seems to have become a quite rarefied area of juris prudence in this area these days. And whether there was any reasonable prospect of agreement and those kind of issues.

PN33

So that in a sense the issues are separate, but the materials might overlap at least in terms of formal documentation and the like.

PN34

SENIOR DEPUTY PRESIDENT POLITES: In terms of expeditious utilisation of the time, is it appropriate to deal with the first, if I can call it the first appeal, and the application for leave out of time today?

PN35

MR SHAW: Your Honour, we do not have any problems about that and we have prepared ourselves to do that.

PN36

SENIOR DEPUTY PRESIDENT POLITES: Yes, does anybody else have any problem with that? And, Mr Green, if you can at least be around after lunch, we will hear what Mr Shaw has to say on the basis that the other matters are unsuccessful from his point of view about the programming of the MX matter.

PN37

MR GREEN: Yes, your Honour.

PN38

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN39

MR SHAW: If the Commission pleases, may I then refer to what I will call appeal number one.

PN40

SENIOR DEPUTY PRESIDENT POLITES: I think if you use that terminology, we will all understand what you mean.

PN41

MR SHAW: Yes. That is number 38923 of 2000 and say that that appeal is, in substance, against the procedural decision or order of Commissioner Lewin of 30 October, 2000 in relation to the Commissioner's refusal to reopen or to decline to exercise discretionary powers under section 111(1)(g) as he was requested to do, but consequentially the appeal also attacks the decision pursuant to section 170MW of 2 November, 2000 because we say the second decision is effectively tainted by the procedural and legal errors attended or attaching to the first decision of the Commissioner.

PN42

So that if it were wrong and contrary to procedural fairness to decline to reopen the matter on 30 October, 2000 we say that the subsequent order would be void because of that earlier error. We say that there is a lack of procedural fairness because there is a failure to consider, in substance, the points raised by the CFMEU pursuant to section 111(1)(g) of the Workplace Relations Act and we say also that it is relevant to note that no reasons were given by the Commissioner for his failure to reopen the matter or relist the matter for directions hearings as requested or to otherwise exercise a discretion pursuant to section 111(1)(g) of the Act.

PN43

Now, I think what the bench needs to address at the outset, if I may say so, is the post reserve decision correspondence. And all of this is to be found in the affidavit of Mr Bant, solicitor for the CFMEU, and it is a - it is the affidavit of 3 November, 2000. Your Honours and Mr Commissioner, may I say that a number of the exhibits to Mr Bant's affidavit are the subject of orders from the Supreme Court of Victoria about confidentiality, as I understand it, and there was some proceeding that I am not entirely familiar with in the Supreme Court about whether those documents were unlawfully obtained and so on, but I understand from my learned friend that there is no point about that.

PN44

I do understand that the orders of the Supreme Court were varied so as to enable those documents to be referred to and dealt with in proceedings before this Commission. So that appears to be the case. I am just a little cautious and I just ask my learned friend if I do in any way step over the mark of those orders, that he lets me - now, Mr - if I can go to Mr Bant's affidavit of 3 November, 2000 he says that he is a solicitor with Slater and Gordon and he has got the care and conduct of this matter:

PN45

Save and for where otherwise so stated, I make this affidavit from my own information and belief, including by reason of my participation in the conduct of proceedings ...(reads)... by collective bargaining and agreement.

PN46

And reference is made to particular provisions of the agreement. Now, your Honours and Mr Commissioner, in the original copy of that affidavit I had, paragraphs 7 to 9 were missing, but I assume the copies that the bench have include those paragraphs.

PN47

SENIOR DEPUTY PRESIDENT POLITES: Well, certainly there are paragraphs with those numbers against them, Mr Shaw.

PN48

MR SHAW: Yes, this again harks back to the orders made by the Supreme Court. So I assume, subject to any objection, I can read those paragraphs 7 to 9:

PN49

I am informed by the CFMEU that on or about 23 October 2000 the union was provided with certain information ...(reads)...my firm was instructed to consider the material and advise as to its ramifications. I took the view that the documents were relevant to the proceedings before Commissioner Lewin.

PN50

SENIOR DEPUTY PRESIDENT POLITES: Would anybody else who has a mobile phone in the court, please make sure it is turned off now.

PN51

MR SHAW: I plead innocent:

PN52

I took the view that the documents were relevant to the proceedings before Commissioner Lewin. Because of the concern I had, I held that a decision upon Yallourn Energy's applications may well be imminent. I wrote to the Commissioner seeking time to consider the material and foreshadowing that my clients might seek to re-open the case in the proceedings.

PN53

Now, if the Commission pleases, rather than going to the summary of that correspondence in the affidavit of the instructing solicitor, I think I should ask the members of the bench to look at the actual correspondence, which is exhibit APB3 to that affidavit, and I will go through as quickly as I can that correspondence. I am told it is tab 5 in the volume as filed.

[12noon]

PN54

If one looks at that exhibit one sees what I would call the post reserved decision correspondence. 24 October 2000, Slater and Gordon writes to the Associate to the Commissioner saying that they act for the CFMEU:

PN55

I have instructions to make an urgent application to the Commission. The application would need to be made before the decision is handed down. If the handing down of a decision is imminent -

PN56

and there is some controversy about the spelling of that word, as appears in the later correspondence -

PN57

my client's application would therefore need to be heard as soon as possible, and I would request that the matter be listed for mention at lunchtime tomorrow. Our counsel Mr Bromberg is not available at any other time tomorrow.

PN58

It is good to see the Melbourne Bar is busy in these matters:

PN59

If a decision is not likely to be handed down imminently, I request that this matter be listed for mention at the Commission's earliest convenience, but by Monday 30 October 2000.

PN60

SENIOR DEPUTY PRESIDENT POLITES: At least the spell check is consistently wrong, isn't it?

PN61

MR SHAW: Consistency is the virtue of the new technology, your Honour. And Mr Bant writes to the solicitor from Minter Ellison, Mr West, and encloses copies of that correspondence, and says that he does not have any further instructions in relation to the matters in that letter at that time. That correspondence seems to go for a few pages.

PN62

Then there is a letter from Minter Ellison to the Associate to the Commissioner, and that is dated 24 October 2000. Mr West of Minter Ellison writes to the Associate to the Commissioner, and he refers to the letter from the CFMEUs solicitors and says:

PN63

Upon receipt of the letter and after discussions with me, Mr McDonald of counsel spoke with Mr Bromberg, counsel for the CFMEU, to ascertain the nature of the application foreshadowed in the letter ...(reads)... A copy of this facsimile is enclosed.

PN64

That seems to be the kind of thing that solicitors do, if the Commission pleases:

PN65

With the hearing of our client's application in the above matter having been concluded and a decision been reserved, there can be no basis for the urgent listing sought by the CFMEU ...(reads)... in accordance with the rules and with proper notice to us.

PN66

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Shaw, there is no evidence as to the conversation between the two solicitors in the affidavit, as I read it, is there?

PN67

MR SHAW: No, I do not believe there is, your Honour. No. And perhaps that is in accordance with ordinary professional courtesy that one would not normally put on affidavit that conversation.

PN68

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. Well, I raise that in the context of the letter speaking of what occurred between the solicitors.

PN69

MR SHAW: Yes. Well, I am content to take the assertions in the correspondence as they stand. Then the Commissioner himself wrote back to the solicitor, saying:

PN70

The decision in this matter is not imminent. It may be imminent, but nevertheless to consider listing any application in this matter I would first need to be apprised of its nature.

PN71

Then by letter of 25 October 2000, Slater and Gordon wrote to the Commissioner's Associate to acknowledge receipt of the Commissioner's reply, and, as the solicitor says:

PN72

I wrote to clarify the situation.

PN73

He says:

PN74

We received yesterday instructions from our client in relation to a new and, on the face of it, dramatic aspect of the matter which has been heard and in relation to which the Commission's decision is reserved ...(reads)... If the Commission wishes to list our immediate application, Mr Bromberg would be available at any time until 3 pm today -

PN75

and so on. Then the next letter is a Minter Ellison letter of 25 October 2000 to the Associate to the Commissioner, where the firm says:

PN76

We refer to the letter from the solicitors for the CFMEU dated 25 October. It is our respectful submission that Commissioner Lewin should not defer handing down his decision in this matter nor entertain any application ...(reads)... may obtain instructions to seek to re-open the case.

PN77

Then there is a letter from the Commissioner to the solicitors for the CFMEU dated 25 October 2000 where the Commissioner says:

PN78

I would not want any silence on my part to give rise to any misunderstanding in relation to your facsimile of today ...(reads)... is something on which I cannot comment.

PN79

Then Slater and Gordon on 26 October 2000 write to the Commissioner referring to earlier correspondence, and says:

PN80

My clients the CFMEU and the ASU now hereby make the following applications ...(reads)... and do not affect the determination of jurisdictional points which the Commission has reserved.

PN81

Then next is the letter from the Commissioner. It is dated 26 October 2000, saying:

PN82

I have your letter by facsimile by noon today. In order to list the matter for the purpose of considering the re-opening of the proceedings I would need you to file some evidentiary material ...(reads)... are developing are capable of proof.

PN83

And then Slater and Gordon by letter of 26 October refers to that facsimile and says:

PN84

In the time available and given your request for a response today I have not had a full opportunity to put my client's position. However, I enclose the following documents which my clients assert to be documents of Yallourn Energy ...(reads)... can be addressed. I look forward to your response.

PN85

And then there is a letter sending off to Minter Ellison and Mr West of that firm, those documents which were sent to Commissioner Lewin. Then by letter of 26 October 2000 Minter Ellison sent a letter to Slater and Gordon referring to their letter to the Commissioner dated 26 October 2000 and the documents enclosed therewith and Minter Ellison said:

PN86

We're instructed that none of these documents express the position of Yallourn Energy in particular the documents related to the mine plan ...(reads)... and raise any objections to the material being provided.

PN87

Then there is the letter from Slater and Gordon dated 27 October 2000 directed to the Commissioner's associate saying this:

PN88

I understand that due to the late receipt of the letter and documents couriered to you yesterday the Commission may not yet have considered these materials. ...(reads)... which may be available in relation to such a decision.

PN89

And he says that counsel is available on short notice. Then there is - the next letter I have is that of 27 October 2000, again to the Commissioner's associate saying:

PN90

We received last night a letter from Minter Ellison in relation to the matters raised in our recent correspondence with you. In our view it is clearly inappropriate and inadequate for these issues to be dealt with in correspondence ...(reads)... in order that all arguments can be fully ventilated.

PN91

Now, if the Commission pleases, may I respectfully adopt that as my submission and to say that the case did call out for a relisting and that the process of the exchange of correspondence was unsatisfactory and did not accord procedural fairness to the CFMEU. There were disputed questions of fact, disputed documents, questions about the provenance of those documents, questions as to the relevance of those documents to the proceedings.

PN92

In my respectful submission, and I do have great respect for the Commission at first instance, those matters ought to have been the subject of a hearing in order to give procedural fairness to all parties really, but particularly the party propounding the idea that the matter ought to have been reopened. It may have been that on inspection the Commissioner might have found that the documents were not relevant to the proceedings, although we would contend to the contrary.

PN93

It might have been that the Commissioner would hold, as a matter of discretion, that there was justification for reopening the proceedings, although that was certainly not obvious on the state of the record when it was asserted that dramatic new information was available that would have impacted upon the proceedings at first instance. But this, with respect, rather unseemly exchange of letters to and fro between the Commission and the solicitors acting for both parties was, we would submit, plainly unsatisfactory and does not accord with the standards of procedural fairness that find this Commission in its operations.

PN94

It is difficult to see how there would have been any prejudice to the parties by having an open hearing and a debate about these matters. One appreciates of course that the Commission has limited resources and is under time constraints, that has to be accepted. But nonetheless here is a Tribunal that is faced with an application for reopening prima facie with some substance to it and yet declines to do so. So as I have said I adopt the wording of the letter from Slater and Gordon dated 27 October 2000 as my submission and would argue that that amounts to a breach of procedural fairness in the circumstances of the case.

PN95

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Shaw, could I just interrupt you there for a moment.

PN96

MR SHAW: Certainly, your Honour.

PN97

SENIOR DEPUTY PRESIDENT KAUFMAN: On 26 October Commissioner Lewin wrote to your instructing solicitors saying that before he would consider reopening he would require that there be some documentary evidence established to support a prima facie case, if I could summarise his letter.

PN98

MR SHAW: Yes.

PN99

SENIOR DEPUTY PRESIDENT KAUFMAN: By the 27th, at the time that you are now speaking, there was some material before the Commissioner, as I understand it, but there was no explanation as to its relevance or why that warranted reopening, was there?

PN100

MR SHAW: There were the documents themselves. There was the request for a hearing or at least a directions hearing and there was the application pursuant to section 111(1)(g) and specified paragraphs or sub-clauses thereof which my client said were relevant to the proceedings. It is true that there was no elaborate written submission arguing that the materials were relevant or should fundamentally change the course of events, but that was because what was sought was the ordinary procedural course, namely a hearing. We submit we complied in any reasonable way with the Commissioner's requests.

PN101

SENIOR DEPUTY PRESIDENT KAUFMAN: So is it your submission that your clients have put material to the Commissioner that would satisfy him that there was a prima facie case to reopen?

PN102

MR SHAW: Yes, we would say that or at the very least have a directions hearing or some procedural hearing whereby the admissibility and/or relevance of those documents could be debated. We do say that. But what occurred was without any relisting or hearing or real opportunity for debate, on 30 October 2000 the Commissioner wrote to the solicitors for the CFMEU saying this:

PN103

I refer to recent correspondence by facsimile concerning your application to reopen this matter. In the circumstances after considering your application I have decided against doing so. I intend to issue my decision in the matter on 2 November 2000.

PN104

Now, your Honours and Mr Commissioner, no reason is given there. A rejection of the reopening application, a rejection of the applications made pursuant to section 111(1)(g) without a hearing, without debate, without the ordinary processes of the Commission and without any reasonable justification for that procedural course being taken, I respectfully submit an unusual approach and I need to go further and say that it is an approach in breach of procedural fairness.

[12.25pm]

PN105

One can speculate as to what might have motivated the Commissioner. He did have a hard fought hearing over seven days, I accept that. Witnesses were examined and cross-examined. Evidentiary material was produced, but nonetheless one party to the proceeding asserted that we have got new material. They asserted that it was not material available to us at the time of the litigation, it was material that came into our hands subsequently, and we want to agitate the relevance and the significance of that material for the proceeding.

PN106

Prima facie, one would think, and perhaps more than that, that that would warrant a re-opening and at least a hearing however brief, to determine whether there was justification for that proceeding to be re-opened in all the circumstances of the matter. And I think the final document the Bench has in that particular exhibit of the solicitor's affidavit, is the notice of listing for decision of the matter at noon on 2 November 2000.

PN107

Now, if the Commission pleases, may I - first of all I believe we have a bundle of authorities here. Could we hand up three copies of the authorities.

PN108

SENIOR DEPUTY PRESIDENT POLITES: Yes, by all means.

PN109

MR SHAW: And give our opponents a copy of those authorities.

MFI #1 BOOK CONTAINING NOTICE OF APPEAL, AFFIDAVIT OF MR BANT AND ANNEXURE, IN C NO 34695 OF 2000

PN110

MR SHAW: Thank you, your Honour.

MFI #2 BUNDLE OF AUTHORITIES

PN111

MR SHAW: Yes, thank you, your Honour. Now, one question, if the Commission pleases, is whether, despite all that I have said about the complaints about the procedure at first instance is whether we have a competent appeal before the Bench and we submit that we do. It is true, if the Commission pleases, that those of us, and perhaps I include one or two members of the Bench, those of us who grew up in an earlier era had the mind set that one could only appeal in this jurisdiction against an order or an award of the Commission.

PN112

That complacent assumption was shattered by The Queen and Ludeke ex parte the Customs Officers Association in the High Court in which I played a part that I am not boasting about and it does seem that there are appellant remedies available to parties, agreed by procedural decisions in the course of proceedings before the Commission pursuant to section 45 of the Workplace Relations Act.

PN113

I didn't actually - and in this case we note that section 45 of the Act specifically provides by section 45(1)(c) for an appeal against a decision of the Commission not to make an award or order and also a refusal or failure of a member of the Commission to exercise jurisdiction pursuant to section 45(1)(g). Now, here there was an application before the Commission pursuant to section 111(1)(g) to the effect that it was said that:

PN114

The Commission should dismiss a matter, or part of a matter, or refrain from further hearing, or from determining the industrial dispute, or part of the industrial dispute, if it appears that -

PN115

and if I can go to 111(1)(g)(iv) -

PN116

a party to the industrial dispute is engaging in conduct that in the Commission's opinion is hindering the settlement of the industrial dispute or another industrial dispute, or (v) that a party to the industrial dispute has breached an award or order of the Commission or a certified agreement.

PN117

Now what, as I understand it, the CFMEU were saying, is that the new documents showed a covert conduct by the employer that they were seeking, during the concurrency of the proceedings, to fundamentally change the nature of the work. That they were seeking to, in effect, contract out the work at the coal mine adjacent to the energy generation, or electricity generation plant, and that they were seeking to have a program of redundancy. And so one can't take it any further than that because there was only the prima facie view expressed by the CFMEU that they wanted to agitate before the Commission.

PN118

And it was - the theory was put forward that the closure of the bargaining period as applied for before Commissioner Lewin was designed to preclude industrial action so as to combat or defeat those plans. That was the hypothesis put forward by the union, and whether that be right or wrong it was a hypothesis that was never able to be tested because there were never any hearings before Commissioner Lewin which would have enabled that matter to be dealt with and adjudicated upon in an impartial way.

PN119

There in fact - if the Commission pleases, whilst there are documents that were available to the CFMEU it is also true that Mr Bandt's affidavit pointed to press reports which indicated an intention to that effect on the part of the employer and it is - if I can refer to paragraph 26, or 25 and 26 of Mr Bandt's affidavit, he refers to a number of articles appearing in The Age newspaper referring to this alternative mine plan and he refers to comments attributed to representatives of Yallourn Energy in relation to that, or similar plans. And in paragraph 26 he quotes from an article in the newspaper, attributed to the second respondent, to this effect:

PN120

Yallourn chief executive, Mark Smith, said yesterday a new mine plan involving new technology ...(reads)... the Board found that part of it unacceptable, he said.

PN121

So that may be, if the Commission pleases, an explanation for what is said in the Minter Ellison letter, that the particular proposals contained in the documents were not accepted by the Board. If that assertion published in the press is right then it would seem that the new mine plan was accepted in part, or perhaps in substance, but without the idea of compulsory redundancy being associated with it.

PN122

Nonetheless, it is easy to conclude that that proposition, as documented, would be of grave concern to the union and would be of significance to the proceedings, or at least of arguable relevance to the proceedings so as to warrant the Commissioner reopening the matter and hearing argument about that particular issue and about the particular hypothesis that really, what the company was about was closing off the option of industrial action to oppose these restructuring plans by the company.

PN123

If I may, in terms of these documents which are exhibited to the affidavit, may I also refer to page 102, which is an ATR strategy meeting, or action plan, which also indicates the tactics being adopted by the employer, which included the tactic of progressing to arbitration as quickly as possible and "do not negotiate during the conciliation process." Views the section 170MH application as a Driver Awards arbitration. That is page 103. The idea of not negotiating during the conciliation process is, if the Commission pleases, somewhat oxymoronic.

PN124

But, nonetheless, it appears in the company documents as being part of the strategy. In any event, I have been diverted by - from the argument, but we have in our submission a valid appeal before the Commission by reason of the refusal to grant the application for reopening and the refusal or failure of the Commission to hear or determine the section 111(1)(g) applications, which in our submission ground the appeal.

PN125

I did not propose to actually take your Honours to The Queen and Ludeke ex parte Customs Officers Association [1985] HCA 31; (1985) 155 CLR 513, but that decision was picked up an applied, it was picked up and applied by a Full Bench of the Commission or its predecessor in Building Workers Industrial Union v G.J. James Glass and Aluminium Pty Limited, do members of the bench have that, at 35 IR 229 Coldham J, Deputy President MacBean, Commissioner Griffin, tab 4. And the Full Bench recounted the procedural circumstances of that case at page 230, in the first complete paragraph on that page they record that:

PN126

When called upon, the BWIU representative indicated that he didn't know of a listing of a proceedings ...(reads)... reserved to the BWIU and the State Awards.

PN127

Then at page 231, the Full Bench referred to The Queen and Ludeke, saying:

PN128

Until Queen and Ludeke a view was held that the awards, or orders of the Commission which were open ...(reads)... thereby are properly the subject matter for appeal.

PN129

Now, we say, if the Commission pleases, by parity of reasoning, the same applies here. The Commissioner had not published his decision. The Commission was not functus officio. The Commission was still enlivened with jurisdiction and could have, and we submit should have, entertained an application for relisting and consideration of the points arising pursuant to section 111(1)(g) of the Act. And then at - - -

PN130

SENIOR DEPUTY PRESIDENT POLITES: But he did indicate, didn't he, Mr Shaw, he rejected it?

PN131

MR SHAW: He entertained it by correspondence. He rejected the idea that there should be a hearing and he did so without reasons. But I accept the fact that he adjudicated on it, that is certainly true, your Honour. Now, about the middle of page 231, it said:

PN132

Having regard to the judgment of the High Court, we are of the view that the refusal of Commissioner Connell ...(reads)... under section 35 of the old Act.

PN133

Then the bottom paragraph, on page 231:

PN134

We now must consider the main thrust of the appeal was the BWIU representative given adequate ...(reads)... and the grievance was set aside.

PN135

Now, if the Commission pleases, the only other case I wanted to refer to in this aspect of my argument is re Media Entertainment and Arts Alliance ex parte Arnel A-r-n-e-l [1994] HCA 1; (1994) 179 CLR 84 and that is at tab 8 of the collection of materials that the Commission has. I am labouring under the old fashioned disadvantage of having the CLR report but hopefully I can shortly put the effect of this judgment of the High Court to the bench. What happened in this case is, member of the Bench may well know better than I do, is that there was an agreement reached between the MEAA v Hoyts, but a group of individual employees, who are apparently young employees who would be the subject of junior rates, objected to that agreement and said, look, we weren't heard.

PN136

SENIOR DEPUTY PRESIDENT POLITES: It was a proposed award action.

PN137

MR SHAW: Proposed award, I am sorry, your Honour, yes.

PN138

SENIOR DEPUTY PRESIDENT POLITES: Not by agreement, I would think.

PN139

MR SHAW: Not by agreement, yes sir. I see the Bench is well ahead of me on this one. In any event, it was apparently after the decision was announced by the Commission that the group of junior employees came along and said, look, want to be heard about these differential rates, and we haven't been given procedural justice. The High Court, by a majority held that the employees application to be heard amounted to an application to intervene, which the Commission was bound to hear and determine and the Commissioner's decision not to refrain from making the award amounted to a failure to hear and determine the application and was in breach of procedural fairness. I say by way of aside that the High Court took the opportunity to somewhat confine, or perhaps explain the decision in Queen and Ludeke by saying that when in Queen and Ludeke they said:

PN140

That a person whose rights will be directly affected by an order made by the Commission must be given ...(reads)... indirectly and consequentially.

PN141

But that is not - that qualification is not relevant here because we have here an application by a registered organisation, which is a party to the proceedings, and something I should have mentioned earlier, less there be any doubt that section 111(1)(g) is applicable to the proceedings that any such doubt is precluded by section 111, subsection 2, which says that:

PN142

Unless the context otherwise requires, a reference in this section to an industrial dispute includes a reference to any other proceeding before the Commission.

PN143

So that - - -

PN144

SENIOR DEPUTY PRESIDENT POLITES: Only part of section 111(1)(g) is applicable, Mr Shaw.

PN145

MR SHAW: Yes.

PN146

SENIOR DEPUTY PRESIDENT POLITES: Because of the provisions in section 170 something or other that confined its operation in relation to division - in relation to part VIA. But the relevant parts are applicable.

PN147

MR SHAW: Thank you, your Honour, and I should have mentioned the exception of section 111(1)(aa) as well when I referred to section 111, subsection 2 - yes, 170LA(3). But, as your Honour the presiding judge says, it doesn't affect this matter. This Act used to be simpler, your Honour.

PN148

SENIOR DEPUTY PRESIDENT POLITES: Yes. It is expressed in plain English, Mr Shaw.

PN149

MR SHAW: Is that an appropriate time for an adjournment.

PN150

SENIOR DEPUTY PRESIDENT POLITES: Yes, we will adjourn until 2.15.

LUNCHEON ADJOURNMENT [12.48pm]

RESUMED [2.16pm]

PN151

SENIOR DEPUTY PRESIDENT POLITES: Yes, Mr Shaw?

PN152

MR SHAW: If the Commission pleases, in relation to appeal number 1, I was dealing before the luncheon adjournment with re Media Entertainment and Arts Alliance ex parte Arnel, 179 CLR page 84 and I would like to just take the bench to a few particular passages in that judgment if I might bearing in mind that I think the members of the bench have a version from the internet at tab 8 of the folder. I will see if I can coordinate that.

PN153

First of all, if I could just refer to paragraph 11 of the decision which records that after the decision was announced some 420 individual employees wrote to the presiding member of the full bench indicating the satisfaction with the award. Their letters contained the following request which is then quoted including a reference to section 111(1)(g) of the Act and then at paragraph 13 of the judgment of the majority members of the High Court there is reference to a Full Bench of the Commission having issued a direction, and that is quoted, paragraph 16 in the judgment, it said:

PN154

On 19 May the Full Bench decided without any further hearing that in all the circumstances it was not appropriate to refrain from making an award or to hear any further argument on the matters raised in the letters ...(reads)... and apart from the unions.

PN155

Then at paragraph 21 it said that:

PN156

Ordinarily an application for leave to intervene to argue some matter on which a decision has already been given will enjoy scant prospect of success. ...(reads)... that would merit serious consideration.

PN157

Now, your Honours and Mr Commissioner, I accept that that is different from this case, but it does show the sensitivity to the requirements of procedural fairness in our submission and we would also note in the preceding paragraph, I think paragraph 20, that in fact it was considered by the High Court that there was no application as such under section 111(1)(g) of the Act whereas we would say here there was a substantive application under that provision, and of course we are dealing here with a party to the proceedings which has sought to reopen the proceedings and adduce further material in relation to those proceedings. If I could just read the last sentence of paragraph 21:

PN158

But whatever the merits their applications to intervene in proceedings which were still on foot and that application was necessarily involved in their letters requesting a hearing was one the Commission was bound to hear and determine.

PN159

Paragraph 22 I refer to. Paragraph 23 I refer to, it was said that, in particular paragraph 23:

PN160

It is clear that the Full Bench decision was based on the view that the employees were attempting to bring about a situation in which they could put fresh argument with respect to the matters that had already been argued. However there was no specific consideration of whether that was the case.

PN161

Now, here - I mean, in that case, your Honours and Mr Commissioner, there had been a decision, and it was a case of trying to reopen a decision here. There was no decision; the matter was alive and not the subject of an adjudication by a member of the Commission. There was no question of the Commission being functus officio and therefore we would say that the position was a fortiori to Arnel's case which we would submit is otherwise in point and otherwise shows that the discretion at first instance miscarried and ought to be reopened. I refer also to paragraphs 24 and 25 of the decision of the High Court and of course other members of the Court, particularly Dean J dissented.

PN162

Now, if the Commission pleases, the next point I would like to come to is a point I have already flagged and that is that there were no reasons given by the decision of 30 October 2000 for declining to reopen the matter or otherwise dismiss the applications made pursuant to section 111(1)(g). For those of us who grew up in New South Wales the classical case on that issue is Pettit and Dunkley which says, and if I can just find a reference to that, yes, Pettit and Dunkley 1971 1 NSW LR 376 at 388, says that:

PN163

Where a decision is potentially appealable decision, then reasons must be given.

PN164

And that was referred to and applied in Osmond v The Public Service Board in the High Court. That is, (1986) 159 CLR 656, particularly at 667 where the High Court said in relation to Osmond that where there was no right of appeal against a decision, there was no obligation to give reasons. That was a purely administrative decision and the High Court said that there was not an obligation in that and that has been the subject of subsequent academic controversy. But the High Court certainly did not deny, and I think in effect affirmed Pettit and Dunkley where there was an appealable decision, or potentially appealable decision, then it was an adjunct of the judicial process either in a Court or a Tribunal to provide reasons for the decision so that people can consider their appeal rights.

PN165

Now we say there are no reasons for decision given here and that that of itself is a factor that shows that the discretion in the decision making process miscarried. All of those judgments about reasons for decision were considered in the Federal Court in the City of Wanneroo v Holmes in the judgment of French J of [1989] FCA 369; (1989) 30 IR 362. Now, that is contained in the bundle of decisions that we have provided to the Bench at tab 7 of that bundle and again I am struggling a little to try to reconcile the internet judgments with the decision as reported in the industrial reports, but I believe I can do so.

PN166

SENIOR DEPUTY PRESIDENT POLITES: They have paragraph numbers, at least the internet one does.

PN167

MR SHAW: They do, these ones do, yes, that is right. Paragraph 32, which is at page 14 and perhaps we should refer to page references but paragraph 32:

PN168

It is well established that a failure by a judge or magistrate to give any or adequate reasons for a decision can amount to an error of law. ...(reads)... members of the public to ascertain the basis upon which like cases will probably be decided in the future.

PN169

Now, I would also refer to the residue of that paragraph but will not trouble the Bench by reading it. We say, if the Commission pleases, that plainly the proceedings should have been called on in all of the circumstances for debate and discussion. If the documents did not represent the employer's policy in whole or in part or if the documents were irrelevant to the exercise of a discretion under section 170MW, then that could have been determined in the course of those proceedings. We would say it is difficult to see why those documents could not be said to have been relevant to the exercise of discretion under the section of the Act, or if it were said that the documents were unlawfully obtained then that again could have been the subject of debate and if necessary evidence.

PN170

We would submit that leave to appeal should be granted to the CFMEU in this case, that because there is the requisite linkage with the public interest, we would say that the issues go to jurisdiction. They concern natural justice and that the product of the process which we say is flawed was a nullity. Secondly, we say there are significant questions of procedural fairness, in particular new material which might have fundamentally altered the course of events and the resulting decision. And thirdly, we would say that the importance of the Yallourn industrial dispute generally in the public interest and the importance of it being dealt with by due process are factors which would prompt the Commission to give leave to appeal.

PN171

Now, may I just go back to the notice of appeal in this case and attempt to, very shortly, crystallise the reasons why we say that leave to appeal should be given and that the appeal ought to be upheld. First of all, ground 1, it is said that the Commissioner erred in refusing or failing to exercise jurisdiction by dismissing applications made by the CFMEU and the ASU to reopen their cases in the proceeding.

PN172

We submit that on 26 - I am sorry, if the Commission pleases, I have got an incorrect date in my notes here. I will come back to the precise date but we certainly say that the CFMEU did formally make application by way of a solicitor's letter that they should be allowed to reopen their case in the proceeding and that that letter explained that the unions were in possession of new evidence and set out an explanation as to the impact of that new evidence.

PN173

Next, the CFMEU and the ASU reiterated their desire to be heard in solicitor's letters of 26, 27 and 28 October. All of these letters are contained in Exhibit APB3, to which I have referred earlier this morning. Thirdly, the proceeding before Commissioner Lewin was an application for the termination of bargaining periods on the grounds that there was no reasonable prospect of the negotiating parties reaching an agreement. The new evidence, we say, was highly relevant to the consideration of that question. Extensive evidence had already been adduced which went to the bargaining periods of the parties and the matters which were at issue during the bargaining period.

PN174

Fourthly, Commissioner Lewin, in his letter of 30 October, stated that he had considered the application for reopening and he explicitly decided to refuse that application. He said that he had considered the application and then decided it, but without hearing in terms of any oral arguments, the CFMEU or the ASU, despite their repeated requests that they be heard on that matter.

PN175

Fifthly, it was not open to the Commission to reject the application without hearing the parties on it and the Commission's failure to do so was a denial of procedural fairness and natural justice and constituted a jurisdictional error. Sixthly, in re Arnel, the High Court held that an application to intervene, whatever the merits or lack thereof, was one which the Commission was bound to hear and determine.

PN176

Seventhly, in that case a Full Bench of the Commission had been notified that some employees wished to appear to make submissions and applications pursuant to section 111(1)(g). The Bench ordered them to file outlines which occur. The outline included a request that they be heard in relation to the matters raised in the outline. The Full Bench subsequently decided without any further hearing that it would not hear from the employees further. As indicated the High Court considered that the Commission was in breach of requirements of procedural fairness in conducting itself in that way.

PN177

Next, in BWIU and G. James Glass and Aluminium Pty Limited, 32 IR 229, the BWIU appealed a refusal of an adjournment. The BWIU had sought and was granted intervention when first becoming aware of the proceedings before the Commission and then sought an adjournment apparently to consider its position and decide whether it would present evidence and/or make submissions.

PN178

A Full Bench held that the refusal of the adjournment in the circumstances of the case deprived the BWIU of the opportunity to present materials and make submissions and upheld the appeal. Next, the refusal to allow the application to reopen prevented the Commission from having regard to relevant material and led the Commission to fail to take into account relevant considerations. The Bench will bear in mind that the CFMEU foreshadowed that they had more material than they had in fact disclosed in the material provided to Commissioner Lewin, but contended that even on the basis of the material provided to Commissioner Lewin there was a real and pressing need to reopen the proceedings.

PN179

If I can refer to the second ground of appeal, namely that the Commission erred in purporting to exercise jurisdiction by making its decision and directions on 2 November in circumstances where he had refused or failed to hear and determine the applications that we have referred to. We say that that decision was tainted by the Commission's refusal to allow the CFMEU and the ASU to reopen their case and we refer to the earlier submissions that we have made in respect of ground 1.

PN180

Ground 3 says that the Commission erred in refusing or failing to exercise jurisdiction by refusing or failing to hear and determine applications made by the CFMEU and the ASU pursuant to sections 111(1)(g)(iv) and (v) of the Act and we say that the applications under that section were made in the solicitor's letter of 26 October. We say that the conduct of the employer that would enliven the provisions was at least in part outlined by the unions in that letter. The conduct was the alleged misleading of the Commission and the ulterior motive of the employer in pressing its application.

PN181

It is the hypothesis of the CFMEU that we sought to prove if we had been given the opportunity to do so that the employer conducted itself in negotiations over the matters in issue in the bargaining period and made the application for terminations of bargaining periods for the undisclosed purpose of obtaining relief from the Commission which would prevent the unions from taking protected industrial action to oppose the alternate mine plan when it became known to the employees.

PN182

We say that the employer's conduct in adopting that course and in not consulting and negotiating with the unions about the alternate mine plan was conduct of the requisite nature to sustain an application pursuant to section 111(1)(g). We say that the CFMEU and the ASU claim that the employer was in breach of the certified agreement to which it was a party in relation to the provisions requiring consultation, negotiation and agreement on changes in the work place.

PN183

The proceedings before Marshall J in the Federal Court in part involved allegations of breaches of the agreement and we say that those breaches or alleged breaches would have founded applications under the relevant provision of the Act. We say that the refusal to hear the application to reopen prevented the Commission from having regard to relevant material and led the Commission to fail to take into account relevant considerations.

PN184

Finally, if the Commission pleases, in relation to ground 4, it says that the Commission erred in purporting to exercise jurisdiction by making the decision and the directions on 2 November 2000 in the circumstances where the Commissioner had refused or failed to hear and determine the applications made by the CFMEU and the ASU pursuant to section 111(1)(g) of the Act and we submit that it was sufficiently apparent on the face of the solicitor's letter of 26 October 2000 that the CFMEU and the ASU had raised relevant considerations which had a potentially adverse effect on their interests and on the case. The Commissioner's failure to hear and determine the application was a failure to take into account relevant considerations.

PN185

If the Commission pleases, those are the submissions we want to put on, on what I will call appeal number 1.

PN186

SENIOR DEPUTY PRESIDENT POLITES: Thank you, Mr Shaw. Are there any submissions in - - -

PN187

MR HENDERSON: Your Honour, the ASU adopts and supports the submissions advanced on behalf of the CFMEU. We have nothing other to add.

PN188

SENIOR DEPUTY PRESIDENT POLITES: Thank you. Yes, Mr Green?

PN189

MR GREEN: Your Honour, the presiding member mentioned before lunch that you were disposed to deal with the MX matter some time this afternoon. I wonder whether this might be a convenient juncture to hear from our opponents about what I have proposed.

PN190

SENIOR DEPUTY PRESIDENT POLITES: It might, Mr Green. Mr Shaw, have you had the chance to obtain instructions on that matter?

PN191

MR SHAW: On the program of the arbitration - - -

PN192

SENIOR DEPUTY PRESIDENT POLITES: On the programming of - - -

PN193

MR SHAW: - - - well, I have had some talks with Mr Slevin who will conduct that arbitration if it arises. So yes, I have had preliminary instructions, your Honour.

PN194

SENIOR DEPUTY PRESIDENT POLITES: Perhaps you might like to give us the benefit of those instructions.

PN195

MR SHAW: Perhaps Mr Slevin could deal with it.

PN196

SENIOR DEPUTY PRESIDENT POLITES: Yes, by all means.

PN197

MR SLEVIN: Your Honours and Mr Commissioner, the CFMEU does not consent to the expedition application, if I can call it that. In summary we say that the request is onerous on it. But the timetable suggested by Mr Green would disadvantage us. In support of our opposition to the expedition of the matter might I say the only reason proffered seems to be some concern about the date, 2 May, it being the date specified in Commissioner Lewin's order that the unions may re-initiate or initiate anew, I think is probably a more accurate, bargaining period and the day on which the section 127 order expires.

PN198

We say that the reason proffered is no reason to expedite the arbitration and we say this, the bargaining periods were terminated under section 170MW(7), as the Bench would be aware. It was about the failure to reach agreement. That is substantially different if the argument and the emphasis on potential industrial action is the thrust of my friend's argument, and I understand it to be. That is, substantially different to circumstances where perhaps section 170MW(3), the protected industrial action was causing a threat to the economy and the like, was the reason for the termination of the agreement.

PN199

So my friend cannot claim in relation to the industrial action as being the cause of the termination of the bargaining period that has got us as far as we have gone. The question of the section 127 order again in outline - the section 127 order, just by way of background, related to one stoppage on 2 November.

[2.42pm]

PN200

If that order expires and there is some reason for a further order to be sought, it is of course available again to the employer to seek a further section 127 order, and so there is no prejudice to them in relation to the expiry of that order. Again, in relation to the initiation of a bargaining period, the same applies, that if a bargaining period is initiated and it seems for some reason under the Act there is reason to bring application to terminate that new bargaining period, then of course that is available to the Company as well. And so there is no prejudice, we say, in relation to those matters that would give rise to the application for expedition.

PN201

We also oppose, for a number of - perhaps not substantive, but we oppose the application because of the nature of the case itself. The case, should we get so far as to the section 170MX arbitration, is indeed a significant one, a significant case not simply for employees at Yallourn Energy, it is significant for the power industry in Victoria, given the nature of regulation at the other operations in the industry, and the findings that are currently of Commissioner Lewin that these operations are - or these employees are paid rates employees for the purposes of section 170MW(7).

PN202

It is important because it sets a precedent. The other power stations have certified agreements that are coming to an end. There will be negotiations, and section 170MW(7) will be available to those employees as well, and there is a real potential for other employers to take the same course. And as the case develops, and you have seen in some of the material in appeal number 1, it seems that there may well have been a deliberate strategy by Yallourn Energy to trigger section 170MW(7) and trigger the subsequent section 170MX arbitration.

PN203

And so there is precedent value for the industry in these proceedings, and indeed in the section 170MX that follows. Of course the case is significant as well for our members at Yallourn Energy, given that it is a comprehensive arbitration that is being sought. The exhibit G1 is a wholesale departure from the regulation currently applying. EB(3) which has been referred to in appeal number 1 - and the Bench now has available to it these documents - is annexed to the affidavit of Mr Bandt.

PN204

The Bench, simply by having a cursory glance at EB3, will see that it is indeed - and I don't think I can call it anything other than a prescriptive instrument - it deals in some detail in relation to the conditions of employment and the wages that apply at Yallourn Energy, in stark contract to the document you were handed this morning. So it is a wholesale departure, we characterise it, and consequently will require the Commission to embark upon a more than superficial exercise in considering the applications made. It is a very detailed exercise.

PN205

The nature of the case is also large and significant, in our submission, due to the requirements in the legislation itself under section 170MX(i) that implores the Commission - or requires the Commission indeed - to consider a number of factors, and they are wide-ranging factors and I will go to those in a moment, or perhaps I will go to them now; it is a significant time. Without being too laborious I might go through those factors set out in 170MX(5).

PN206

The first factor, being the matters that were at issue during the bargaining period, involves an exploration of what occurred during the bargaining process, an exploration of the documents, positions taken, matters put on the table, taken off the table, a consideration of what occurred during the bargaining process itself. B might be described as an amorphous requirement that the merits of the case be considered.

PN207

Certainly that will involve the merits, not only of the other requirements under section 170MX(5), but also the merits of each of the individual claims, and as I described to you we are talking about a significant departure from current regulation at this workplace, and so it is a case of considering each of the claims made and the merits of each of those particular claims.

PN208

It is not like some of the other 170MX arbitrations that have occurred in this place where only a number of issues were being considered. All issues are being considered, and that is raised through the Company's document and so it is something that was in a gift, in a sense, of the Company in making the broad-ranging application that they intend to. The interests of the negotiating parties and the public interest: certainly in this case, given the nature of this industry in this state, the public interest is an important factor.

PN209

They are public interest matters, and given what I have described as a precedent-setting case for the industry generally, we say that that exercise itself is a substantial exercise as well. In relation to how productivity might be improved in the business or part of the business concerned, no doubt that will be a factor that the Company will seek to rely on, as seems to be the case in these matters, but again that is something that is not something that can be done in a matter of a couple of hearing days, as it were.

PN210

We would be suggesting that site inspections would be appropriate, and certainly site inspections have been features of other similar arbitrations that our union has been involved with. But certainly it would be a matter that needs consideration, and we would be putting to the Bench at an appropriate time - and I am putting now if it is the appropriate time - that site inspections will be required in this arbitration.

PN211

The extent to which the conduct of the negotiating parties during the bargaining period was reasonable is an issue as well that you are directed to consider. The material you have seen in appeal number 1 gives a hint of the sorts of arguments that will be run, and certainly an indication that that is a factor that will be a live issue in the arbitration. I am not aware of any principles formulated by a Full Bench under paragraph (f) of that subsection.

PN212

You can see from the picture that I draw that this is not a simple matter, it is not going to be something that can be rushed through, as seems to be the intention of the Company. The question of expedition - and again if I can refer to appeal number 1 that you have heard this morning, albeit you have not heard from the employer. In the HR strategy document that is annexed to Mr Bandt's affidavit and appears at page 102 of the MFI1, there is a statement - and that document, I might remind the Bench, is dated 4 October - there is a statement arising from a HR meeting of the Company that progressed to arbitration as quickly as possible was an aspiration of the Company at that time, 4 October. This is a month before Commissioner Lewin's decision and orders.

PN213

It seems that the Company has an agenda, had an agenda prior to the bargaining period being terminated. That agenda was about expedition, about expedition to the completion of a section 170MX arbitration, and in making the application that they do today to expedite the MX arbitration, albeit they have only referred you to this one reason, and that is relied upon in Commissioner Lewin's orders.

PN214

SENIOR DEPUTY PRESIDENT POLITES: Mr Slevin, the Company has always had a - I can't pretend I don't know that the Company has always had an attitude of expedition. I mean they would before me in the middle of 1999 complaining that they couldn't get the unions to meet them to negotiate a replacement to EB3. What is surprising about them now pursuing expedition?

PN215

MR SLEVIN: Nothing surprising, your Honour, but they appeared before you in a different context in that it was within their power at that time to reach agreement as being a party to the negotiations. Now they come here to you and ask you to take up their cause of expedition, and we oppose it. And one of the grounds we oppose it on, your Honour, is that it is meeting an agenda, an agenda that hasn't been put to you frankly this morning, and it could have been put as frankly as your Honour has just put it by the Company. We have an agenda as well, and that is what I wish to press at this stage.

PN216

In relation to the expedition, as I said in my opening remarks, we say it would disadvantage us. We obviously don't have the resources that the Company has. We have already commenced our preparation for the MX arbitration. I don't have your Honour's long experience with this industry. I do have 15 lever arch folders in my office at the moment and - - -

PN217

SENIOR DEPUTY PRESIDENT POLITES: They are probably more use.

PN218

MR SLEVIN: Your Honour, and so there is a lot of work to be done, and we say that certainly the suggestion that within 10 days of receiving the Company's material we will somehow be able to put a case together that - - -

PN219

SENIOR DEPUTY PRESIDENT POLITES: Would you like to give us a guesstimate of how long you think it might take?

PN220

MR SLEVIN: I would like 12 weeks, your Honour; I will settle for 8, is sort of our bottom line, although we put to you in the first instance that the appeal should be heard and considered first, and be determined before programming occurs. We anticipate there will be arguments about documents. There have been 17 proceedings in 14 different matters before the Supreme Court and the Federal Court and this Commission over this dispute.

PN221

There has been - I described the documents that I have in my office which are the relevant documents, I am told, and there are - perhaps as any documents involved in those other proceedings. And the point I was making in relation to that is there has been work done, there are documents that can be marshalled, but we say that - and the parties are not precluded from continuing to prepare. We have started preparation. We will continue to prepare our case, but we say that so far as the timetable of the matter, we should wait till the appeals are resolved, for a formal timetable to be made.

PN222

That timetable can consider the passage of time to that date and the opportunity people have had to prepare. Again, the point I was making was in relation to controversy over documents. We believe there will be. We anticipate that summons will need to be issued, no doubt argued, and time to consider any documents arising from that process. We are happy to receive any material that the Company has prepared by the end of this week, and again those sorts of matters could be taken into account down the track when a timetable could be programmed for the finalisation of the matter. Unless there is anything else from the Bench, they are our submissions.

PN223

SENIOR DEPUTY PRESIDENT POLITES: Well, I will ask you this, Mr Slevin: are there any dates that you are aware of now within a reasonable time frame - and I am not specifying 6, 8 or any other number of weeks - which would not suit you? This is your first and only chance.

PN224

MR SLEVIN: I am exhorted to include Easter in my list of available dates. Your Honour, I think I have appeared before you enough for you to know that I am fairly flexible on those sorts of things.

PN225

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN226

MR SLEVIN: There isn't anything pressing that I can point to. We do have a preference though - and the 10 days we agree with - we have a preference for a break between the first and second weeks. I think it assists in - - -

PN227

SENIOR DEPUTY PRESIDENT POLITES: Thank you. Well, that is a matter we will need to take into consideration together with our own diaries. Thank you. Mr Green, is there anything you want to say?

PN228

MR GREEN: Just a couple of short points in reply, your Honours and Commissioner. Despite Mr Slevin's submissions, we submit that implicit in the history, including the recent history, time is of the essence. The scheme of the legislation contemplates that once the Commission is seized of an MX matter, particularly where it wears the conciliation aspect, the Commission will act with due expedition, and that has happened.

PN229

The fact is that on 18 January this year, his Honour, Vice President Ross made a finding that the negotiating parties have not settled the matters at issue during the bargaining period. His Honour found too that it is not likely that conciliation would result in matters being settled within a reasonable time. Five days after his Honour's finding, the MX matter was listed by the Commission, together with the appeal-related matters. That is consistent, we submit, with a proper understanding of the scheme of the relevant parts of the Act.

PN230

The Act also contemplates that the Commission will, whether it be on conciliation or arbitration, exercise powers of the kind it exercises under Part VI in regard to industrial disputes, and one of the things that one finds in Part VI for example is, in paragraph (t) of section 111(1), the Commission has the power to do all things consistent with an expeditious hearing and determination of the matter. So we rely upon those matters.

PN231

But may I also say to the Commission that EB(3) to which Mr Slevin referred, it expired on 10 September 1999, and in the scheme of things that is a long time ago. The history shows that attempts were made by Yallourn to get discussions under way well before that, many months. The Company does - we do agree with Mr Slevin to this extent - have an agenda. The agenda finds expression in exhibit G1. That will supply the focus, we submit, for the Company's case in support of its application for an award.

PN232

So we think in that context, if we may say with respect, it is prudent of Mr Slevin and those instructing him to have already commenced their preparation for the arbitration, and we encourage them to continue to do so. We say that is a prudent course. My friend did say it is not a simple matter. May we say this, we don't pretend that this is an easy matter for the Commission or the parties, but it will be our contention should the arbitration begin, that it is a simple matter.

PN233

We don't apprehend a voluminous case in support of the application. We contemplate that there will be two witnesses who will file witness statements by the end of this week and we will move heaven and earth subject to the wishes of the Commission to put in our material in reply once those against us have put their material in and we - say but the word and we shall do that. The true fact - the unstated premise here is that everyone knows, given that the course events have now run that there is, subject to the proper outcomes of the Commission, including these appeals, there is a certain inevitability attending the hearing and determination of this matter.

PN234

The parties and all of the parties have been fixed, as it were, with notice that in early this year, subject to the wishes of the Commission they are facing the sort of thing that we are urging upon the Commission. And may we say that in the light of what Mr Slevin has said this afternoon, we wouldn't shrink at all from the type of timetable that we indicated to the Bench at the outset this morning. May it please your Honours, Commissioner.

PN235

SENIOR DEPUTY PRESIDENT POLITES: Thank you, Mr Green.

PN236

MR GREEN: Can we also indicate, your Honours and Commissioner, that in response to the presiding member's question put to Mr Slevin, there are no dates that don't suit us.

PN237

SENIOR DEPUTY PRESIDENT POLITES: Thank you, Mr Green. Well, we will consider in relation to the programming of the MX matter everything that has now been put to us and we will give some directions in due course.

PN238

MR GREEN: May it please your Honour.

PN239

SENIOR DEPUTY PRESIDENT POLITES: That is of course subject to the disposition of these appeals.

PN240

MR GREEN: That is understood, your Honour.

PN241

SENIOR DEPUTY PRESIDENT POLITES: Yes. Yes, Mr McDonald.

PN242

MR McDONALD: Thank you, your Honour. Could I please hand up three things. Firstly I will hand up a folder which contains the outline of submission and supporting the cases. I hand up a chronology of events. And I hand up a folder of materials consisting of the Court documents, affidavit material and transcript from proceedings V845 of 2000, proceedings in the Federal Court, which I understand my friend doesn't take objection and the relevance of which I will come to in due course.

PN243

SENIOR DEPUTY PRESIDENT POLITES: Thank you. To keep some tab on these we will mark the blue folder, which contains the list of cases and the outline and other material as MFI3 in C number 34695 of 2000.

MFI #3 LIST OF CASES AND OUTLINE AND OTHER MATERIAL

MFI #4 CHRONOLOGY

MFI #5 FOLDER CONTAINING COURT DOCUMENTS

PN244

MR McDONALD: Thank you, your Honour. Your Honour, can I point out that the blue folder, your Honour will see from the first page inside the blue folder, I have also included in there the - which starts at tab 12, the materials which I will be seeking to rely upon in relation to the extension of time application, but it is convenient if they are all in the one folder.

PN245

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN246

MR McDONALD: We already seem to be being swamped by folders, unfortunately. Thank you. Can I deal at the outset, and I am dealing with that which Mr Shaw has described as the first appeal, with the question of leave, and can I say at the outset, if the Commission pleases, that it is submitted that public interest consideration weigh very heavily against leave to appeal being granted in this proceeding.

PN247

And the reason for that is to be found in the eloquently expressed, but very strongly found, statements of fact - findings of fact, contained in Commissioner Lewin's decision. And in that respect can I refer the Commission in particular to paragraph 63 where Commissioner Lewin makes the following statement - this is paragraph 63 of Commissioner Lewin's decision, print T2538. Commissioner Lewin states this:

PN248

I have already noted that consideration of the public interest has been excluded from the functions ...(reads)... not involved in relation to the scenario before me.

PN249

Now, whilst it wasn't a relevant consideration for Commissioner Lewin it is of course a relevant consideration right at the threshold in terms of the argument which my friend must put under section 45. And then in paragraph 65 Commissioner Lewin says this, in the middle of the paragraph:

PN250

In my view, the parties have so hardened their attitudes to one another and to the issues in dispute ...(reads)... is the most logical process to apply.

PN251

Now, they are very strong findings which have been made by Commissioner Lewin and one asks rhetorically at the outset just precisely what is it that Mr Shaw, on behalf of his client, asks the Full Bench to do. Presumably he is simply asking the Full Bench to quash the decision of Commissioner Lewin. Now, if that be the order that he seeks the inevitable consequence is a return to the situation as found by Commissioner Lewin prior to his termination of the bargaining period.

PN252

The next point that I make in relation to the question of leave to appeal is this. The notes of appeal, it seeks to agitate a question of jurisdiction under section 45(1)(g) by reference to raising issues of procedural fairness. But with respect when one looks at the substance of the matter it raises that jurisdictional ground, via procedural fairness route, it raises it in a tenuous way only and at paragraph (2) of the outline I have referred to the Full Bench decision in the APPM Export Woodchip Mills Interim Award which is to be found behind tab 1 of the folder and at page 2 of that decision at point 8 of the page I see that his Honour, the presiding member, was also presiding member of this Bench, at point 8 of the page the Bench states this:

PN253

We turn next to the argument advanced by the appellants that Deputy President MacBean lacked jurisdiction to make the award. The Commission has in previous cases taken the view that if there is a substantial argument about jurisdiction ...(reads)... However in this case we are not satisfied that there is a substantial argument as to lack of jurisdiction to make the award.

PN254

Insofar as my friend agitates absence of procedural fairness as the foundation of his jurisdictional argument, and he agitates no other basis, we would submit with respect that it is not a substantial argument. It is a weak argument and weighs heavily against granting of leave to appeal. The next matter that we address, and this is a matter about which my friend has been entirely silent. This case, the way it has been presented today, with respect, there has been an air of unreality about it.

PN255

My friend places before the Commission the chain of correspondence between the parties, but he says nothing at all about the corresponding proceedings in the Federal Court, V845 of 2000. The significance of those proceedings is immediately apparent when one turns to the affidavit material which was filed. If the members of the Bench can go to the file that I have handed up, behind tab 2 there is the affidavit of Adam Paul Bandt. This is in the Minter Ellison folder.

PN256

SENIOR DEPUTY PRESIDENT POLITES: MFI5, is it?

PN257

MR McDONAL: Thank you. And behind tab 2 there is the affidavit of Mr Bandt, that is the affidavit which was filed in 845. Does the Commission have that?

PN258

SENIOR DEPUTY PRESIDENT POLITES: Yes.

PN259

MR McDONAL: Yes. Now, Mr Shaw has tendered in these proceedings the affidavit of Mr Bandt which was relied upon by the union in the stay application before SDP Watson. This affidavit - if the Commission could note this - paragraphs 19 to 27 and paragraph 29 to 40 of this affidavit in V845 correspond exactly with paragraphs 7 to 27 of the affidavit which Mr Shaw filed earlier this morning. The exhibit material, the four exhibits are similarly, they are the same four exhibits.

PN260

Now, the sequence of events preceding proceedings in 845 are as follows: on 27 October, this is after the letter from Slater and Gordon making the formal, in inverted commas, "application under section 111(1)(g)", in paragraph 3 of the outline of extracted part of the letter which was sent on 27 October:

PN261

If the Commission should come to the decision that my client should not be further heard on their applications -

PN262

that is, to reopen in section 111(1)(g) -

PN263

or in the issue of listing those applications prior to the Commissioner delivering the decision in the proceeding, we respectfully ask that I be so notified and my clients be given due opportunity to consider their position and seek any remedies which may be available in relation to such a decision.

PN264

And, as we know, on 30 October, Commissioner Lewin wrote to Slater and Gordon and informed them that he was not going to reopen the case and that his decision would be issued on 2 November. On 1 November, Slater and Gordon on behalf of the CFMEU and the ASU commenced proceeding V845. The significance of the affidavit material with respect is that the three documents which had been forwarded to Commissioner Lewis in under cover of the letter from Slater and Gordon on, I think, 26 October, that is the alternative mine plan and the issues, documents and so forth, those documents together with a mass of other documents which are Exhibit APB2, the alternative mine plan, there are about 120, 130 documents, these were all annexed to the affidavit which went to the Federal Court.

PN265

Now, proceedings came on in the Federal Court initially on 2 November I think and then on 3 November there was a full hearing of the matter. A full hearing of an interlocutory application which was brought by the unions seeking an order to restrain Commissioner Lewin from handing down an order terminating the bargaining period, or from acting on any such order to terminate the bargaining period. And although the proceedings were interlocutory in nature, in addition to the affidavit of Mr Bandt there was also an affidavit of Mr Smith, CEO of Yallourn Energy which is at tab 4, and significantly there was lengthy cross-examination of Mr Smith on the contents of his affidavit and the cross-examination is behind tab 7.

PN266

There is the transcript of proceedings. Cross-examination commences at page 25 and it concludes at page 48 and the unions were represented by Mr Burnside, QC, and Mr Smith was cross-examined up hill and down dale - I will not take the Commission through the cross-examination, but he was cross-examined in very great detail regarding the contents of the very same documents which had been forwarded to Commissioner Lewin and other documents in support of the union's application to reopen the case.

PN267

Marshall J hands down his decision and the decision is to be found behind tab 5 and at page - it is a decision dated 6 November, behind tab 5 and can I ask the members of the Bench to turn to paragraph 13 of that decision, "The next question which arises for determination", at the bottom of page 4:

PN268

The next question which arises for determination is whether there is a serious issue to be tried in the proceedings. The allegations of breach of a certified agreement, wrongful inducement of resignations from the union ...(reads)... As the evidence currently stands I consider that although the applicants have established serious issues to be tried, those issues may be described as more doubtful claims that would only attract interlocutory relief if there was a marked balance of convenience in favour of them.

PN269

So the relevance of this material with respect to the question of leave is this: if the Full Bench accepts everything that Mr Shaw puts to the Bench on behalf of the CFMEU, in light of these findings, findings of fact, albeit at an interlocutory stage but after detailed cross-examination in respect of the very same material that was placed before Commissioner Lewin and upon which the appellants now rely is the basis of the claim of procedural fairness.

PN270

With respect, why would this Bench interfere with the decision of Commissioner Lewin, because the findings of fact of Marshall J weigh very heavily in favour of the conclusion that even if there had been further proceedings it would not have mattered a jot. It cannot be said that the union did not have a good crack at it. They brought one of the senior silks in the country in to cross-examine Mr Smith. He was cross-examined at length, the evidence is there and there is a finding of credit which is favourable to the company.

PN271

This appeal, with respect, consistent with the decision of the High Court in Coal v Allied, which is now reported at [2000] HCA 47; 174 ALR 585. This appeal is conducted by way of a rehearing. It is not an appeal in the strict sense. The Bench has before it material which was not before Commissioner Lewin and the Bench is perfectly entitled to have regard to that material and if it does so, with respect, leave to appeal should not be granted.

PN272

I am up to paragraph 9 of my outline now. Paragraph 9 may, again - the fact of weighing against leave to appeal, again, accepting everything that Mr Shaw puts to you, this is the worst case scenario for the company. Essentially the kernel of the argument advanced by the unions is that they have been prejudiced by the termination of the bargaining period because their rights to take protected action in respect of the restructuring which the union say is foreshadowed by the documents. They say they have been deprived of that right to take collective action.

PN273

When one looks at the actual orders which have been made by Commissioner Lewin, that is not the case at all. Order number 1.5 clearly protects the union's position, because if there were any forced redundancies that would be a breach of clause 6.1 of the certified agreement which is Exhibit APB1 to the affidavit of Mr Bandt. That is Exhibit EB3. And, in accordance with the terms of the orders, if there was any forced redundancies the unions could institute fresh bargaining periods.

PN274

SENIOR DEPUTY PRESIDENT KAUFMAN: Isn't there apprehension of it wider than that, that the company can take other action falling short of redundancies? Is that not their complaint, that the company can take some other action?

PN275

MR SHAW: With respect, the affidavit of Mr Bandt focuses upon the concern of the forced redundancies, that the restructuring, the introduction of the new bulldozing technology and the like would result in forced redundancies and I make that point, but can I also make this point. The terms of the EB3 are such that any introduction of change without the agreement of the union is a breach of the certified agreement. So looking at the broader scope of the - your Honour is correct. They make other complaints about proposals to introduce change without consultation. That is your Honour's point as I understand it.

PN276

That would itself be a breach of the certified agreement which itself would activate clause 1.5. Hence the terms of the undertaking which is the other matter which is relevant on this question of leave, the undertaking given to the Federal Court that there would be no forced redundancies and there would be no introduction of change whilst EB3 was in place without consultation and agreement. Now those, with respect, are a raft of considerations which weigh very, very heavily against the grant of leave to appeal on these proceedings. Now, if I can come to the substance of the appeal which appears at page 4 of the outline under the heading Refusal, Failure to Exercise Jurisdiction.

PN277

Now, the issue here, the central issue, with respect, raised on the appeal is the failure of Commissioner Lewin to accede to a request to reopen the case. Of course it needs to be borne in mind from the terms of the chronology, which is MFI4, that these proceedings were commenced on 24 July when the application was filed and the matter came on for hearing on 25 July. There were some eight days of hearings and there were very deep extensive written submissions between the parties and the last day of hearing was 8 September. Commissioner Lewin had been reserved for a period of some six weeks when the correspondence commences with Slater and Gordon.

PN278

Now, at paragraph 11 I have noted the authority of the High Court in Smith v New South Wales Bar Association which is the effect that in circumstances where a party seeks to reopen its case the primary consideration is the question of embarrassment or prejudice to the other side and that case appears behind tab 9 of the folder. At the bottom of 266 the Court said this:

PN279

It is again necessary to distinguish between the considerations which may bear on the decision to reopen and the processes involved in reconsideration once a case has been reopened. If an application ...(reads)... the primary consideration should not be that of embarrassment or prejudice to the other side.

PN280

So if one looks at the reissue of the reopening of the case from the perspective of prejudice, one is immediately compelled to the findings which have been made by Commissioner Lewin, and just jumping ahead of myself, Commissioner Lewin made a finding to the effect that the delay was costing the company an amount of some, I think, 2.8 million dollars per week. I refer to that at paragraph 18 of the outline and the relevant reference is paragraph 45 of the decision. So any decision to reopen the case would have obviously further delayed the finalisation of the proceedings, inevitably resulting in further substantial financial losses to the company. So on the question of prejudice one could hardly imagine a stronger foundation for a failure to reopen the case.

PN281

The next salient point with respect which I refer to in paragraph 12 is that the question of whether or not Commissioner Lewin should have reopened the case is a discretionary consideration and the consideration of the exercise of that discretion falls to be determined by reference to the principles in Haus v The King. An authority for that proposition is to be found in the Full Court decision of the New South Wales Supreme Court, Urban Transport Authority v Weisser, which is behind tab 11. The relevant passage appearing at page 474 and I will not take the Bench to it in detail, but the Bench will see at 474, from about the middle of the page onwards there is some consideration of the matters relating to the application and then the final paragraph on 474:

PN282

The decision was a discretionary one and this Court can interfere only if there has been a failure properly to exercise the discretion which the law opposed in the Court at first instance. The principles are discussed in Haus v The King.

PN283

Then paragraph 13, I refer to another New South Wales Supreme Court Full Court decision, that is the Fightvision v Onisforou, otherwise known as the Kostya Tszyu case, a dispute between Mr Tszyu and his management, Mr Morley, quite a coincidence having regard to the events of the weekend, and you will see that that case stands for the proposition that the importance of the further evidence in the proceeding, the consequences of a further hearing in the proceedings, particularly likely prejudice to the party resisting the application are among matters properly taken into account in the exercise of the discretion.

PN284

So as a matter of discretion, having regard to prejudice, issues of potential prejudice, in light of the findings of Commissioner Lewin as to the cost consequences, loss of revenue as a result of industrial action which would still take place at that time and in light of the overall circumstances of the case, that is Commissioner Lewin having been reserved for some six weeks, and it is noteworthy in his decision, if the Commission pleases, he does allude to the fact that but for the very heavy pressures under which he was placed at the time it had been his strong desire to get the decision out earlier, that in terms of prejudice so far as an exercise of discretion is concerned, as this was, it is one which the Commission would be loathe to interfere with.

PN285

Now, at paragraph 14 onward of the outline, I have dealt with a number of cases which deal with the requirements of natural justice insofar as they operate in the Commission, and the first point that I make at paragraph 14 is that those requirements are not fixed in a body of rules and that what constitutes proper application of principles of natural justice and procedural fairness will vary according to the particular circumstances which are prevailing in any particular case and if I could ask the members of the Bench to turn please to the Energy Developments case which is behind tab 4, which is a useful statement of principle in relation to this matter, at page 6 under the heading Procedural Fairness and Intervention and the Full Bench states this:

PN286

It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission -

PN287

there is reference to some authorities to that effect -

PN288

The term natural justice in the context of administrative decision making being essentially equated to an obligation to act fairly at all Court procedural fairness. The requirements of natural justice ...(reads)... What is required in one case may be quite different from what is required of another.

PN289

And there is reference to Russell v Duke of Norfolk:

PN290

The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with.

PN291

And so forth. And there is reference to the judgment of Kitto J and Mobil Oil:

PN292

What the law requires in the discharge of the quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. ...(reads)... depends upon the circumstances.

PN293

Now, with respect that is a matter which assumes even greater importance in the context of the Commission in the course of the existence of section 110 of the Workplace Relations Act which accords a wide ranging power to the Commission in terms of the control of its own proceedings and in that respect - before I go on to that, the Commission will see I have also made reference to re Freport Enterprise Flexibility Agreement in tab 14. I will not ask the Commission to go to that but that is to be found behind tab 6 of the cases. It is to the same effect.

[3.32pm]

PN294

Now, as regards section 110 could I ask the Commission, and I am now at page 15 of the outline, to refer to the judgment of the Full Bench, a recent Full Bench decision in the case involving the same parties. That is CFMEU and Yallourn Energy. It is behind tab 2 and SDP Polites, you may recall that this was a matter where you entertained there was a stay application. This was the proceeding which raised the question of the inter-relationship between 111(1)(g) of the Act and section 166A of the Act and the matter proceeded before the Full Bench.

PN295

Largely it was debated on a question of the construction of the Act. That is, whether or not the terms of section 166A were such as to - where there is reference in section 111, subject to this Act, that the terms of section 166A, particularly in sub-sections (5) and (6) where there is a reference to immediately acting and so forth, whether the effect of that was to effectively oust the availability of section 111(1)(g) in respect of 166A. Now, can I ask the Bench to go to paragraph 15 of the decision which appears on page 15 and the Full Bench says this:

PN296

Once however the Commission has complied with section 166A(5) and provided it was not then required to comply with 166A(6) it would, we think, be open to it to entertain a section 111(1)(g) application. ...(reads)... His obligation was to determine whether, as Yallourn Energy submitted, he was obliged to immediately certify.

PN297

So the Commission in this case, this is a case where Commissioner Holmes did not entertain an application, would not hear an application under section 111(1)(g), the Commission in the Full Bench, in determining that that was a proper course for Commissioner Holmes to have followed has had regard to the powers conferred upon the Commission by section 110 of the Act.

PN298

And to similar effect, I have made reference in paragraph 15 to the judgment of Brennan J in ex parte Vista Paper Products which is to be found behind - I do not know if it has actually found its way into the folder of cases, but the passage there, it is a short passage, 39 IR 37 at 39, the effect of the judgment and the passage relied upon is that section 110 has the power of making the Commission master of its own proceedings.

PN299

SENIOR DEPUTY PRESIDENT POLITES: It is behind tab 8, Mr McDonal.

PN300

MR McDONAL: Thank you, your Honour. I do not think I have misquoted his Honour. Yes, the relevant passage, the final paragraph on page 39, under 110(2):

PN301

The Commission has made master of its own procedure.

PN302

Then on page 40, the second paragraph on page 40:

PN303

There is no doubt that the power to mould its own procedure will be of no avail if the course which is followed by the Commission is so unreasonable that no proper exercise of the discretion can be said to have been made.

PN304

And then he says this:

PN305

But in this case the Full Bench said this:

PN306

It was, in our view, within the scope of the discretion that his Honour had, particularly having regard to the terms of section 110 of the Act in dealing with the dispute to conduct the proceedings in the manner he has.

PN307

And with respect that reasoning of the Full Bench we would submit is equally apposite to the present proceedings. Now, my friend has made reference to Arnel's case and section 111(1)(g) application. I make this submission at paragraph 16 of the outline, that is that the application under section 111(1)(g), such an application sees the exercise of powers which do not affect substantive rights and liabilities such as the power to make an award. The power conferred is procedural rather than substantive and Citicorp case is authority for that proposition at the passage as set out.

PN308

If one proceeds from that foundation the 111(1)(g) application contained in the letter - I will assume for present purposes there was proper application - an application in that letter of 26 October, that was a procedural application in relation to the section 170MW application in which proceedings had concluded and were reserved for some six weeks. Any decision by Commissioner Lewin to entertain the 111(1)(g) application was contingent upon him reopening the MW application.

PN309

Now, if the Bench comes to the conclusion, as we submit it should, that Commissioner Lewin was clearly entitled not to reopen the section 170MW application, the question of whether or not he should have entertained the 111(1)(g) application simply falls to the wayside. The appellants in this case cannot get away from the fact that there was material requested by Commissioner Lewin from them in respect of their application to reopen. It was sent to him, he looked at it, he considered it and he made a decision that he would not reopen.

PN310

That material, particularly in light of the findings of Marshall J to which I submit this Bench can have proper regard, is of absolutely no bearing at all on the section 170MW application. We have to with respect keep coming back to just what was the inquiry which Commissioner Lewin was engaged in. It was an inquiry under section MW(7). He was looking at two fundamental questions: were the employees in question of a kind whose employment had been regulated by paid rates awards; and was there a reasonable prospect of an agreement being reached.

PN311

He sent a couple of documents by the union consisting of an alternative mine plan and some internal documents setting out various scenarios. On the fact of those documents how could it be said they are of any relevance at all to the considerations under section 170MW(7). The finding of his Honour, Marshall J, of the Federal Court weighs very heavily in favour of the conclusion of absolutely no relevance at all. As to Arnel's case can I make this submission? The circumstances of that case are very, very far removed from the circumstances of this case and in particular paragraph 21 of the internet copy of the judgment which is at page 93.5 of the CLR report, the High Court said this:

PN312

Ordinarily an application for leave to intervene to argue some matter on which a decision had already been given will enjoy scant prospect of success. ...(reads)... should be reconsidered would be one that would merit serious consideration.

PN313

It is a question of the characterisation of the facts. Arnel's case boiled down - - -

PN314

SENIOR DEPUTY PRESIDENT POLITES: You mean what the High Court thought were the facts.

PN315

MR McDONAL: What they thought were the facts.

PN316

SENIOR DEPUTY PRESIDENT POLITES: I speak about that with some feeling.

PN317

MR McDONAL: It is a question of characterisation. If I can make this simple submission. It is readily distinguishable, it is readily distinguishable on its facts as an issue of essentially a right to intervene in respect of individuals that the High Court characterised as being unrepresented. It is a mile away from a situation where in a very seriously heavily contested proceeding, arbitral proceeding in the Commission where parties have been fully represented and had the opportunity over a period of weeks to put very thorough submission, the decision being reserved for six weeks and then one of the parties puts their hands up and says, "Oh, we want to come back and have another crack."

PN318

It is, with respect, a mile away. Arnel's case does not advance my friend's case one jot. Finally, as to the issue of a failure to give reasons for decision, now the submission that I make is this: the decision of 30 October, that is the decision not to reopen, was clearly an interlocutory procedural decision. It did not affect substantive rights. The decision affecting substantive rights is the decision of 2 November, that is the decision of Commissioner Lewin indicating his intention to issue orders terminating the bargaining period.

PN319

The decision not to reopen the case, being interlocutory and procedural, was not a decision of a character which gave rise to an obligation to give reasons for decision, and I have made reference to the Full Federal Court's consideration of this issue of when the obligation arises in Edwards v Giudice and others[1999] FCA 1836; , 169 ALR 89 in the judgments of Moore and Marshall JJ, and without taking the members of the Bench to their consideration of the authorities in detail, what it boils down to is this, in my submission, that it is where the decision is one - in the case of an administrative tribunal, it is where the decision is one which properly construed is affecting substantive rights.

PN320

That is the circumstance in which a right - an obligation for reasons to be produced subsists. And one can look at it from this perspective: if it be the case that an interlocutory procedural decision imposed upon the Commission an obligation to produce reasons for decision, the effect would be to cause very substantial delay and obstruction to the disposition of business before the Commission. Indeed it is not without significance - I don't want to overstate this point - but it is not without significance that, when Slater and Gordon write to Commissioner Lewin on 27 October, the passage that is set out at page 3 of the outline of argument, what does Mr Clayton, the partner at Slater and Gordon say to Commissioner Lewin?

PN321

He doesn't say, give us your decision and please give us the reasons for the decision. He says, tell us what you are going to do, and we will be off to the Federal Court. That is in brackets, he didn't put that in the letter, but that was what he intended, and that was what happened. So the appellant's own solicitors seem to have proceeded very much on the basis that the decision in question was one which wasn't going to produce reasons, other than those which were contained in the letter of 30 October. Those are the submissions.

PN322

SENIOR DEPUTY PRESIDENT POLITES: Mr Shaw, I have got another commitment at 4 o'clock. Could you finish by then or would you prefer to reply in writing?

PN323

MR SHAW: I can reply by then, your Honour.

PN324

SENIOR DEPUTY PRESIDENT POLITES: Thank you.

PN325

MR SHAW: Your Honours and Mr Commissioner, the respondent to the appeal says no leave should be given, but the fact is the point we have made is one of procedural fairness and is therefore jurisdictional and, in our respectful submission, every consideration ought to be given to granting leave so as to hear and determine such a matter and having it dealt with within this Commission. And I don't say this in terrorem, but as distinct from other litigation that people might be inclined to take up. It is far better that the Commission determine these procedural and jurisdictional questions rather than having them dealt with elsewhere, in my respectful submission.

PN326

Secondly, there is strong reliance placed by the respondent to the appeal on the proceedings in the Federal Court before Marshall J, and in particular his Honour's decision of 6 November 2000. In our submission, his Honour was concerned with a wholly different exercise from that which this Bench is concerned pursuant to section 45 of the Workplace Relations Act. His Honour was concerned with interlocutory injunctions against, or directed to, the process of a member of the Commission.

PN327

Your Honours and Mr Commissioner are concerned with an appeal process considering all of the material before the Commissioner and exercising appropriate authority pursuant to section 45. In particular, although accepting that his Honour Marshall J held that there was not a balance of convenience in favour of the interlocutory relief which was then sought, his Honour was at pains to say: look, these were matters for the Commission; refer to paragraph 19.

PN328

The Commission had declined to consider the Yallourn Energy documents which were in evidence before the Court. His Honour said the Court would not ordinarily have a general supervisory role over the Commission in respect of claims that the Commission has deprived a party natural justice, yet that is effectively a role which the Court has been requested to perform, and I think, with respect, that line of thinking would have a resonance within this Commission. One can see, with respect, the force of it.

PN329

And then in paragraph 20, the judge said, in short, any damage done to the applicant as a result of the completion of the alleged conspiracy is not of itself a sufficient reason to have the Court embark upon a de facto appeal before Commissioner Lewin's decision when that is the function of a Full Bench of the Commission. That shows the quantative difference in principle between what Marshall J was asked to do and what your Honours and Mr Commissioner are asked to do here. And then Marshall J went on to say in paragraph 20:

PN330

That is especially so in circumstances where that appellant process has already commenced and so on.

PN331

So really there is no comfort for our friends representing the respondent employers in the judgment of Marshall J. It is like chalk and cheese. There are two different processes going on there. Now, my learned friend referred to undertakings which were given to the Federal Court about the way things would happen pursuant to the certified agreement. The fact is, of course, if the arbitration process under section 170MX is invoked then that certified agreement would be displaced and if your Honours and Mr Commissioner were to contemplate exhibit G1 which was tendered to you today, and in particular were to contemplate clause - it was a clause about contracting out - clause 19.

PN332

If that were to be given effect to obviously it would be open go, it would be a complete green light to contracting out. So one can see what the union and its members were concerned about. In our submission none of the arguments about undertakings given to the Federal Court negates the documents which show the plotting and planning of the employer and none of it negates the relevance to that as to the question of terminating the bargaining period and trying to get rid of the enterprise bargaining agreement which was in force and effect.

PN333

Your Honours and Mr Commissioner, we say whatever the flexibility of the rules about natural justice, and my learned friend has referred to the fact that those rules can change depending upon the circumstances. I accept, of course, the authorities to that affect. Whatever the flexibility about those rules about natural justice the fact is where a party has a serious and substantial matter to be entertained it ought to be heard. And it ought to be heard not by some unsatisfactory process of correspondence but it ought to be heard in my submission by argument and by evidence where that is necessary.

PN334

Now that is not to detract from the Commission's power to constrain procedurally a case. If parties are excessively prolix or if they are going over the top in terms of evidence and so on, the Commission has undoubted powers to constrain that process. But nonetheless, there is, in my submission, a right to a hearing where there is a bona fide serious and substantial matter which is raised by a party, prior to a decision being made and where the Commission is not functus officio in relation to that particular matter.

PN335

That is the very antithesis of what happened in this case, and in our submission, despite the able submissions of my learned friend, it sits very poorly with the judgment of the High Court in Arnel, the judgment of a Full Bench of this Commission in BWIU, which my learned friend hasn't mentioned, and a judgment of the High Court in the Queen and Ludeke ex parte the Customs Officers Association. Now, finally, if the Commission pleases, in relation to the judgment in CFMEU v Yallourn Energy, 12 January 2001, print 900132, we would distinguish paragraphs 17 and 18 of that decision on the basis that what the Commission was there concerned with was a mandatory obligation on the part of the Commission to issue the certificate, if the pre-requisites were demonstrated.

PN336

There was no question of discretion. Whereas here, under section 170MW, there is an undoubted discretion, and procedural fairness must, if my learned friend is right, be varied, having regard to the fact that there is a wide discretion which can encompass many and different factual and other circumstances, so one can understand the view of the Full Bench in that case, and assuming for the purpose of the argument that it was correct, that there was no need to deal with section 111(1)(g) the fact is that was simply because the Commission had no option but to issue the requisite order because it was operating under the provision of the - under a provision of the legislation which was mandatory in its terms and effect. Those are our submissions in reply to the appeal. If the Commission pleases.

PN337

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Shaw, there is one matter that has been exercising my interest, could you tell me whether, in the period after he - the Commissioner declined your application to re-open and the period - sorry, in the period between his decision and the period that he made his order, could you have addressed him on the form of order?

PN338

MR SHAW: I am told, your Honour, that between the decision and the order, both parties sought to put in some further written submissions in these rather fangled proceedings so that both parties are, I suppose, asserted a right to do so, and I think in point of principle there is a right. Well, my friend is saying that there is reference to it in the decision. But in point of principle, until a Court or Tribunal has actually perfected its order in the sense of signing off on a formal order, it retains jurisdiction and it is always possible until that final process to hear further considerations, if those considerations are appropriate to be raised.

PN339

And indeed, even after the formal order I am not sure whether it has been held whether the slip rule applies to this Commission and Administrative Tribunals, but it may well. The old notion of the slip rule would enable a Court in relation to relatively modest mistakes, to enable that - even a signed order, to be re-entered. So the sort answer to your Honour's question is, yes, we say it would have been open, and yes, as I understand it the parties did try to agitate matters even in that short interregnum between the decision and the order.

PN340

SENIOR DEPUTY PRESIDENT KAUFMAN: And did you raise these documents and matters that you wish to bring to this Commissioner's attention in that exercise?

PN341

MR SHAW: I am not sure about that, but it wouldn't matter, because we raised them before the - we raised them before the decision and we sent them off before the decision, and so that the - it would have been otiose to re-agitate those matters after they had been sent, both to the other side and to the Commissioner. They were put fairly and squarely to the Commissioner as forming the basis for an application for re-opening. And it is unnecessary to reiterate that after the decision.

PN342

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, thank you.

PN343

MR SHAW: Thank you, your Honour.

PN344

MR McDONAL: Could I - just following up on that - provide the Bench with a direction which was issued by Commissioner Lewin on 3 November in relation to the question of the form of order and also a copy of the document which was filed by the union, consequent upon that direction?

PN345

SENIOR DEPUTY PRESIDENT POLITES: Surely those both documents will be on the file. They should be on the original file. They may not have been filed in the proceeding.

PN346

MR McDONAL: Well, just to confirm, there was a direction issued on 3 November by Commissioner Lewin for the filing of submissions in relation to the orders, and on 6 November Slater and Gordon forwarded a submission and a form of order to Commissioner Lewin.

PN347

SENIOR DEPUTY PRESIDENT POLITES: Perhaps you could have your instructing solicitors make copies of that available to the Bench and to Mr Shaw.

PN348

MR McDONAL: Certainly, your Honour. Just before we go, can I raise what is going to happen with the other matter, the extension of time matter?

PN349

SENIOR DEPUTY PRESIDENT POLITES: You can raise it, Mr McDonal, but I am not sure that you are going to get an answer today.

PN350

MR McDONAL: No, I appreciate that.

PN351

SENIOR DEPUTY PRESIDENT POLITES: We haven't lost sight of that matter. We will reserve our decision in the matter we have heard, and we will be in communication with the parties as to the other appeal and the MX matter subject to the result of this appeal in due course.

ADJOURNED INDEFINITELY [4.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 TEXT OF THE DRAFT MX AWARD PN19
MFI #1 BOOK CONTAINING NOTICE OF APPEAL, AFFIDAVIT OF MR BANT AND ANNEXURE, IN C NO 34695 OF 2000 PN110
MFI #2 BUNDLE OF AUTHORITIES PN111
MFI #3 LIST OF CASES AND OUTLINE AND OTHER MATERIAL PN244
MFI #4 CHRONOLOGY PN244
MFI #5 FOLDER CONTAINING COURT DOCUMENTS PN244