C2001/5178, Transcript of Proceedings [2002] AIRCTrans 1481 (2 May 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT03535
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2001/5178

APPLICATION TO DISMISS OR REFRAIN FROM
HEARING

Application under section 111(1)(g) of the Act
by Wilson Carpark and Others re application to
vary the award in C2001/1736

MELBOURNE

10.37 AM, THURSDAY, 18 APRIL 2002

PN1

MR T. ANGELOPOULOS: I appear on behalf of the named employers.

PN2

MS R. FRENZEL: I continue my appearance for the LHMU and although he is not in the room right now, MR B OATES also appears for the union.

PN3

THE COMMISSIONER: Very well.

PN4

MR ANGELOPOULOS: Commissioner, this is probably a preliminary matter of leave to appeal. I would seek leave to appeal in this application.

PN5

THE COMMISSIONER: Leave to appear?

PN6

MR ANGELOPOULOS: Leave to appear, sorry.

PN7

THE COMMISSIONER: Yes, that is what I thought.

PN8

MR ANGELOPOULOS: In this application.

PN9

THE COMMISSIONER: Yes, I wasn't quite sure where you were in that particular situation, Mr Angelopoulos, but is there any objection?

PN10

MS FRENZEL: There is no objection, Commissioner.

PN11

THE COMMISSIONER: Yes, very well, leave is granted.

PN12

MR ANGELOPOULOS: Thank you, Commissioner. Commissioner, before I proceed with the actual substantive argument, if I could hand up to the Commission two documents, one being a list of authorities that we are relying on in our submissions, they being the submissions which have been filed and the further oral submissions I will be making today. The documents - and in addition there is an outline of my oral submissions.

PN13

THE COMMISSIONER: Yes.

PN14

MR ANGELOPOULOS: The documents which have an asterisk next to them are not documents or decisions that we have copied but they are documents which have appeared in our original submissions or the union's submissions. And on that basis I would have thought, perhaps, the Commission may have obtained a copy of them because the submissions have been with you for such a long period of time. But all the other ones are decisions which I will be referring to in my oral submissions. I will tender them as I go along.

PN15

Commissioner, there is one other preliminary matter which I think we need to deal with and that is that this refrain from hearing application has been allocated a separate C number. In truth it is part of the broader application to vary and I would have thought it would be appropriate, in fact, to join the refrain application to the union's own application to vary. It is my understanding that normally refrain from hearing applications are not separately numbered but because we filed, in effect, a written refrain from hearing application which took the form of one of the forms of the Commission, that is perhaps why it has been allocated a separate C number.

PN16

THE COMMISSIONER: Does it matter?

PN17

MR ANGELOPOULOS: I don't think it matters formally but I think it makes it more cohesive.

PN18

THE COMMISSIONER: Since we have - yes, I think I would rather stick with the idea of hearing it separately.

PN19

MR ANGELOPOULOS: That is not a problem, Commissioner.

PN20

THE COMMISSIONER: It has got a file now.

PN21

MR ANGELOPOULOS: It certainly has.

PN22

THE COMMISSIONER: It is not going to make any substantive difference to the interests of the people you represent.

PN23

MR ANGELOPOULOS: Yes. Commissioner, this is an application under section 111(1)(g)(iii) of the Act which says:

PN24

Subject to this Act the Commission may in relation to an industrial dispute dismiss a matter or part of a matter or refrain from hearing or from determining the industrial dispute or part of the industrial dispute if it appears that further proceedings are not necessary or desirable in the public interest.

PN25

Section 111(2) of the Act further provides:

PN26

That unless the context otherwise requires a reference in this section, except sub section (1)(aa) to an industrial dispute includes a reference to any other proceeding before the Commission.

PN27

And on that basis we say that the application to vary is likewise subject to refrain from hearing applications as would an industrial dispute itself. We first recorded that we would be making an application to refrain from hearing the union's application in the transcript on 30 August last year. And Mr Levine at paragraph 144 said:

PN28

But those matters, sir, that are before you, we will be making submissions and should not be heard by you and you should refrain from hearing them on the basis they are in excess of safety net.

PN29

We then made - we wrote a letter to the union and copied the Commission in which we formally noted that we would be making our application and the application was attached. That was done on 1 October. The employers make - deal with four grounds on which the Commission should refrain from hearing. Two of those were filed in submissions on 30 October last year. Two further grounds were filed last week, Tuesday, and I guess there is a preliminary issue, whether the union has any objection to us dealing with those further two additional grounds today.

PN30

We noted in our letter on the Monday before filing that we would be making these applications and we said why we would. We also noted in that letter, Commissioner, which you have a copy of, that the one ground about the issue of the award being unsimplified, was raised in transcript. And the other matter about delays is something which has occurred over the period of time, basically, since these events first happened. As I said, we have four grounds on which we seek to refrain from hearing, Commissioner. Two of those grounds are temporal.

PN31

That is, the second ground, being the ground that the matter is more appropriately dealt with by way of enterprise bargaining, is a temporal ground as is the ground that the award should be for simplified - the interim award made final. We say they are temporal because once those events happen the Commission can proceed to hear the union's application. Our main ground, however, Commissioner is not a temporal ground. And that is the ground that have regard to the wage fixing principles in the Metal Casuals case decision which is print T4991, according to my memory.

PN32

The Commission is restrained or should refrain from further hearing the union's application to vary in respect of all matters other than the hours of work provision. The hours of work provision provide the full reduction from 40 hours to 38 hours. We say that is clearly within the principles as established by principal 2. The remainder, we say, on their face, a claim above the safety net. And being a claim above the safety net, it is for a Full Bench to determine whether in fact, therefore, as a special case, he should hear and determine the claim and grant because it is a special case or in truth it is remedial in nature.

PN33

And I will refer you, Commissioner, back to that paragraph in the middle of the Metal Casuals case very soon. The fourth ground is about the union's conduct and we say that is not a temporal ground. That is final. That is because the union has been so lax in making and dealing with, not only this issue, the refrain from hearing application, but their own application, the Commission should step back and say, well, I know I should act quickly under section 110(1) of the Act, but you have prevented me from acting quickly and equity and good conscience should mean that you shouldn't deal with it. If I turn first to the first ground and that is that the claim is a special claim.

PN34

It is a claim above the safety net and the Metals Casuals case prevents you from dealing with the claim. The union's submissions in reply in paragraph 3.1 say that they have no objection to construction about the wage fixing principles and that is not subject to debate. Then at paragraph 5.4 they say there have been two decisions which shows something to the contrary and which you should follow, Commissioner and therefore you do have the powers. And of course the union there is referring to the decision of Commissioner Whelan and Commissioner Cargill and they are prints PR931088.

PN35

Actually I believe I have actually put the wrong reference to Commissioner Whelan's print reference in paragraph of my oral outline, but that, in fact, is 914080.

PN36

THE COMMISSIONER: Sorry.

PN37

MR ANGELOPOULOS: That is at paragraph 5.

PN38

THE COMMISSIONER: Paragraph 5.

PN39

MR ANGELOPOULOS: Yes, where it says PR912386, that is PR914080. And that therefore - because of those decisions, Commissioner - you have the power. It is noteworthy that they say:

PN40

Here are but two examples.

PN41

Commissioner, they are the only examples. I have tried to find other ones. And it is actually interesting to note that these actually came out - well, if we had actually stuck to the original time lines, you wouldn't have the benefits of these decisions, but you now do, because of the extended time lines, and why we are here today.

PN42

THE COMMISSIONER: I think there is a decision that I made too in the - - -

PN43

MR ANGELOPOULOS: Certainly.

PN44

THE COMMISSIONER: - - - in relation to the point that you are engaging with in an award concerning the application of safety net adjustments.

PN45

MR ANGELOPOULOS: Commissioner, I would appreciate it if - I am not aware of that decision.

PN46

THE COMMISSIONER: Yes. No, I will let you know what that is.

PN47

MR ANGELOPOULOS: That would be appreciated. It is noteworthy, Commissioner, that the union says, "Look, it doesn't offend the wage fixing principles". In their own right, this application doesn't, but when you combine the wage fixing principles with what is said in the Metal Casuals case, globally we say that you are - you should refrain from hearing the application, because it offends Full Bench principles.

PN48

THE COMMISSIONER: Isn't that a matter for decision if you do hear it?

PN49

MR ANGELOPOULOS: No, Commissioner, because what we are dealing with now is really - you see, if you start entertaining the merits of the case, you are actually getting into the merits, but what the union - what the Metal Casuals case is saying is, "Whether something or not is a special case, is for us to determine". Now, if you start entering into the merits of the case, Commissioner - - -

PN50

THE COMMISSIONER: That is if the case is referred to a Full Bench by the President.

PN51

MR ANGELOPOULOS: Certainly, Commissioner, but if you start entering into the merits of the case, you are, in effect, performing the same function.

PN52

THE COMMISSIONER: Do you suggest that it is only a Full Bench that can determine whether or not a matter is a special case or not?

PN53

MR ANGELOPOULOS: That is correct, Commissioner. And that is - I will refer to a - - -

PN54

THE COMMISSIONER: So, that is the essence of your submission, is it?

PN55

MR ANGELOPOULOS: It is. And it is in paragraph 50 of the Casuals - the Metal Casuals case. They basically say, "It is for us to determine". Maybe not those exact words, but it says, "It is our power".

PN56

THE COMMISSIONER: Well, would you like to take me to that?

PN57

MR ANGELOPOULOS: I will, Commissioner. Do you have a copy, Commissioner, of the Metal Casuals case?

PN58

THE COMMISSIONER: I am not sure. You just read it to me, and we will see. I don't think so.

PN59

MR ANGELOPOULOS: Perhaps if I read that. It is actually paragraph 50 that I am looking at.

PN60

In our view, special case - as used in principle 10 - is not a self-defining term. The identification of a special case is reserved to a Full Bench level of determination.

PN61

They then go on to elaborate on that, but that is the critical point. The identification of a special case is reserved to a Full Bench level of determination. Now, there is no denying, Commissioner, that on the face of it, at the very least, we are saying it is a claim about the safety net. The union does not deny that. In fact, in it's application to the President, it makes that assertion. So, whether or not it does have those criteria, or whether, in fact, it is remedial in nature, if only a Full Bench can determine whether, in fact, it is a special case, it can likewise only determine whether, "No, it is not a special case in the circumstances, but remedial".

PN62

And it may, for example, as is in the National Building & Construction Case - if I could hand up, Commissioner - and that is print PR912386. It is a Full Bench decision. The significance of this case that I have just handed up, Commissioner, is this. In a nut shell the matter did go to the Full Bench. There was argument as to whether or not what was being argued amounted to a special case. If we go to paragraph 40 of that decision, Commissioner - - -

PN63

THE COMMISSIONER: Sorry, just before we go there. It is an interesting point and it might provide some intellectual stimulation. Did the President err by refusing to constitute a Full Bench?

PN64

MR ANGELOPOULOS: I don't believe you can make - you can read anything into that, Commissioner.

PN65

THE COMMISSIONER: Well, how - - -

PN66

MR ANGELOPOULOS: He merely made an assessment based on public interest.

PN67

THE COMMISSIONER: Yes, welI contend, maybe if you just wait a minute, and I will explain to you why I asked the question. I thought you said to me that there is Full Bench authority within the Commission - which is no doubt binding on the President as a single member as well - that only a Full Bench can determine whether or not a matter constitutes a special case.

PN68

MR ANGELOPOULOS: Yes.

PN69

THE COMMISSIONER: So, did the President determine whether or not this matter is a special case?

PN70

MR ANGELOPOULOS: That is not what was in the President's determination, Commissioner. He simply determined whether in the public interest he should establish a Full Bench. He does not in my opinion, nor can he, entertain whether in fact it amounts to a special case, because if he did do so, Commissioner, he would actually be subject to a prerogative risk if - and there are clearly cases on that point and I will come to those very shortly. But, for example, in the Australian Industry Employee Union's case where the - - -

PN71

THE COMMISSIONER: No, no I - - -

PN72

MR ANGELOPOULOS: - - - President made something broader than the statement of public interest it was challenged.

PN73

THE COMMISSIONER: No, look, I don't think there is going to be any contention about - - -

PN74

MR ANGELOPOULOS: No, I just - - -

PN75

THE COMMISSIONER: - - - your submission. You don't need to digress into other matters. I mean I sort of understand what you are submitting, if you follow what I mean.

PN76

MR ANGELOPOULOS: Yes.

PN77

THE COMMISSIONER: There is no misunderstanding. What you are saying is that the answer to the question is that it is not possible for the President to determine whether or not a matter constitutes a special case.

PN78

MR ANGELOPOULOS: That is correct.

PN79

THE COMMISSIONER: That that can only be determined by a Full Bench.

PN80

MR ANGELOPOULOS: Yes, and his determination is really whether he should establish a Full Bench in the public interest. That is what his determination is about. And that is clearly what is in his written record and all I was going to say, Commissioner, is if he went beyond that - - -

PN81

THE COMMISSIONER: It doesn't matter, he didn't.

PN82

MR ANGELOPOULOS: He meant that he would be possibly exceeding his powers. That is what I am saying. And, likewise, what I am saying, Commissioner, is because the President has determined that - not to establish a Full Bench in the public interest it doesn't necessarily mean that he is saying to you, Commissioner, that means you have carte blanche to do with all the application as it is currently now before you. Those sort of considerations are not part of his determination.

PN83

Commissioner, when I - just before I handed up the decision of the National Building Construction Industry Award and the reason I handed that up is because this shows the interaction of special cases. In that case, as I said before, there was an argument whether the matters before the Full Bench were a special case. At paragraph - it should be paragraph 46, not paragraph 40. It says:

PN84

We accept that the claim must be determined in accordance with the provisions of the ...(reads)... support our conclusion in this regard.

PN85

Then at paragraph 54 the Commission - the Full Bench of the Commission says:

PN86

The claim is in fact within principle number 2.

PN87

So, therefore, it is not a special case and, accordingly, item 10 has no application. That is on page 16 of the decision, Commissioner. Then at paragraph 82 which is page 26, which is the last page of the decision, Commissioner, because of the Commission's findings that it is not a special case they refer it back to the single member. Now, this case highlights that there may be circumstances - I am not saying they apply here - where notwithstanding what is claimed, has the apparent features of a special case. When the Full Bench comes to considering the issues it may even decide that actually it simply is within not even a special case or remedial, it is a principle 2 matter.

PN88

And this was quite simple in this case because it concerned structural efficiency principles and minimum rates adjustments, which are clearly within principle 2. So it goes back to the single member to hear it. As I said before, Commissioner, the union's response to our submissions are - concern Commissioner Whelan's and Commission Cargill's decision, and I guess the question is what is the public interest? I am not going to give you dissertation, Commissioner, because I am sure you well know it, of what is the public interest, but just to highlight - - -

PN89

THE COMMISSIONER: I appreciate your confidence.

PN90

MR ANGELOPOULOS: Yes. Just a highlighter, if I could just take you to an extract from the Queensland Electricity Commission case ex parte ETU and all I have done, Commissioner, is photocopy the front page and the page on which the extract appears.

PN91

THE COMMISSIONER: We might need to mark this because it doesn't have a print number.

EXHIBIT #A1 EXTRACT FROM QUEENSLAND ELECTRICITY COMMISSION CASE

PN92

MR ANGELOPOULOS: Now, the citation for it, Commissioner, is 1987 72 ALR1 and then if I could take you to page 5 at paragraph number 30. What goes beyond line 30 is an explanation of where refrain from hearing displaces the normal position of the Commission of hearing an industrial dispute. At line 30 three members of the Court say:

PN93

Ascertainment in any particular case of where the public interest lies will often depend on the balancing of interests, including competing public interest and be very much a question of fact and degree.

PN94

So the public interest test is very much a question of fact and degree. Often it involves competing public interest tests or consideration. Now, this case, of course, concerned, as did a large part of the refrain from hearing applications, of whether there should be a shift from a State award to a Federal Award. And often there is a competing public interest which needs to be assessed. That is what are the benefits of a State award, what are the potential benefits of being in the Federal system. So there is a competition of public interest.

PN95

We say that in this case no such balance - there is no such competition of public interest. And we do this based on the well-known principle that a single member of the Commission should follow Full Bench decisions. Now, in the case which I simply refer to as Dalrymple which is print - - -

PN96

THE COMMISSIONER: I think there is a bit of an issue about the Metals Casuals case because I don't - is it possible for a Full Bench to change the principles?

PN97

MR ANGELOPOULOS: No, they - I don't - Commissioner, they didn't change the principles.

PN98

THE COMMISSIONER: No.

PN99

MR ANGELOPOULOS: They - in my - - -

PN100

THE COMMISSIONER: I didn't ask you if they did, I asked you whether it was possible for a Full Bench to do so.

PN101

MR ANGELOPOULOS: Based on the case I am about to actually give you, Commissioner, they can. They can, but there is the basic principle that you shouldn't as a general rule.

PN102

THE COMMISSIONER: Are you saying to me that a Full Bench can change the principles determined in the Living Wage case?

PN103

MR ANGELOPOULOS: Well, if I can hand up this decision of Dalrymple there is the basic principle which is the legal principle of stare decisis and that is in standing by existing principles and decisions.

PN104

THE COMMISSIONER: That principle has to be modified in the statutory context, doesn't it?

PN105

MR ANGELOPOULOS: Certainly, Commissioner, and this - and it may be the principles established by this case in a nutshell but I will take you to the - say that a Full Bench should follow another Full Bench unless certain circumstances prevail. Now, it may be that when we are considering a safety net bench which is a special type of Full Bench, although it is a Full Bench that there may be an even greater reason why you should not depart from those established. I am not - I can't say - I haven't really looked into the - whether they are absolute and whether another Full Bench can't - or can depart from them.

PN106

But I would say at the very least it would have to be fairly extraordinary circumstances for that to happen.

PN107

THE COMMISSIONER: Well, also going back to where you started, which was to obviously suggest that it wasn't so much a change to the principles but an interpretation of them.

PN108

MR ANGELOPOULOS: That is right, an elaboration of them.

PN109

THE COMMISSIONER: Yes. Well, it seems to me that it is pretty much the same thing though, will all due respect. Interpretation or elaboration is in fact the form of variation of the principles either by extension or addition.

PN110

MR ANGELOPOULOS: Commissioner, what I would say to that is that an interpretation or elaboration may have the effect of varying, but it doesn't vary them as such. By explaining it - you see, what it is saying, it is - - -

PN111

THE COMMISSIONER: Well, that doesn't matter from my point of view, does it?

PN112

MR ANGELOPOULOS: No.

PN113

THE COMMISSIONER: Because the issue which arises is whether or not the interpretation of the Full Bench in the Metals Casuals decision is in fact binding.

PN114

MR ANGELOPOULOS: Yes. And I will take you to that now, Commissioner.

PN115

THE COMMISSIONER: Yes.

PN116

MR ANGELOPOULOS: Commissioner, if I could ask you to turn to page 16 of this decisis decision which I have just handed up, in the second last complete paragraph. It starts off:

PN117

There is not a developed system of stare decisis in this jurisdiction.

PN118

It then proceeds to - - -

PN119

THE COMMISSIONER: Sorry, page 16?

PN120

MR ANGELOPOULOS: Sorry, page 6.

PN121

THE COMMISSIONER: Page 6.

PN122

MR ANGELOPOULOS: Page 6.

PN123

THE COMMISSIONER: Yes, 6 of 18.

PN124

MR ANGELOPOULOS: Page 6 of 18, yes:

PN125

There is not a developed system of stare decisis in this jurisdiction.

PN126

Then the Bench lists a number of cases which identify that principle. It says, however, about the fourth or fifth line from the end of the paragraph:

PN127

However, it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined ...(reads)... the parties to Commission proceedings with greater certainty.

PN128

Now, as I said before, it is not an absolute principle but they are saying in here there should be a justifiable reason.

PN129

THE COMMISSIONER: I understand.

PN130

MR ANGELOPOULOS: And, again, Commissioner, I just want to - if you do go to page 13 it even deals with the issue of whether another Full Bench, for example, should follow a previous Full Bench decision.

PN131

THE COMMISSIONER: Yes. Look, I don't think you need labour the point.

PN132

MR ANGELOPOULOS: No. But it is just - it is an indication - the principle is there.

PN133

THE COMMISSIONER: There is a principle of comity and the real issue that we will have to deal with here is the question of the decisions themselves.

PN134

MR ANGELOPOULOS: Yes.

PN135

THE COMMISSIONER: And their effects, rather than the desirability of consistency and comity within the Commission.

PN136

MR ANGELOPOULOS: Yes. So the public interest in these circumstances we say are not about competing interests, but it is about an application of what I would describe as the rule of law as established by various Commission Full Bench decisions, when combined together. It is the public interest here of consistency of policy and desirability. Likewise, Commissioner, if - and we say because of this you should from refrain from hearing the application. Now, if there wasn't a Full Bench of the nature of the Metals Casuals case you would be looking simply at principle 10 or the principles and making your determination.

PN137

And in another National construction industry award decision, which is print L1044, at page 4 of that decision, Commissioner - it is a bit hard with the older decision that they are not paragraph numbered, but that is why I have made sure that we have got consistent OSIRIS copies of these decisions. The third full paragraph which seems to be joined to the previous paragraph, which starts:

PN138

We are not satisfied.

PN139

The Full Bench there says:

PN140

We are not satisfied that this employer argument constitutes a proper basis for not applying ...(reads)... We have reached this conclusion for several reasons.

PN141

Then if you go down to the second last paragraph on the same page it says:

PN142

Third, we note that the October 1993 review of wage fixing principles decision ...(reads)... to the application of a safety net adjustment to the awards.

PN143

Now, I am referring to this case, Commissioner, simply for parallel reasons. It is not directly on point in terms of we are not concerning you with the same types of issues, but it is about refrain from hearing. And we are saying that in this instance the Commission should apply the wage fixing principles as elaborated in the Metals Casuals case for the circumstances - the way that the Commission Full Bench decided to apply the wage fixing principles in that case.

[11.08am]

PN144

And perhaps, Commissioner, if I could just refer you to one of the cases on this issue of the public interest, and that is a case which I describe as the ANF case, which is print H8568. This case concerned the original certification provisions which appeared in the Industrial Relations Act section 115. First, I would like to take you, Commissioner, to the bottom of page 3 where subsection 5 of section 115 starts off, and it says:

PN145

Certification of the agreement shall not be taken to be contrary to the public interest merely because the agreement is inconsistent with general Full Bench principles.

PN146

Then on page 7, the very top paragraph, the Commission considers subsection 5 and says:

PN147

Subsection 5 of section 115 makes it clear that the public interest criterion on this section is something other than mere consistency with Full Bench principles.

PN148

And there is an explanation. Now, the differing issue here, Commissioner, is that there is a statutory provision which extends the scope of public interest to say it is beyond Full Bench. We are not in the same situation here; the public interest that you should be applying the Full Bench principles.

PN149

THE COMMISSIONER: Okay. So your submission is that insofar as you make out a case that the Commission should refrain from further hearing or dealing with this matter on the grounds of the public interest, that that is confined exclusively to your proposition that the Commission constituted single member cannot determine whether or not the application constitutes a special case?

PN150

MR ANGELOPOULOS: Well, because it cannot constitute, it cannot entertain those parts of the application which, on their face - - -

PN151

THE COMMISSIONER: Well, it should not.

PN152

MR ANGELOPOULOS: Yes, it should not.

PN153

THE COMMISSIONER: It should not, because only a full Bench can make the decision as to whether or not the application as made out constitutes a special case.

PN154

MR ANGELOPOULOS: That is right.

PN155

THE COMMISSIONER: And that is the public interest point, simpliciter.

PN156

MR ANGELOPOULOS: Yes.

PN157

THE COMMISSIONER: Right.

PN158

MR ANGELOPOULOS: That is it in a nutshell, Commissioner. It is about - the public interest is about applying Full Bench principles, when you combine the safety net - - -

PN159

THE COMMISSIONER: I understand that. That helps me; I do not have to look any further than that.

PN160

MR ANGELOPOULOS: Yes.

PN161

THE COMMISSIONER: Yes.

PN162

MR ANGELOPOULOS: And again, Commissioner, it is not about - in this case, we are not talking about value judgments, as you would with most refrain cases which concern, for example, State award, Federal award issues. If I can now take you, Commissioner, to the union's response, being Commissioner Cargill's and Commissioner Whelan's decisions. Commissioner, I have not made copies of those decisions, but I think the union may have, or you may already have them.

PN163

THE COMMISSIONER: Well, I am familiar with them.

PN164

MR ANGELOPOULOS: First, Commissioner, if I can take you to Commissioner Whelan's decision, which in time is the latter decision.

PN165

THE COMMISSIONER: But, with all due respect, your case relies entirely on the Metals casual decision, doesn't it? And if you are right, whatever single members have done is irrelevant.

PN166

MR ANGELOPOULOS: Yes, it is, Commissioner, and what I simply want to identify in these cases is where - how the facts are different, if you want to consider them at all, and also the - - -

PN167

THE COMMISSIONER: But you are saying - - -

PN168

MR ANGELOPOULOS: - - - error that has been - some errors which identify in the Commissioner making the suppositions which they have in proceedings to deal with these cases.

PN169

THE COMMISSIONER: Yes, all right. I will hear you on it, but it just seems to me that either the declaration that you rely on of the Full Bench which decided the Metals casuals case is an absolute and binding decision, or it is not.

PN170

MR ANGELOPOULOS: Mm.

PN171

THE COMMISSIONER: I suppose what you are saying is, well, if you find that it is not, do not follow the logic of these decisions.

PN172

MR ANGELOPOULOS: That is it, Commissioner, and I want to identify where I think the logic fails in those decisions, as well.

PN173

THE COMMISSIONER: All right, go ahead.

PN174

MR ANGELOPOULOS: Perhaps, as I said, I will take you first to Commissioner Whelan's decision, and at paragraph 5 - the reason I do is because that decision applies Commissioner Cargill's decision. Commissioner Whelan, at paragraph 5 of her decision, says:

PN175

In light of that decision of the President not to establish a Full Bench, I have adopted the approach taken by Cargill C in a similar matter and have dealt with the application in accordance with industrial principles and the general industrial merits of the case.

PN176

What I say, with due respect to Commissioner Whelan, is that there is little value in that decision, because it does not analyse why or why not she follows Commissioner Cargill's decision.

PN177

THE COMMISSIONER: Well, possibly for the same general reason of comity that you suggested before.

PN178

MR ANGELOPOULOS: But that is a single member decision. And she was aware, Commissioner, that the Metals casuals case was in existence, because she does refer to it in paragraph 46, and she does cross-reference back to paragraphs 42 to paragraph 50 of the Metals casuals case, the latter being the one I read out to you before. Perhaps the only other interesting feature of that case, Commissioner, is in paragraph 47. She does identify that the union made a submission that the application was remedial in nature.

PN179

But that again, I say, Commissioner, or I submit, is part and parcel of the special case assessment. That is, if a Full Bench determines that it is not a special case and therefore is remedial, then consequences flow. But the special case is the first step; is this or is it not? But what is interesting in paragraph 47 is that the Commissioner notes that the union made that submission but the employers did not deal with it or respond to it, so therefore she proceeded to deal with the merits of the case.

PN180

In Commissioner Cargill's decision, at paragraph 25, the Commissioner identifies what is being sought and the principle. And at paragraph 26 she makes this comment:

PN181

In the ordinary course of events, the principles would constrain my role as a single member of the Commission in determining the applications. However, in light of the rejection of the section 107 applications referred to earlier in this decision, it would appear that I am required to proceed to deal with the applications in accordance with industrial principles and general industrial merits of the case.

PN182

And then there is an issue about loading, how to deal with loading, which she says there is no test case standard. I think that a number of matter can be gleaned, and perhaps, Commissioner, what we should - I should say is that the President's determination of the section 107, which is extracted in the decision, is no different to the determination in this instance. It is: I have decided not to establish a Full Bench for public interest reasons. But that is just my rearranging of the words, but that is the effect of it.

PN183

There are a number of things which need to be gleaned. Commissioner Cargill does recognise the Metals casuals case. She recognises its restrictions. But she simply pushes those restrictions to one side because the President has said: I am not establishing a Full Bench.

PN184

THE COMMISSIONER: It is not all that hard to see the logical path that you would follow to that conclusion, with all due respect, if you have a look at principle 10.

PN185

MR ANGELOPOULOS: Yes. Commissioner, but if you actually look - if you actually look at what she says, I have extracted that in my outline, it says:

PN186

It would appear that I am required -

PN187

Now, there is no statement in the President's decision that she is wo required. She makes - she draws her own conclusions.

PN188

THE COMMISSIONER: Yes, but you and I know what is going on there.

PN189

MR ANGELOPOULOS: I certainly do. But - - -

PN190

THE COMMISSIONER: You and I know that what she is saying is that under these circumstances it would be a failure of jurisdiction not to deal with the matter. A failure to exercise jurisdiction not to deal with the matter, either to reject the application, to uphold it or to act in a manner determined appropriate in accordance with the statutory principles.

PN191

MR ANGELOPOULOS: Yes, but likewise, Commissioner - - -

PN192

THE COMMISSIONER: What does she do? Just throw it in the bin?

PN193

MR ANGELOPOULOS: No. Perhaps in hindsight we can look at things and say what she should have done, and maybe in hindsight we could have said the Commission perhaps should have called the parties back and said, the Metals casuals is in existence; I am aware, but what do we do?

PN194

THE COMMISSIONER: Yes, but look, we cannot - the real - we are here required to deal with this matter in a considered and informal way.

PN195

MR ANGELOPOULOS: Yes.

PN196

THE COMMISSIONER: Rather than to speculate on what form of expression that Commissioner Cargill may have chosen for the purpose of publishing her decision.

PN197

MR ANGELOPOULOS: Yes.

PN198

THE COMMISSIONER: I mean, you know very well that there is a serious issue as to having had the application referred back to her by the President, she had to decide whether or not she was obliged to exercise jurisdiction.

PN199

MR ANGELOPOULOS: Mm.

PN200

THE COMMISSIONER: She could not just simply say, oh well, you know, I'll just put that in the filing cabinet.

PN201

MR ANGELOPOULOS: No, no, she could not, Commissioner.

PN202

THE COMMISSIONER: Let dust gather on that.

PN203

MR ANGELOPOULOS: No, no. And I would have thought that natural justice requirements would have required her to say - well, I am using my own terminology - - -

PN204

THE COMMISSIONER: Well, the Act is what I am referring to, not principles of natural justice. There is a statutory duty, is there not, to deal with the matter before her?

PN205

MR ANGELOPOULOS: There is, and there is a duty to act as quickly as possible, but those duties are in part displaced by factors such as refrain from hearing applications.

PN206

THE COMMISSIONER: That is right. Did she have one of those before her?

PN207

MR ANGELOPOULOS: No, she did not, Commissioner. And that is one of the issues, and that is that there was not such an application before her.

PN208

THE COMMISSIONER: Well, exactly. But we are focusing on what the meaning of her decision was, and it seems to me pretty straight-forward to someone who understands the jurisdiction that what she had to address is, you know: it seems I am presented with a problem here.

PN209

MR ANGELOPOULOS: Yes.

PN210

THE COMMISSIONER: What do I do? I have got an application that is properly made before me; as a statutory officer, I am obliged to exercise the jurisdiction conferred upon me under the Act. Now, I may reject the application on the basis that I reach the conclusion that the President's decision means that the matter is not a special case.

PN211

MR ANGELOPOULOS: Mm.

PN212

THE COMMISSIONER: But you have already said that would be inappropriate, because the President cannot decide that.

PN213

MR ANGELOPOULOS: Yes.

PN214

THE COMMISSIONER: So she is then left with this application which does not have a "this is not a special case" entry on it, and she has to exercise jurisdiction.

PN215

MR ANGELOPOULOS: She has to - in my submission, Commissioner, she certainly does have to exercise jurisdiction, but she has to exercise jurisdiction and have regard to the provisions of the Act, the duty to deal with the application, her own informed duties as to what are the consequences of decisions such as the wage fixing principles when - - -

PN216

THE COMMISSIONER: Yes, but this is not an appeal against the - - -

PN217

MR ANGELOPOULOS: No.

PN218

THE COMMISSIONER: - - - exercise of the jurisdiction. We are just discussing the fact that it did not go away when the - - -

PN219

MR ANGELOPOULOS: No, and in fact what appears from the decision, Commissioner, is that it seems that it was never an issue before the parties. They just went an argued the merits. It is something that she actually dealt with by herself. Now, I could be wrong about the point. I have not read the transcript. But it would seem that it was not as live issue between the parties at all. But what I do want to point out from that statement in Commissioner Cargill's decision, is an extract which appears in the Australian Insurance Employees' Union case, which I referred to you earlier, Commissioner - I may not have given that up. I will give it to you now, Commissioner. The citation for that, Commissioner, is (1988) 78 ALR 466.

EXHIBIT #A2 COPY OF AUSTRALIAN INSURANCE EMPLOYEES' UNION CASE

PN220

MR ANGELOPOULOS: And what I wanted to take you to, Commissioner, is line 30 on page 467. There has been discussion just above that - - -

PN221

THE COMMISSIONER: I have got 46 - - -

PN222

MR ANGELOPOULOS: Sorry, it is on the first page, Commissioner. It is the second - - -

PN223

THE COMMISSIONER: On the first - - -

PN224

MR ANGELOPOULOS: No, no, the 469 which appears in the corner is actually just the following page which has overlapped.

PN225

THE COMMISSIONER: I see, all right. So page 467 is actually the - - -

PN226

MR ANGELOPOULOS: The second paragraph on the front page.

PN227

THE COMMISSIONER: Right.

PN228

MR ANGELOPOULOS: There has been some discussion previously about whether something is - whether the President in this instance, for example, went beyond his powers under section 107 of the Act. And at line 30, starting with the second sentence:

PN229

Where reasons are given for a decision, it would be wrong to speculate upon matters beyond those referred to in the reasons which may have motivated the decision.

PN230

Now, the reason I point this out, Commissioner, is because it would appear at least that Commissioner Cargill was actually entertaining the error which has been identified here. We have - she has, like we have - - -

PN231

THE COMMISSIONER: Yes, but this is not an appeal against her decision.

PN232

MR ANGELOPOULOS: No, this is a prerogative writ application against the President's determination.

PN233

THE COMMISSIONER: No, no, these proceedings are not an appeal against her decision.

PN234

MR ANGELOPOULOS: No, they are not. And the only reason I am identifying these issues, Commissioner, as to why I would suggest that if you do consider these cases, why you should not follow these cases.

PN235

THE COMMISSIONER: Yes, you are distinguishing them.

PN236

MR ANGELOPOULOS: These are the distinguishing reasons, that you cannot make that supposition she has made, and this case in the High Court says it would be wrong to read anything more in the decision than what actually appears. And, as I said, the President's determination in that case and this case were almost identical.

PN237

THE COMMISSIONER: Yes. Well, with all due respect, you have got to into account the context and nature of those proceedings in the High Court.

PN238

MR ANGELOPOULOS: Certainly, I understand that, Commissioner, and that statement of principle which is referred to in the High Court is not simply solely about section 107, but is a broader statement of reading something more into the decision than what is actually said in the decision. In my outline, Commissioner, I deal with what are the consequences if you do decide to refrain from hearing the matter. What can you do in any event? It would be my submission, Commissioner, that in effect your hands are tied. It would also be my submission, Commissioner, that - - -

PN239

THE COMMISSIONER: If I am against you, it seems to me that the only logical conclusion is that I am obliged to exercise the jurisdiction to determine the application in accordance with the statutory requirements.

PN240

MR ANGELOPOULOS: Yes.

PN241

THE COMMISSIONER: And the statutory requirements and the law that surrounds the operation of the Act are such that I would be required to apply the Commission's statement of principles, and whatever other relevant considerations arise.

PN242

MR ANGELOPOULOS: Yes.

PN243

THE COMMISSIONER: How can that be characterised as having one's hands tied, if I am against you?

PN244

MR ANGELOPOULOS: No. That is - my submission was if you were not against us. That is where my submission comes from.

PN245

THE COMMISSIONER: Well, if I accept your submission that only a Full Bench can determined whether or not a matter is a special case.

PN246

MR ANGELOPOULOS: Yes.

PN247

THE COMMISSIONER: I agree with you.

PN248

MR ANGELOPOULOS: Yes. But what I want to alert you to, Commissioner, is that if - - -

PN249

THE COMMISSIONER: That is the issue though, isn't it?

PN250

MR ANGELOPOULOS: That is the issue.

PN251

THE COMMISSIONER: Whether or not that is the case, and there is a statement to that effect in the Metals casuals decision, but you have identified individual member decisions which have distinguished it.

PN252

MR ANGELOPOULOS: Mm.

PN253

THE COMMISSIONER: Either directly or indirectly.

PN254

MR ANGELOPOULOS: Yes.

PN255

THE COMMISSIONER: To my knowledge, none of those have been overturned on appeal.

PN256

MR ANGELOPOULOS: No.

PN257

THE COMMISSIONER: In fact they have not been appealed, I do not think.

PN258

MR ANGELOPOULOS: I do not believe they have.

PN259

THE COMMISSIONER: So, I mean, what that means we do not know. That does not let me off the hook though.

PN260

MR ANGELOPOULOS: Sorry, I did not catch that?

PN261

THE COMMISSIONER: That does not let me off the hook.

PN262

MR ANGELOPOULOS: No, it does not, that is right. You have to make your own independent decision based on everything that is before you, Commissioner.

PN263

THE COMMISSIONER: So I have to decide whether it is possible to distinguish that decision, or, if it is not, whether or not it should be followed.

PN264

MR ANGELOPOULOS: Yes, Commissioner. In paragraph 12 of the outline of my oral submissions, I turn to a potentiality, and maybe it is just nothing more than a potentiality, and that is that if you feel that my submissions - if you decide that my submissions are correct, do you, Commissioner, have the power perhaps to go back to the President and ask him to reconsider, to re-establish a Full Bench? Because of the nature of your role of conciliation and arbitration, I do not see you as having, or perhaps even the union remaking an application. But where I see the problem lying - - -

PN265

THE COMMISSIONER: Well, they will probably have to deal with the consequences of this matter if it goes your way.

PN266

MR ANGELOPOULOS: Sorry, Commissioner, I did not catch your - - -

PN267

THE COMMISSIONER: Wouldn't it be logical that they be the party or it would be them that would - - -

PN268

MR ANGELOPOULOS: Yes, yes.

PN269

THE COMMISSIONER: - - - would really have to confront what the possibilities were in order to refresh the - - -

PN270

MR ANGELOPOULOS: The application.

PN271

THE COMMISSIONER: - - - the Commission dealing with the substantive issues of the application, you know, set in train in a procedural sense.

PN272

MR ANGELOPOULOS: Yes.

PN273

THE COMMISSIONER: And only the conditions of employment that are in dispute.

PN274

MR ANGELOPOULOS: Yes, yes. It is probably more appropriate to say could the union re-ignite its application to the Full Bench. I would say while they may have that power, I would say that the president does not have the power to re-determine, and maybe that is not an issue for the Commission here today. And it ties in with the principle of functus officio. But I could perhaps leave that to some other time, if the issue ever arises, Commissioner, but it is just as an aside issue.

PN275

THE COMMISSIONER: It is a pretty adventurous submission, isn't it, that a party makes an application to the Commission, it seeks to present it as a special case, and in accordance with the wage fixation principles or the statement of principles, it is referred to the President who says no, it is not necessary that this matter be dealt with by a Full Bench. That means that the application cannot be heard.

PN276

MR ANGELOPOULOS: It is, it is, Commissioner, but we are - - -

PN277

THE COMMISSIONER: That is a pretty adventurous submission.

PN278

MR ANGELOPOULOS: It is adventurous in the sense of it has never been done before.

PN279

THE COMMISSIONER: Imagine how that one would - have you imagined how that one would run in the High Court?

PN280

MR ANGELOPOULOS: I could, Commissioner. I actually could, in the technicalities of the High Court, I think I could. It is adventurous in this sense, Commissioner, and that is that it has never been done before. But we are not pulling rabbits out of hats. We are relying on the very strong foundation of the wage fixing principles with the Metals casuals case.

PN281

THE COMMISSIONER: Yes, I have always - yes, I am not suggesting you are attempting some sort of magical trick, but it just seems to me that the notion that an application can be made to this Commission that is determined, substantially determined, as opposed to procedurally dealt with by a decision that it will not be referred to a Full Bench.

PN282

MR ANGELOPOULOS: It is unusual, there is no doubt about it - - -

PN283

THE COMMISSIONER: It is a pretty extraordinary proposition.

PN284

MR ANGELOPOULOS: Yes, it is not the way things have occurred in the past, but I would say, Commissioner, that that does not stop us, of course, in making the submission, and having regard to what we say is the law supporting us, it is a very valid submission to make, although I do acknowledge that it does hamper some of the Commission's operation. There is no doubt about that.

PN285

THE COMMISSIONER: Well, that is - I doubt that that is right actually, with all due respect; it might actually streamline the Commission's operations enormously.

PN286

MR ANGELOPOULOS: It may.

PN287

THE COMMISSIONER: Applications could simply be decided by, you know, an application for a reference under 107, and if it succeeded in going to a Full Bench, then it could be heard and determined.

PN288

MR ANGELOPOULOS: And in future - - -

PN289

THE COMMISSIONER: And if it did not succeed, well, that would be the end of the matter.

PN290

MR ANGELOPOULOS: That would be the end. And it may be, Commissioner, that if you were to find in our favour, when other unions or employees are making applications for reference to a Full Bench, they might add an additional ground in that if a Full Bench was not to be established, that these aspects of our application could not be heard. It might be another reason to establish a Full Bench. But then we are getting into what might be. Commissioner, I have just been alerted to - - -

PN291

THE COMMISSIONER: You are going to tell me about section 108.

PN292

MR ANGELOPOULOS: Yes, section 106, subsection 2 of the Act. This concerns allowable award matters.

PN293

THE COMMISSIONER: I am sorry, I thought you had probably twigged to the possibility that section 108 might provide a path through which this matter could arrive at a Full Bench.

PN294

MR ANGELOPOULOS: And that is another possibility, that that sort of an issue could be - the union could have made an application for it to deal with these sort of issues, under section 108.

PN295

THE COMMISSIONER: Yes. And the 106 argument really comes down to whether or not - - -

PN296

MR ANGELOPOULOS: The 106, yes, is about another Full Bench basically referring another Full Bench decisions about allowable award matters.

PN297

THE COMMISSIONER: I understand that. But you would argue that the application seeks the exercise of a power inconsistent with the principles established by a Full Bench.

PN298

MR ANGELOPOULOS: Yes.

PN299

THE COMMISSIONER: But that is your argument about principle 10, just reflecting the statutory context.

PN300

MR ANGELOPOULOS: Yes. Commissioner, that was - that is our major - that is our first ground and our major ground. Perhaps let me alleviate the fact that our further submissions will not be anywhere near as detailed as these, because that is our substantial ground. The second ground that we put in our original submissions, Commissioner, was that - is a temporal ground, and that is that this application - well, what the Commission should consider is whether these matters are more appropriate for enterprise bargaining as opposed to a safety net.

PN301

When we filed our submissions, Commissioner, we referred you to that part of the Metals casuals case which considers those issues, and that appears in paragraph 48 of the Metals casuals case. And again we turn to that case:

PN302

In determining what constitutes a special case, the Commission considers whether these matters should be more appropriately dealt with by enterprise bargaining.

PN303

And we put the submission, Commissioner, that as a preliminary question this issue should be addressed, whether it is more appropriate for bargaining or for safety nets. Now, the union has put - has identified the number of decisions where they identify issues of a safety net, and there is no denying, Commissioner, there is a balance to be struck between what is appropriate for bargaining and what is appropriate for the safety net. And this ultimately is a fine line to be drawn.

PN304

But what is also interesting, Commissioner, is that if the union had actually filed its submissions for the application to vary, together with its witness statements under the proposed original timetable, we would have expected at least to have some evidence of this issue. We have none, so we are still left in the dark about what attempts, if any, they have made. And again this issue about whether something should be the subject of bargaining over the safety net was again identified by Commissioner Whelan herself in the decision I referred you to before, in the Graphic Arts Award case, where she says at paragraph 48:

PN305

Further, the parties did not choose to argue that the matter was one more appropriately dealt with by enterprise bargaining.

PN306

And then this case concerned provisions concerning Workcover. Now, I am not saying that she makes it as an absolute statement, but she raises it that this must enter the mind of the Commission and of the parties. Now, until we get some evidence from the union that it cannot bargain in all of these issues, the Commission should not be considering this as a safety net type issue. And that is why I said it is purely a temporal refrain.

[11.38am]

PN307

That is the second ground, obviously much shorter than the first one. The third ground, Commissioner, arises out of our second lot of submissions and that is that the award continues to be an interim award and continues to be unsimplified. I am not going to repeat what I have put in those submissions because I think I have dealt with those issues fairly comprehensively in what I wish to say. But I do just want to highlight some short aspects from those additional submissions. We identify first that the award continues to be an interim award made in 1995.

PN308

We are now in 2002. I sort of - I am wondering why it continues to be an interim award in 2002. Now, if I could hand up simply - I don't intend to take the Commission through the original award as it was made. Commissioner, it appears that we don't have the original award. What I will do is I will - and I could arrange to get a copy to Ms Frenzel if she needs a copy of it. I assume you probably have it in the offices in any event. I am not going to go through it at this stage; we apologise. But I will give the one copy that I have up to the Commission.

PN309

The original award as it was made seems to be a very comprehensive interim award and certainly on its face was designed to apply with the first award principles. Now, there is not much - one of the difficulties I guess I have had - well, in my mind is why it was called an interim award when it seemed not to do with specific issues. Certainly it was an award which was made about transferring Victorian employees covered under an old Victorian award to the Federal system. It was designed to be a status quo type award.

PN310

There was actually issues, as I will identify shortly in transcript from that time, as to what status quo actually meant. It seems - and perhaps if I could hand up to the Commission a copy of a transcript from that time.

PN311

THE COMMISSIONER: We will mark this for identification.

PN312

MR ANGELOPOULOS: Yes.

MFI #A3 TRANSCRIPT

PN313

THE COMMISSIONER: I don't mark the prints because we use the print numbers as the mark.

PN314

MR ANGELOPOULOS: No, that is right. If I can take you to page 44 of the transcript, Commissioner, the first reference to Mr Blake, the second - the last complete sentence of that first paragraph. Mr Blake says:

PN315

We seek an interim award for a period of three months and we say our application is consistent with the current principles of this Commission.

PN316

Now, why an interim award for three months appears to be designed to allow for minimum rates adjustment, structure efficiency, principal changes - as I attach to my secondary - my supplementary submissions, Commissioner, I attached the history of the award variations and what becomes quite apparent from it is apart from personal carer's leave, safety net adjustments, there has been a minimum rates adjustment in the award.

PN317

We are from the employer's point of view unsure what, if anything, else needs to occur from the union's point of view to make this interim award, leaving aside simplification, because that is part and parcel - separate to make this a final award. And we say that it has been around for what now, seven years. Let us get the job done, let us get this priority happening first. The next element, Commissioner, is the issue of simplification.

PN318

Perhaps, Commissioner, if I just - I don't want to go through all aspects of the transcript, but one of the matters which I raised in my supplementary submissions is that we did not voluntarily come to the Federal system. A log of claims was served upon us, a finding made, and as a result we then fell within the Federal jurisdiction. Of course, subsequently an award was made, which is this award. I don't intend to take the Commission through it all but I would like to hand up a copy of the dispute finding and the log of claims.

EXHIBIT #A4 DISPUTE FINDING AND LOG OF CLAIMS

PN319

MR ANGELOPOULOS: What I just want to highlight, and I don't intend at this stage to take you through every line which I refer to, but on page 5 of my outline of oral submissions I identify the fact that we had not voluntarily come to this system. First, in terms of the log of claims and the dispute finding they appear as paragraphs 16(b)(i), being the log of claims and the dispute finding, as (ii) about it being an interim award with part settlement in Victoria and (iii) identified the parts in the transcript where once we got here was, okay, we will have the award as it existed in Victoria but we want the status quo.

PN320

And there is these lines and pages identify that there was clear disputation between the parties as to what status quo meant. And in fact the transcript also reveals that the old Victorian award, which on my recollection was made in 1988, had not in fact been varied for a large number of years in fact. But the other issue about this aspect is that in terms of maintaining the status quo the reality is the log of claims was served in early January - in early 1994, the exact date being May 1994. Of course, we are aware that the - when the Employer Relations Act - when it did exist as of 1 March 1993, according to my recollection, killed all the Victorian awards, to use that word, or award - Victoria stopped operating.

PN321

So we were in a period of perhaps up to at least a year and two months before the union got off its hind legs and basically served the log of claims so you could start bringing these people into the Federal system. The other aspect is the aspect of the unsimplified award, Commissioner. I have detailed that in my written submissions as I have alerted yourself, Commissioner, and my friend in those written submissions. There was some issue, or there was a discussion about that raised on 30 August before yourself.

PN322

What I would say, Commissioner, is that there is a balance that needs to be struck between the duty to act as quickly as possible as section 110(1) of the Act and the Commission's duty to as soon as practicable - sorry, I got tongue tied there - simplify the award. And, likewise, the Commission is under section 110(2)(c) under duty to act according to - act in good conscious without technicality and legal form. I do want to make clear, Commissioner, I am not casting any aspersions that the Commissioner has not done his job in simplifying the award.

PN323

What I am simply saying is that now we have alerted you to all these issues we would be requesting the Commission on its own motion bring about the simplification process and do that before we start entertaining the union's application to vary. Now, in - the obligations said in item 51 which requires the Commission to as soon as practicable simplify the awards, was identified and explained by the High Court in the Pacific Coal case.

EXHIBIT #A5 HIGH COURT CASE OF PACIFIC COAL

PN324

MR ANGELOPOULOS: At page 417, the first full paragraph, Gummow and Hayne JJ say:

PN325

The understanding of the operation of item 50 that we have described is reinforced when item 51 is considered. The duty which item 51 ...(reads)... to remove provisions that cease to have effect under item 50.

PN326

Then in brackets:

PN327

(Item 51 sub 2). These provisions of item 51 are intended then to make the award in the sense of the written record which the Workplace Relations Act ...(reads)... of employees in relation to allowable award matters.

PN328

Then the last sentence:

PN329

To adopt the expression used during oral argument item 51 sub (1), sub (2) and sub (3) are provisions to "tidy up" the award.

PN330

All I want - this, of course, Commissioner - this identifies how the High Court sees the operation of item 51. And the duty is to do something as soon as practicable. In a case which concerns Accident Compensation in Northern Territory, referred to as McMillan v Territory Insurance Office, while I know this case has nothing to do with industrial relations powers, and I will give you a full citation, Commissioner.

EXHIBIT #A6 McMILLAN v TERRITORY INSURANCE

PN331

MR ANGELOPOULOS: [1988] NTSC 58; 1988 57 NTR 24. A like word was used in that legislation "as soon as practicable". At the bottom of page 25, which is the second page, the last paragraph, Gallop J in the Northern Territory Supreme Court says:

PN332

My present task is to ascertain the meaning of the phrase "as soon as practicable" ...(reads)... where it falls to a tribunal to decide what is reasonable.

PN333

Now, I just alert you to this, Commissioner, simply to indicate that what is reasonably practicable one must regard to all the circumstances of the case.

PN334

THE COMMISSIONER: According to the Motor - - -

PN335

MR ANGELOPOULOS: The most - - -

PN336

THE COMMISSIONER: Who is deciding this, the Motor Accidents Compensation Appeal Tribunal?

PN337

MR ANGELOPOULOS: Well, it is an appeal from there to the Supreme Court of the Northern Territory.

PN338

THE COMMISSIONER: Yes, that is right, I am sorry. It is the Supreme Court of the Northern Territory.

PN339

MR ANGELOPOULOS: Yes.

PN340

THE COMMISSIONER: About motor accidents under the relevant legislation.

PN341

MR ANGELOPOULOS: That is right. And I do acknowledge that words have to be read in the context in which they appear, there is no denying that.

PN342

THE COMMISSIONER: In the particular Act.

PN343

MR ANGELOPOULOS: Certainly. But I think the one positive statement from this judgment about it is - he says that it is coloured by (a) the Act and (b) in the circumstances. And I think what I am saying and what I submit is the circumstances are such that we are now - I think actually I have put the number of months in my original submissions, but off the top of my head I don't recall. But from the end of that interim period we are well over and I think that this practicability would require us to act to get the simplification up and running.

PN344

THE COMMISSIONER: Yes, well, I don't want to comment on the issue of the simplification of the award in the course of the hearing, but - I mean I see the logic of what you say but really decisions from the Motor Accidents Tribunal or the Supreme Court of the Northern Territory about motor vehicle accidents in the Territory - in this case it would be like throwing confetti to the elephants, isn't it?

PN345

MR ANGELOPOULOS: Yes and no, Commissioner. I mean as I said, look, it is about the question as to what extent is that statement applicable in this jurisdiction. And what I submit, your Commission, is the statement is sufficiently a broad statement.

PN346

THE COMMISSIONER: I don't have any quarrel with the common sense of the Supreme Court of the Northern Territory.

PN347

MR ANGELOPOULOS: And it is a common sense statement.

PN348

THE COMMISSIONER: It is more the sort of contextual issue that I am drawing attention to.

PN349

MR ANGELOPOULOS: That is right. And I just want to draw the parallels that you have to look at it in the contextual issue. The last one, Commissioner, is what I have described myself as the union's conduct or delay, which I say - I submit - - -

PN350

THE COMMISSIONER: Has there ever been a decision where that of itself has been sufficient to exercise the 111G(3)?

PN351

MR ANGELOPOULOS: I don't believe, Commissioner. Again, we may be potentially into new territory and establishing new principles on this issue. But then again, as I said, it doesn't - it is a situation which has arisen and I would make - I put the submissions not only in the alternative but also conjunctively as well. These grounds - for example, when - as I said to you earlier before, Commission, when I identified the issue about enterprise bargaining I noted the fact that had the union actually filed submissions we may have had some sort of guidance as to the issue of could this be dealt with by enterprise bargaining. They do interrelate to each other

PN352

Again, I don't want to go into - I did hand up to the - when we filed the additional submissions we attached a timetable.

PN353

THE COMMISSIONER: Yes, I saw that, that was very helpful I might say, thank you.

PN354

MR ANGELOPOULOS: It actually helped me on a number of levels, apart from actually dealing with this issue, but also trying to work out the chronology and the history of the matter.

PN355

THE COMMISSIONER: Chronologies are always very useful.

PN356

MR ANGELOPOULOS: They are. And I would just perhaps like to highlight just some aspects of it. The first is the letter from PWC on behalf of the employers to the union regarding the progress of the claim. These documents are documents which you may have in your possession already, Commissioner.

PN357

THE COMMISSIONER: Yes, I think I do.

PN358

MR ANGELOPOULOS: But it would be simple if I just hand them up again.

PN359

THE COMMISSIONER: I was looking at it just a moment ago. I am just trying to find where I put it, the chronology.

PN360

MR ANGELOPOULOS: That is all right, we have got another copy for you, Commissioner.

PN361

THE COMMISSIONER: Yes, I have it, it is attachment A, isn't it?

PN362

MR ANGELOPOULOS: Yes. It is the 1 October 2001 letter.

EXHIBIT #A7 LETTER FROM PWC TO THE UNION DATED 1 OCTOBER 2001

PN363

THE COMMISSIONER: Go ahead.

PN364

MR ANGELOPOULOS: On the first page of the letter we identify what the contents of this letter is going to be about so I don't want to go through then. On page 3, about two-thirds of the way down, in bold we identify:

PN365

In terms of process we consider that the Commission should fix a directions hearing in the next week.

PN366

This is in the context of what has just gone on before, where we say we are lodging an application to refrain from hearing, and in fact the application was attached to this letter according to my understanding. Further down we say - because the refrain from hearing application was lodged so quickly after the hearing before yourself, Commissioner, 30 August compared to 1 October, they - you had set a timetable for the substantive application and we note that because we were lodging an application to refrain from dealing with that application that some of that timetable may need to be altered.

PN367

But we also say on page 3 further down:

PN368

Preparation for the substantive issues would involve considerable time and effort on our client's part ...(reads)... raised with the union's application.

PN369

Then on the top of the following page we suggest possibly that the actual hearing date that you originally identified for the hearing of the substantive application be changed to a hearing date for the refrain from hearing. From the chronology initially it was set for 15 October, so two weeks before then. What is also clear from the chronology and the documentation is that you adjourned the hearing date for the substantive but maintained the directions for the substantive application. And, again, on the very last page, on page 5, we indicate that we request that the substantive be adjourned pending the application which we - the hearing that we are actually having today in April 2002.

PN370

Now, on 4 October, Commissioner, you adjourned the substantive application hearing date, maintained the directions. You also issued another notification for this particular hearing originally - sorry, which was originally for 15 October to be adjourned with the new hearing date in November and with a revised timetable. Now, it is not apparent, of course, from the documentation as to why you did this, but it is apparent from discussions between Mr Levin and Ms Frenzel that 15 October was unsuitable for her so, therefore, there may have been some contact between the Commission and Ms Frenzel; I am not aware.

PN371

But as soon as the Commission became aware of the unsuitability of that date, the date was adjourned. Then we get to a point, Commissioner, where the union quite clearly fails to comply with any direction for a very large period of time, both in respect of its own application and this application itself. And Price Waterhouse Coopers Legal on behalf of the employees write both to yourself and to the union. If I could just hand up the letter of 4 October from Price Waterhouse Coopers to my friend.

EXHIBIT #A8 LETTER FROM PRICE WATERHOUSE COOPERS TO MS FRENZEL DATED 4 OCTOBER

PN372

MR ANGELOPOULOS: By 4 October the union had already not complied with the Commission's directions for filing its submissions of witness statements for an application to vary. This - - -

PN373

THE COMMISSIONER: Have you had that in the event.

PN374

MR ANGELOPOULOS: Sorry, Commissioner.

PN375

THE COMMISSIONER: Have you had that time in the event?

PN376

MR ANGELOPOULOS: Well, we have had the time for the section 113 because it has all been - the result and effect of everything that has happened is that the directions - given the effect counsel ..... directions for the timetabling of the section 113 application, so time never ran - started running.

PN377

THE COMMISSIONER: But innocence, regardless of the details of the direction, insofar as any notification of the union's case is concerned for the purposes of today's proceedings, you are not in any way prejudiced.

PN378

MR ANGELOPOULOS: No, we are not making a submission based on prejudice at all.

PN379

THE COMMISSIONER: No, no, I understand that.

PN380

MR ANGELOPOULOS: No.

PN381

THE COMMISSIONER: I was just checking.

PN382

MR ANGELOPOULOS: No, no, we don't make that allegation at all. But we get to a point where on 4 October they are late. We confirm that they are supposed to occur by next Tuesday. Next Tuesday arrives and again nothing happens and on 22 October we write to yourself, Commissioner, about that fact.

EXHIBIT #A9 LETTER TO COMMISSIONER LEWIN DATED 4 OCTOBER

PN383

MR ANGELOPOULOS: Then on 1 November - then we get to 9 October which would have been the date when the union was - on the amended timetable to file the submissions under the section 113 and then has not done so. Perhaps then if I could just jump ahead, Commissioner, to the union's letter to yourself dated 1 November.

EXHIBIT #A10 LETTER TO COMMISSIONER LEWIN FROM THE UNION DATED 1 NOVEMBER

PN384

MR ANGELOPOULOS: If I could just first take you to the second paragraph of that letter, the second last - the last complete sentence where the union says:

PN385

It is with regret we write to apologise that we have failed to comply with the directions for both applications.

PN386

And then two paragraphs further down they are saying we are still going to have further problems anyway because of other supervening and intervening events. Now, what I submit is this, Commissioner, on that issue. We understand that the Ansett dispute was a big dispute; we are not saying that all had - they had to walk away from the Ansett dispute to deal with this application. But the fact is, Commissioner, that when this matter was called on by you on 30 August last year Ms Frenzel made it very clear that this matter needed to proceed, if not urgently, within a very timely fashion.

PN387

Now, as I have said, the Ansett issue was an important issue, but that does not mean, for example, that someone else in the union or perhaps their lawyers could not have dealt with this on their behalf and just delay the matter further. If this was so important to them that they deal with it expeditiously as first said, they could have actually allocated this responsibility to someone else if in Ms Frenzel's competing obligations she couldn't attend to this immediately.

PN388

So, therefore, if you look at the history of this matter the union's submission on 30 August that there is some priority that needs to be attached to this application just falls by the wayside. Likewise, Commissioner - so we get to the point where we in effect file our submissions in October last year and the union's submissions in respect of this application, because of the Commission has accommodated what the union wanted, get to us on 1 March within the amended timetable.

PN389

Now, I understand, Commissioner, that the last adjournment of the hearing date was on the Commission's own initiative and not by the union's own conduct. However, I would say this even on that point, and that is that the Commission is fully aware that the longer this takes if the Commission - however, the Commission - if the Commission, for example, finds in favour of itself over us it will delay its application "for a very long period of time". There was nothing stopping the Commission or the union - I apologise - notifying the Commission to say, look, a month is too long, is there any way we could get another Commissioner to deal with this issue in the interim period?

PN390

Because the more this is delayed the more their own application to vary is potentially delayed and there is no doubt about that. I mean ultimately if you found in our favour it means that they can't get off the ground. But if you didn't it meant - from an application that was originally supposed to have been heard in October - I think 29 October last year, we now get to a point in April 2002 when we still don't even have a hearing date. They are my submissions, Commissioner.

PN391

THE COMMISSIONER: Thank you very much, Mr Angelopoulos. Ms Frenzel.

PN392

MS FRENZEL: Commissioner, could I just ask for a 10 minute adjournment?

PN393

THE COMMISSIONER: Yes, certainly.

PN394

MS FRENZEL: Thank you.

SHORT ADJOURNMENT [12.08pm]

RESUMED [12.31pm]

PN395

THE COMMISSIONER: Yes, Ms Frenzel?

PN396

MS FRENZEL: Thank you, Commissioner. Commissioner, the employers in this matter, in their section 111(1)(g)(iii) application attempt to use four grounds to convince the Commission as to why their application ought be granted. Two of those grounds are the subject of submissions which were previously filed with the Commission in October of last year, and the other two are the subject of submissions filed by the employers last week. I might deal firstly with the two grounds that were the subject of the submissions filed with the Commission in October of last year.

PN397

Those two grounds, in precis form, are that firstly, that the nature of the application to vary by the union, and its contents, constitute, in part at least, and we say it is in part, claims which would be characterised as being claims in excess of the safety net, and therefore, principle 10 of the wage fixing principles of this Commission ought apply. The second part of their submissions from October of last year deal with the issue of the principle that enterprise bargaining, or attempts to reach agreement with employers, should take precedence in matters such as these, and although they don't take the Commission into any great detail about exactly how enterprise bargaining would occur with such general issues, they put that point to you in any event.

PN398

The union, and I will come back to the timing issues later in my submission. But the union complying with the revised directions of the Commission filed and served its outlines of submission with respect to those two grounds on 1 March of this year. Now, the inescapable point about the wage fixing principles is this, and it was a point that you discussed with Mr Angelopoulos at some length. If the - if an application is made to vary, there is an issue about whether or not some or all of the claims are in excess of the safety net, as we understand it. And then an application is made to the President under section 107, which is then referred back to a Member of the Commission.

PN399

My friend's submission is that that is the end of it. That the application dies what I would describe as being a very unnatural death. And the union, or indeed the applicant in such matters cannot press their claims any further. Now, the submission, as I have put in my outline, is simply incorrect. For the very simple reason that there is an obligation on the Commission to deal with these matters, and that was the discussion that you had with him, in the event that the matter is referred back to a single Member of the Commission.

PN400

In my outline of submissions I took the Commission to two decisions of this Commission dealing with that principle. The first one, which I will seek to tender now, because I am not sure that my friend actually did tender them, is the decision of Commissioner Whelan, to be found at Print PR914080. And that is a matter of - determined on 5 February 2002. And the other one is the decision of Commissioner Cargill, found at Print PR913088 of 9 January 2002. Both of those decisions are referred to in the union submissions.

PN401

THE COMMISSIONER: Thank you. Do you have anything to tender in the near future? In the next five minutes or so?

PN402

MS FRENZEL: No, Commissioner.

PN403

THE COMMISSIONER: All right. Just wait one minute, will you? Go ahead, Ms Frenzel. Well, I have just asked my Associate to retrieve the decision that I issued, which deals with this issue. Because I think I want everybody to have the opportunity to address it today.

PN404

MS FRENZEL: Thank you, Commissioner.

PN405

THE COMMISSIONER: Since I raised it earlier, when Mr Angelopoulos was - - -

PN406

MS FRENZEL: I might deal firstly with the decision of Commissioner Cargill which actually went to the issue of casual loadings. And it is important for the Commission to note that the response by the President with respect to the section 107 application in this matter, and indeed with the matter before Commissioner Whelan, is identical to the response that the LHMU received with respect to its section 107 application. And that is set out in paragraph 6 of Commissioner Cargill's decision. The response is identical.

PN407

What the President says is that:

PN408

... having regard to the subject matter, and the reasons for the applications, pursuant to section 107 of the Act, I am not of the opinion that, in the public interest, a Full Bench should be constituted to deal with the matters.

PN409

Commissioner Cargill then makes the observation, later on her decision, which my friend took you to, about her then being placed under an imperative, if you like, to deal with the matters which were the subject of the application. The same can be said for Commissioner Whelan's decision in a nutshell, because that is exactly what it says as well. The decision of Commissioner Whelan relies upon the decision of Commissioner Cargill, and also says that she intended to, and did deal with, the application in accordance with industrial principles, and the general industrial merits of the case. And that case was in relations to accident make up pay. So for my friend to say that as soon as a section 107 reference is, if you like, rejected by the President of the Commission, that the claim cannot be prosecuted, is wrong. There are examples of it being dealt with, and the Commission has already alluded to a third one. Now, we don't intend to make submissions about the exchange between yourself and my friend regarding who can determine a special case. It appears perfectly obvious to us that the - that a Full Bench determines a special case, and that is clearly set out in paragraph 50 of the Metals Casuals decision, found at Print T4991. My friend, however, didn't take you to the full extent of that paragraph. He quoted the first part, but didn't go on toe say this.

PN410

And I will quote from the beginning of paragraph 50:

PN411

In our view special case as used by principle 10 is not a self-defining term. The identification of a special case is reserved to a Full Bench level of determination.

PN412

That is not disputed:

PN413

It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary.

PN414

Now I will stop there for one moment to also take the Commission back to the previous two decisions I have referred to, to demonstrate that in those two cases a case by case approach was taken as well, albeit by a single Member of the Commission:

PN415

The circumstances of the award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter the special case requirement entails that the AMWU has a task of satisfying the Commission that there are sufficiently compelling reasons for awarding as minimum rate conditions to apply across the industries covered by the award, the substantive changes that it seeks.

PN416

We say those tests, in the event that the union is successful in this matter, will also be applied when the substantive application is heard and determined by the Commission. Those tests don't disappear, just because it is not in front of a Full Bench. So the test, on the substantive issue, we say is identical. My friend then went on to address the Commission about the public interest, and precising his submissions, he said that in some cases, such as a SEQEB decision, as I will call it, there was a competition to determine the public interest between State or Federal industrial regulation.

PN417

And he says there was no such competition of public interest in this case. It is not an issue. It is not an issue that should occupy the mind of the Commission as presently constituted. The President has determined that a Full Bench is not necessary in the public interest. That issue has been tested by the President. He has determined that matter. He has every right to determine that matter. He then goes on to say that single Members of the Commission should follow Full Bench decisions. We do not disagree with that principle. But it is - the million dollar question here, Commissioner, is whether or not the Commission as presently constituted is able to hear the substantive application, and we say it is.

PN418

Now, my friend says this about Commissioner Whelan's and Commissioner Cargill's decision. That they have little value, particularly the Whelan decision, because it doesn't analyse any reasons for the Cargill decision, and he took you to an authority about that. But the whole point of it is, and this is a point that you raised, Commissioner, neither of those decisions were appealed. If there were such a fundamental breach in the exercise of the jurisdiction by those two Members of the Commission, one would reasonably assume it would have been appealed and dealt with by now, by a Full Bench, no doubt.

PN419

THE COMMISSIONER: I don't know. The employers may not have actually been particularly concerned about it. And then they may - they might have been prepared to say, "Well, we will accept this decision, just as a matter of volition."

PN420

MS FRENZEL: That might be the case. But the fact is, is that both of those matters were hotly contested. And the fact is, is that we say, if there had have been an avenue for appeal for the employers - I mean, we - we are - - -

PN421

THE COMMISSIONER: Yes. I just find the idea of speculating about the probability of appeals - - -

PN422

MS FRENZEL: Well, I think that is right.

PN423

THE COMMISSIONER: - - - is a bit fruitless, really.

PN424

MS FRENZEL: I think that is right.

PN425

THE COMMISSIONER: You know, it is totally speculative as to what the motives of a party to appeal or not appeal might be.

PN426

MS FRENZEL: In any event, I will just rest my submissions by saying that there was no appeal.

PN427

THE COMMISSIONER: Yes.

PN428

MS FRENZEL: On either matter. And therefore, in my submission, they stand. And the principles contained in those decisions also stand.

PN429

THE COMMISSIONER: Yes. But they are not binding upon me, are they, in - either as a matter of general principle, other than comity.

PN430

MS FRENZEL: I am sorry?

PN431

THE COMMISSIONER: They are not binding upon me in the sense that a Full Bench decision is not necessarily binding, as Mr Angelopoulos has pointed out, but, you know, there is a stronger sense of comity and consistency with Full Bench principles applicable, isn't there, than with - as between single Members in different factual circumstances?

PN432

MS FRENZEL: Yes. Yes.

PN433

THE COMMISSIONER: I mean, I might say well, those decisions as a matter of law are in order. But I still exercise the discretion according to my own lights, don't I?

PN434

MS FRENZEL: Absolutely, Commissioner. Now, the second part of the initial submission - just excuse me one moment please, Commissioner. Yes. The second part of their submissions was the primacy of enterprise bargaining over the issue of making, what I describe as being general award variations. And that matter was dealt with at paragraph 48 of the Metals decision. And that was also quoted by the employers in their submission. But the union, in its submission, puts a different slant on it. And, if I can take the Commission to the written submissions of the LHMU, commencing at paragraph 5.8 on page 8, and say this:

PN435

The notion that the Act has as one of its primary objects the promotion and encouragement of making agreements and resolving such issues at the workplace level cannot and does not detract from its other primary objects.

PN436

And what we do in our written submissions, Commissioner, is we take you to, at paragraph 5.9, the Full Bench decision which dealt with the claim for additional penalty rates on New Years Eve and New Years Day. And there is a claim by the SDAA and the LHMU with respect to the 2000 New Years Even. Found at Print S1989. And that Full Bench - it goes back to what we were saying before about the following Full Bench decisions. That Full Bench says this:

PN437

The roles and functions performed by awards and those performed by agreements are separate. For example, section 3(d)(1) states that one of the ways of achieving the principle object of the Act is by providing the means for wages and conditions to be determined as far as possible by the agreement of the employees and the employers at the workplace level or enterprise level, upon a foundation of minimum standards.

PN438

So - and also, that matter was dealt with by another Full Bench, and this is an LHMU case as well, and the multi - and what I call the Multi-hiring case, found at Print P5446, and I will tender a copy of that as well.

EXHIBIT #F1 COPY PRINT P5446

PN439

MS FRENZEL: And one interesting observation that came out of that decision was that the Full Bench referred to, amongst a range of other things, the fact that these - that the award safety net provides the benchmark for the no disadvantage test, against which enterprise agreements are to be assessed. And it goes on also, to refer to another decision in re Victorian Catholic Schools and Catholic Education Officers Award 1996. And in that decision the Commission said:

PN440

The award and variations of it are in a regulatory and process stream. Because of the safety net character of an award, that stream is distinct and intended to be kept relatively independent of the enterprise agreement stream.

PN441

And the Commission also observed that:

PN442

A claim directed in truth to the maintenance or establishment is clearly distinguishable from a claim for award improvements of a kind that might be appropriate to be pursued through enterprise bargaining.

PN443

And we made this - and we made the observations about the second submission - or the second ground, if you like, of the employer's case. And we say this. It is now a well settled principle that the functions of awards versus agreements are distinguishable. And we say, with respect to the section 111(1)(g) matter, and we reserve our rights with respect to the 113 matter, if it does go to hearing and the employer's application fails, that the LHMU should not be necessarily required to provide submissions, preliminary or otherwise, as to why the matter would not be dealt with at a workplace or enterprise level.

PN444

And I might stop there for one moment, and just make an observations about the submissions of Mr Levin, when the matter was previously before you. Because he made an interesting observation, that it was a very - I will find the - I will find the transcript paragraph number in a moment. But he made the very interesting observation that the industry, the car parking industry in Victoria, is a very disparate industry. That there are a lot of locations. That there are people who only operate one car park. In particular, the observation of people having one car park and perhaps two or three employees, is found at paragraph 195 of transcript. And that we say if there is a necessity for the union to respond in the context of a 111(1)(g) application about the primacy of enterprise bargaining, Mr Levin insists the union in its submissions, by putting such submissions before the Commission previously. The very nature of the industry is a matter for consideration before the Commission, with respect to the primacy or otherwise of enterprise bargaining and the context of award variation matters. Now, we also say, and we don't resile from the fact that there are claims contained within the application which could be characterised, and are characterised, as claims outside the safety net.

PN445

But there is also this issue that the employers must accept that the award in its current form does not reflect Commission standards. Now, what those Commission standards ultimately end up being if the substantive application is heard, is a matter for debate between the parties, and determination by the Commission. But we say, prima facie an award such as this does not represent an appropriate safety net, either for employees who are subject to enterprise bargaining, or for those who are not. And that matter arose before Commissioner Cargill with respect to the casual loadings, and also, obviously arose in the Metals Casuals case.

PN446

We then have the additional submissions made by the employers last week. And, can I put a primary submission about this, Commissioner, and say that really, the Commission should not entertain these additional submissions. And I say so not because they were filed last week, but for the pure and simple reason that the issue of whether or not - and I will deal with the unsimplified and interim award matter first, is not a relevant matter under section 111(1)(g). The whole point about simplification of awards, and it was - and it goes to item 51:

PN447

Unsimplified award is meant to reasonably represent the entitlements of the employees.

PN448

That is the intent of item 51. So when an award goes from being in its previous form and becoming a simplified award of this Commission, it is meant to reasonably reflect the entitlements of the employees, taking into account the necessity to delete, or in some cases, amend, clauses which otherwise would fall outside the scope of section 89A(2) of the Act. The application before the Commission seeks to improve the entitlements of the employees. It is a matter of process in this Commission, of which my friend is no doubt aware of, that when either the employers or a union, in the case of a simplification, wishes to introduce a new matter, that it is dealt with by a section 113 application.

PN449

It cannot be dealt with under item 51, because item 51 deals with conditions which are already there. Now, if my friend is say, look, if we do the item 51 review before the Commission, and we will consent to the matters which are the subject matter of the application before the Commission under section 113, then maybe he has got somewhere to go with the submission. But he has got nowhere to go with the submission if all he is saying is, "Oh, the award hasn't been simplified. The Commission shouldn't deal with the section 113 application. And it should be dealt with as part of it," because the truth of the matter is, Commissioner, is that it wouldn't be dealt with as part of it. Because it is not an issue where item 51 could be applied to reasonably represent the entitlements of the employees. It is an absolute nonsense submission.

PN450

And the fact that the award is an interim award also has no bearing on section 111(1)(g). They say, and they are right, they did not come willingly to the Commission. They are putting a - but they are saying to this Commission, "We didn't come here willingly. It is the union's responsibility." Well, Commissioner, we are exercising our responsibilities by making the application, and by defending their - or, sorry. By arguing against their section 111(1)(g) application. The fact that it is an interim award is neither here nor there. It is not a matter which is relevant to your considerations under that section of the Act, and it is a matter which can be dealt with - that can be dealt with in the award simplification process, obviously.

PN451

Now, as you can see, and I think it is attachment B to the additional submissions, there is a history of the award set out there from the Commission, off Osiris. And it shows that the award has been varied for the various safety net adjustments available. And that it has also been the subject of an application for personal carers leave. And the award has also been varied with respect to the minimum rates adjustment process. It is interesting to note that all of those applications were union applications. There were no employer applications there. And the reason for that, without putting too fine a point on it, is because they didn't need to.

PN452

The award had a 40 hour week. It still has. The award has a 40 hour week. The award has casual loadings which we say, and which will be determined no doubt at some point or other, but casual loadings which do not comply with Commission standards. It has shift penalties, which we say are inferior. It is up to us to prosecute that claim. They have never needed to come to this Commission to seek a variation to the award, because they didn't want the award to improve. They were perfectly, and they remain perfectly content with that they have.

PN453

I mean, if they were so hell-bent on converting an interim award to a final award, why didn't they make the application themselves? The answer to that, Commissioner, is that they are happy having it the way it is. It was just the employees covered by the award, and the union, that are unhappy. My friend makes some observations about the 1995 original award, none of which I debate. Yes, it was a comprehensive award, and it was obviously designed to comply with first award principles. It arose out of the abolition of the industrial relations system in Victoria, and there was a disagreement between the employers and the union at the time about what constituted the status quo, when you test that against the first award principles. There is also this absolutely irrelevant submission about the service of the log of claims and the finding of dispute occurring, I think it was one year and two months, according to my friend, after the abolition of the Victorian industrial relations system. We say so what? There was around that time, in case my friend wasn't aware, a series of cases before this Commission, and in the High Court, about logs of claims, dispute findings, what status quo meant under the first award principles.

PN454

There were appeals about interim awards. It was a chaotic time for Victorian industrial relations, and for this Commission, and for the unions and the employers. In any event, it is not relevant to this matter.

PN455

[1.01pm]

PN456

I have already dealt with my friend's submissions about bringing on the simplification process before dealing with the current section 113. We then have the novel submission that, as I understand it, because of the conduct of the union, the Commission will exercise its discretion under 111(1)(g)(iii) and refrain from hearing it. And in answer to a question by yourself, Commissioner, my friend was unable to take you to any decisions which dealt with that issue on its own. But it does - given that the union has been criticised about its conduct with respect to this application, it does bear, albeit limited, examination in response. And the first matter - - -

PN457

THE COMMISSIONER: Well, it just seems to me the issue you have to address is whether or not there is a public interest consideration in relation to that matter.

PN458

MS FRENZEL: Well, we say there is not.

PN459

THE COMMISSIONER: Well, the point that I am making is that you can argue the merits of procedural steps taken by either party that lead to delays, in relation to many matters. For instance, if there was an application before a member and there was an issue of a date of operation, well, it would be highly relevant. In this case, the relevance is confined to whether or not there is a public interest consideration associated with these facts, it would lead to the Commission refraining from further hearing the matter. That is the test, isn't it?

PN460

MS FRENZEL: That is the test.

PN461

THE COMMISSIONER: That is the only thing you have to address. There is no point in me listening to banter about who is right and who is wrong about the delays, except insofar as it goes to the power that I am asked to exercise, which has to be grounded on a public interest consideration. So where is the public interest in declining to further hear or determine a matter or refrain from doing so, more precisely, because one party has delayed? That is the question, isn't it?

PN462

MS FRENZEL: That is right. And we say this: that in terms of the public interest test, the fourth ground put by the employers simply does not go anywhere near the public interest test. There is nothing in the public interest test which says that just because there has been a delay in dealing with the matter, that the matter ought not be dealt with at all. And there is also nothing in section 111(1)(g) which supports the Commission considering the fourth ground which the employers have sought to rely upon.

PN463

And I think the chronology of events set out at attachment A, without putting too fine a point on it, could perhaps more accurately reflect the events of what happened. But nonetheless from the employer's perspective that chronology would appear to reflect what they view as having happened. So if we deal with the four grounds; the first ground broadly equals no Full Bench constituted by the President, therefore no hearing of the case. We say that is an incorrect submission, and we have taken the submission to decisions about that matter.

PN464

Second ground, the primacy of enterprise bargaining. We say not a consideration under section 111(a)(g) anyway. We say we have taken the Commission to authorities which clearly delineate the difference between awards, the award stream, if you like, and enterprise bargaining. They are the first two grounds.

PN465

THE COMMISSIONER: Well, they are not mutually exclusive, are they?

PN466

MS FRENZEL: They are not mutually exclusive, but one does - - -

PN467

THE COMMISSIONER: In fact they are collaborative or co-operative components of the legislation, are they not?

PN468

MS FRENZEL: That is right.

PN469

THE COMMISSIONER: For the purpose of a bargain to be certified under the Act, it has to be tested against the no disadvantage test, which is comprised of a fair safety net of wages and conditions of employment.

PN470

MS FRENZEL: That is right, and that is the key to it, the fair safety net of wages and conditions. And that is the key that was developed in the Full Bench decision with respect to the multi-hiring application. So they are the first two - - -

PN471

THE COMMISSIONER: You do not have either or; you have both. That is the scheme of the legislation, isn't it?

PN472

MS FRENZEL: Well, that is right.

PN473

THE COMMISSIONER: It is in the objects of the Act, isn't it?

PN474

MS FRENZEL: That is right. And there is also - and I stand to be correct by my friend, but there is also, as far as I am aware, no decisions of this Commission which say enterprise bargaining takes on such a primacy in the context of an award application to vary that the matter not be dealt with at all. I stand to be corrected by my friend, but I do not think there is a decision out there, otherwise no doubt he would have found it. So they are the first two main tests, and then we have the last two, both of which we say should not be considered in any event.

PN475

They lack weight and they are not public interest arguments which would attract the attention of the Commission under 111(1)(g)(iii). And I conclude my submissions there, Commissioner.

PN476

THE COMMISSIONER: Thank you. I will just distribute that decision I referred to. I realise it is not precisely on point because it deals with another principle, but in any event the parties should have the opportunity to know what I am referring to and to address it if they wish. We might just take a brief adjournment to give you an opportunity to read that decision, Mr Angelopoulos, and then - - -

PN477

MR ANGELOPOULOS: Yes, Commissioner, and I will be very short in reply.

PN478

THE COMMISSIONER: Yes, so we can hopefully finish before 1.30, do you think?

PN479

MR ANGELOPOULOS: Yes, Commissioner.

PN480

THE COMMISSIONER: Let us take till about quarter past, thank you.

SHORT ADJOURNMENT [1.08pm]

RESUMED [1.15pm]

PN481

THE COMMISSIONER: Yes, Mr Angelopoulos.

PN482

MR ANGELOPOULOS: I will be very brief, Commissioner. I just want to highlight some short matters which my learned friend Ms Frenzel has raised. The first one concerns our first ground. The first matter which Ms Frenzel took you to was paragraph 50 of the Metals casuals case, where the Full Bench talks about a case by case approach. It is my submission that Ms Frenzel incorrectly interprets what was said there. What they are really talking about is that what is a special case is a case by case approach in terms of dealing with the particular merits of a case, not about each special case is dealt with on a case by case approach as in a sense of what Commissioner Cargill or what Commissioner Whelan did.

PN483

The other matter that Ms Frenzel raised, where she said that because the President determined the public interest, you do not have to determine it. Now, the President's public interest determination is under 107 subsection 6. Yours, in this instance, is under section 111(1)(g)(iii). Now, the principles are the same in each case, but you have to separately consider the public interest, separate from that which the President dealt with. On our second ground, I do want to reiterate that when I talk about enterprise bargaining and the relationship with safety nets, we are talking about a temporal refrain.

PN484

We are not saying that it would never be heard; we are saying do certain steps and once those steps have been done then there might be an opportunity to be heard on the substantive - - -

PN485

THE COMMISSIONER: How could that be? Either the provisions of paragraph 50 of the Metals casuals decision that you rely on apply or they do not. They cannot - - -

PN486

MR ANGELOPOULOS: No, no, this is as - - -

PN487

THE COMMISSIONER: They cannot change simply because the seasons have moved on.

PN488

MR ANGELOPOULOS: No, no, that is right, Commissioner. I make it as an alternative in that point about the relationship between enterprise bargaining and the safety net, not - - -

PN489

THE COMMISSIONER: Right, I beg your pardon.

PN490

MR ANGELOPOULOS: That is right. The other perhaps I just want to - - -

PN491

THE COMMISSIONER: Well, yes and no. I mean, the point is that - I see, that is if I was against you on the - - -

PN492

MR ANGELOPOULOS: On ground number 1.

PN493

THE COMMISSIONER: Yes, sorry.

PN494

MR ANGELOPOULOS: On this, we are now talking about number 2.

PN495

THE COMMISSIONER: No, I understand.

PN496

MR ANGELOPOULOS: The second matter is about the award benchmark, and the union talked about what it would like and what is an appropriate benchmark. The truth of the matter is under the current principles, the current award conditions reflect the benchmark for enterprise bargaining, not what the union would like them to be. In addition, when Commissioner Cargill was dealing with the loading in her application, in paragraph 26 she says:

PN497

I note that there is no test case standard as to how loading is to be calculated or what such a rate should be.

PN498

There is no standard for loading in this Commission, and that is why it is incorrect for the union to say this is an appropriate rate. As to the issue of simplification, I just reiterate what we said before. The union said that we could deal with the interim - the movement from interim to final in simplification. Well, I would just raise the point again, we do not know what they want to do to make it a final award. How can we? It is sort of still all up in the air. They also make the submission that item 51 has no relevance to section 111(1)(g). I make the submission that item 51 grounds the public interest in the issue of that you should simplify the award first.

PN499

And as to the fourth ground about the union's conduct, I say - well, I acknowledge there is no case on point, but there must be a point in time when there is so much delay that you could say the public interest favours the Commission refraining from hearing the case. Now - - -

PN500

THE COMMISSIONER: Why is that?

PN501

MR ANGELOPOULOS: Well, Commissioner, there are a number of imperatives in this Tribunal; one of them is that you should try and act as quickly as possible. Now, to some extent, you would give the parties some flexibility or ..... Commission ever does. But the point is that if the union is coming up and saying on 30 August let us push ahead, quick, quick, quick, we want to go ahead now, and we have this obligation - you referred to that in the transcript on 30 August, and now we get to a point where they sat on their hands for such a long time, we say that the public interest favours you refraining from hearing. It does not - - -

PN502

THE COMMISSIONER: Yes, I understand that is what you are saying. What I am really interested in is how does the public interest favour that? That is the issue, isn't it? It is not a question about the delays; it is a question of the public interest.

PN503

MR ANGELOPOULOS: That is right.

PN504

THE COMMISSIONER: And how delay and the public interest interact.

PN505

MR ANGELOPOULOS: Yes.

PN506

THE COMMISSIONER: Where is the public interest?

PN507

MR ANGELOPOULOS: The public interest, Commissioner, is in effect a signal to parties where, if they take too long, particularly when they initiate processes, if they do not act within a reasonable time frame, you should be saying, look, it comes to a point where you have just taken way too long, particularly when you say something is urgent, I should refrain from hearing it. I am not saying that every delay will fall within this criteria. ]

PN508

THE COMMISSIONER: Yes, but you see what you have not explained to me is why it is that that is where the public interest sits. Why couldn't it be said that the public interest is simply indifferent to any delay the union might take in prosecuting a claim?

PN509

MR ANGELOPOULOS: Well, Commissioner, as I said to your earlier, the principle we are talking about is a question of fact and degree of what is the public interest.

PN510

THE COMMISSIONER: You see, what it seems to me is that you are saying that the public interest has - the public interest is engaged with promoting, you know, unions being quick to prosecute claims.

PN511

MR ANGELOPOULOS: Particularly when they say that they want to prosecute it quickly.

PN512

THE COMMISSIONER: Yes, well, why is it the public interest has that, you know, investment in union activity in order that, you know, for instance, the building workers go as hard and fast as possible when they make up their mind that they are going to place some demands on an employer, that they get stuck into it?

PN513

MR ANGELOPOULOS: The reason I say - and I do refer to another section of the Act, Commissioner - I say that it is because of section 110 and your obligation to act as quickly as possible. You cannot act as quickly as possible if they do not basically follow the same line and likewise at appropriate - - -

PN514

THE COMMISSIONER: But with all due respect, I can. I can act as quickly as is possible under the circumstances, if a party coming to this Commission decides that, well, we will not make the application today, or we will make an application for an adjournment. If they do make an application, then the Commission can decide whether or not to grant it. If it grants it, then when the matter comes on for hearing it can decide whether or not it will make a decision immediately or later, whether it will defer consideration of the matter. There is no inhibition on the Commission's powers and its discretions by an applicant, whether it be a union, an employer or anybody, going about it in a particular way.

PN515

MR ANGELOPOULOS: No.

PN516

THE COMMISSIONER: It does not inhibit what the Commission does about the application.

PN517

MR ANGELOPOULOS: No, it does not, Commissioner. And I do not wish to press the point any further. That is all I wish to raise about this. Perhaps just - I do wish to raise just one matter arising out of the decision which you handed to us just before the adjournment, and I note at paragraph 13 - yes, paragraph 13, you say:

PN518

The matter remains to be determined.

PN519

And then concerns in some ways a bit of a situation like this, and you say:

PN520

Accordingly, in my view, in all the circumstances of the case, the application has merit, having regard to the relevant considerations it may have been granted. To adopt any other view, I think, it would be a failure to exercise jurisdiction.

PN521

Commissioner, I make two points on that statement. Firstly, that we are not - what we submit is not a submission about you not exercising jurisdiction. That is, you still will be able to exercise jurisdiction in respect of matters which are within the safety net, matters which the Full Bench combining the safety net and Metals casuals case said that you can do.

PN522

THE COMMISSIONER: But I think, with all due respect, you are talking about the extent of the Commission's jurisdiction rather than the application for the exercise of the jurisdiction that I have got to hear and determine in this matter.

PN523

MR ANGELOPOULOS: Mm.

PN524

THE COMMISSIONER: The application that I have got to hear and determine in this matter concerns hours and shift allowances and various loadings and overtime rates. Now, what you are putting to me is that what I should conclude is that it is not possible to do that because I cannot identify the application as a special case, and therefore I should say I am not going to hear or determine this matter.

PN525

MR ANGELOPOULOS: Yes.

PN526

THE COMMISSIONER: Now, I think, in a not strictly analogous situation in that matter, I took the view that since an application to vary an award for a safety net adjustment earlier than the date on which any decision or order might be issued was a matter that attracted the principles and, in particular, attracted the necessity for an application for a Full Bench. If that application was refused, that did not let me off the hook as to whether or not I would decide to grant or not grant the application.

PN527

MR ANGELOPOULOS: No.

PN528

THE COMMISSIONER: I could not say, oh look, I do not have to deal with this application, it is as if it was never made.

PN529

MR ANGELOPOULOS: Commissioner, we never say that the application was never made. We say the application has been made. We say that there are principles in existence which in effect you should follow which say: I cannot deal with certain aspects of this application. But I think the most important thing to consider is that - - -

PN530

THE COMMISSIONER: Well look, I would find it a lot easier to accept your submission if the sentence - the second sentence in paragraph 50 of the Metals casuals case was actually in principle 10.

PN531

MR ANGELOPOULOS: It would have been a lot easier, but - - -

PN532

THE COMMISSIONER: It would be a lot easier, and I think that is the nub of this matter, isn't it, that is it not in principle 10?

PN533

MR ANGELOPOULOS: No, no, but it is in the Full Bench decision.

PN534

THE COMMISSIONER: That is right. Which has precedence over which?

PN535

MR ANGELOPOULOS: Yes. The only other matter I was going to raise about that statement in your - that extract of your decision, Commissioner, was that if you do view this as akin to a failure to exercise jurisdiction, there is a legislative provision for you to do that, and that is section 111(1)(g) says in certain circumstances you are - if public interest is satisfied, you should not exercise jurisdiction. That is all I want to say. Thank you, Commissioner.

PN536

THE COMMISSIONER: Thank you, I will reserve my decision.

ADJOURNED INDEFINITELY [1.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 EXTRACT FROM QUEENSLAND ELECTRICITY COMMISSION CASE PN92
EXHIBIT #A2 COPY OF AUSTRALIAN INSURANCE EMPLOYEES' UNION CASE PN220
MFI #A3 TRANSCRIPT PN313
EXHIBIT #A4 DISPUTE FINDING AND LOG OF CLAIMS PN319
EXHIBIT #A5 HIGH COURT CASE OF PACIFIC COAL PN324
EXHIBIT #A6 McMILLAN v TERRITORY INSURANCE PN331
EXHIBIT #A7 LETTER FROM PWC TO THE UNION DATED 1 OCTOBER 2001 PN363
EXHIBIT #A8 LETTER FROM PRICE WATERHOUSE COOPERS TO MS FRENZEL DATED 4 OCTOBER PN372
EXHIBIT #A9 LETTER TO COMMISSIONER LEWIN DATED 4 OCTOBER PN383
EXHIBIT #A10 LETTER TO COMMISSIONER LEWIN FROM THE UNION DATED 1 NOVEMBER PN384
EXHIBIT #F1 COPY PRINT P5446 PN439