C2001/4928, Transcript of Proceedings [2002] AIRCTrans 180 (8 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N 0792
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER HOLMES

C2001/4928
C2001/4933

APPEALS UNDER SECTION 45 OF THE ACT
BY THE AGE COMPANY LIMITED AGAINST
DECISIONS OF COMMISSIONER WHELAN AT
MELBOURNE ON 28 AUGUST 2001 IN C2001/4047
AND 27 JULY 2001 IN C2001/4047

MELBOURNE

10.04 AM, THURSDAY, 18 OCTOBER 2001

PN1

MR N. GREEN QC: I seek leave to appear with my learned friend MR T. ANGELOPOULOS for the applicant appellant.

PN2

MR M. BROMBERG: I seek leave to appear as counsel for the respondents.

PN3

VICE PRESIDENT ROSS: Thank you, leave is granted in both cases. We have had the opportunity to read the transcript below, the Commissioner's decision and the parties' written submissions, so we do not apprehend that we need to detain you for very long this morning. Just before we go to your submissions, Mr Green, or ask you any questions we have in relation to them, can I just confirm with you, Mr Bromberg, there is the observation made in - it really just goes to the factual matrix, that is all, but I want to make sure that there are no issues arising - you see the appellant's submission?

PN4

MR BROMBERG: I am sorry?

PN5

VICE PRESIDENT ROSS: You see the appellant's submission, in paragraph 1.

PN6

MR BROMBERG: Yes.

PN7

VICE PRESIDENT ROSS: Are there any - it seeks to set out the factual matrix in subparagraphs (a) to (p). Do you contest any of those?

PN8

MR BROMBERG: I do not think we contest them, your Honour. There are a few additional facts that we want to refer to.

PN9

VICE PRESIDENT ROSS: Yes, that is fine. Thank you. Mr Green, we mark your written submissions A1 and your submissions in reply as exhibit A2.

PN10

MR GREEN: May it please your Honour.

EXHIBIT #A1 WRITTEN SUBMISSIONS OF MR GREEN

EXHIBIT #A2 SUBMISSIONS IN REPLY OF MR GREEN

PN11

VICE PRESIDENT ROSS: Can I go to - is it convenient for us to ask questions?

PN12

MR GREEN: Yes, of course, that is what I am here for, your Honour.

PN13

VICE PRESIDENT ROSS: If I can go that aspect of the appeal which relates to Friday the 27th.

PN14

MR GREEN: Yes, your Honour.

PN15

VICE PRESIDENT ROSS: Of July. Now, as I understand, you set out the exchange between yourself and the Commissioner at the commencement of the proceedings on that day.

PN16

MR GREEN: Yes.

PN17

VICE PRESIDENT ROSS: On page 3 of your written submissions, where you start by saying that you apprehended that there would be called on an application under section 166A.

PN18

MR GREEN: Yes.

PN19

VICE PRESIDENT ROSS: The Commissioner responds to that, and indicates that it has been received, she has not had a chance to look at it, so on that basis it has not been listed. You then say:

PN20

We had hoped that it would be, but perhaps we can come to that in due course.

PN21

And then you go on. I cannot find in the transcript where, if at all, you return to that matter on Friday the 27th.

PN22

MR GREEN: I made a short return to it, and I will supply the reference to that. It was in the course of my developing our argument in support of leave to appear. I can perhaps ask the members of the bench to go to the transcript of Friday.

PN23

VICE PRESIDENT ROSS: I think you are there making a submission about the interrelationship between 166A and 127.

PN24
MR GREEN: I was, your Honour, thank you. PN22. I said:

PN25

If the Commission pleases, on 27 July last, an application was brought pursuant to section 166A, written notice of intention to bring an action in tort was filed with the Commission about midday Friday of last week.

PN26

I thought there was another reference - - -

PN27
SENIOR DEPUTY PRESIDENT LACY: PN21, I think it is.

PN28

MR GREEN: Yes, yes, that is right. Thank you, your Honour, Senior Deputy President Lacy. Yes, I said:

PN29

And I mention to you when the two matters were called on, Commissioner that in aid of that application that those instructing us have also issued with the registry today a written notice to bring action in tort pursuant to section 166A.

PN30

May I say, to answer your question, I think, your Honour, that exhausts the references that I made to the 166A matter, and may I say to your Honours and Commissioner Holmes at once that it is true to say that at no time on Friday did I request the Commissioner to list the 166A matter.

PN31

VICE PRESIDENT ROSS: In those circumstances, it is difficult to apprehend how there would be a procedural fairness point if you have not asked for the exercise of the power or the matter to be called on to give you an opportunity to put submissions going to how the power might be exercised.

PN32

MR GREEN: I think in the ordinary run of things, the answer to your Honour's question is that is right. I would ask the members of the bench to pay regard, however, to a couple of matters that actually cropped up here. A fair reading of the transcript will disclose that the application for leave to appear was a highly contentious one, as between bar table and bench. And an advocate is always conscious, of course, of the need not to wear out his or her welcome in a forum where leave is necessary for that particular advocate to appear.

PN33

So I would ask your Honours and Commissioner to bear that in mind. The other - - -

PN34

VICE PRESIDENT ROSS: Once you had been granted leave, which occurred, albeit with some reluctance in this matter, what is the impediment to raising the 166A matter?

PN35

MR GREEN: There was none, your Honour. I have to say that; there was none. But by the time I had been granted leave, with my junior, it was I think well into the evening.

PN36

VICE PRESIDENT ROSS: Yes.

PN37

MR GREEN: Well into the evening. The action had been on foot for 14 hours or so at that stage. I think we are talking about 8 o'clock in the evening. It seemed to be common ground, subject to a modification I want to tell you about, that the stoppage was of 24 hours' duration. There was terra firma confronting me, as it were, in that the 127 matter had been called on, had been called, and the Commissioner was undeniably seized of that, and that was the business to which the parties' attention turned.

PN38

And one of the things we want to develop as part of our argument, which has not got a look-in, I should say to you, in our written submissions, is the relationship between these two provisions. For example, in 127(4), the Commission is reminded that the powers under section 127 are in addition to those elsewhere found in the Act, and that includes of course the powers exercisable under 166A. Now, having made my mea culpa for not having asked in terms for the 166A application to have been called on, may I say this: that whether I asked for it to be called on or not, it behoved the Commissioner to comply with the duties cast upon her by the Act, including those cast upon her by section 166A.

PN39

One of the disturbing things, if I can make that submission, about the disposition of this matter is that when one reads the section 166A decision in combination with the decision in transcript given on Friday concerning the 127 matter, one is led to conclude something to this effect, and I am addressing this notionally to the company: you got your order under section 127, so what more could you reasonably hope for? Now, if that is a fair reading of those two decisions, there is something wrong as far as the adherence to the statutory scheme is concerned, and we are greatly troubled by that.

PN40

And may we say it is a factor that has weighed with those who have instructed us to institute this appeal. I am being really straight with the Commission about that. That is one of the reasons we are here and our client is aggrieved by that flavour that has emanated from those two decisions and, when one reads between the lines of those two decisions, I am not saying that is the only reason we are here, your Honour, but it has contributed to our being here. And, your Honours and Commissioner, may we also say we accept at once that section 166A and its construction is no easy matter.

PN41

Construing it in relation to section 127 is no easy matter. But we apprehend that this Commission will frequently be confronted with industrial circumstances where parties such as the appellant make applications under both sections, and we submit with respect that it is appropriate for the Commission as constituted to give some guidance to the users of the Commission and its members about keeping steadily in mind duties incumbent upon the Commission that both those sections, when invoked, bring into play.

PN42

So I mention those matters at the outset because they do inform the background against which our client comes to be prosecuting this appeal.

PN43

VICE PRESIDENT ROSS: For myself, those were the only questions I had relating to the appeal in respect of 27 July. Is there anything else you wish to say in relation to that aspect of your submissions?

PN44

MR GREEN: There is only one other thing I want to say, and it is by way of a beef, if I can get it off my chest. There are a couple of references in the decision in transcript given under section 127 where the Commissioner says in effect, well, the company has not assisted itself by the way in which it has conducted itself. I think that is a fair description of the comments which are repeated in that short decision.

PN45

VICE PRESIDENT ROSS: Is that going to the issues that led to the dispute in the first place?

PN46

MR GREEN: Yes.

PN47

VICE PRESIDENT ROSS: The disciplinary action?

PN48

MR GREEN: Yes, as I read the Commissioner's reasons, it does take shape. We, for our part, would say that to the extent that the Commission was being called on to give a decision whether an order should go under section 127, those orders, to our mind - those observations, to our mind, were gratuitous. Either the application was well-founded or it was not.

PN49

SENIOR DEPUTY PRESIDENT LACY: But you do not suggest, do you, that the Commissioner's actions in relation to the 166A matter was affected in any way by that?

PN50

MR GREEN: No, I am not putting it that high, your Honour, no, I cannot say that. Does the bench want to hear from me about the question about time being extended? We are conscious there is an issue about that.

PN51

VICE PRESIDENT ROSS: You deal with that in your application, don't you? Is there anything you wish to add?

PN52

MR GREEN: Not really. There is power to extend time. Having regard to the time when the decision was made available to us, in terms of the substantive matter we submit we are within time. As regards that first matter, you, your Honour the presiding member has asked me about, we are out of time, and we do submit, however, that if the issues we raised regarding the substantive matter appear to the bench to have some force, that should be a matter that should inform the Commission's discretion whether to extend time.

PN53

On the learning, it appears that Full Benches in the past have approached this task by reference to whether it is desirable to extend time. We submit that this question of whether once the registry has received a notice under section 166A, just what steps are taken to actually have a matter listed and called on a hearing. They are important matters. This case in a sense shows how it is possible for a 166A matter, where a 127 application is on foot, to slip between the cracks, as it were. We say that when one looks at 166A, one of the themes of which that provision is redolent is a need to get cracking.

PN54

Of its nature, it is a matter attended with urgency, and that extends to, we would submit with respect, the need to list urgently and have called on matters. One of the complaints we make, and it finds particular expression in our written reply, is that by having to contend with the 166A matter coming on after the weekend, the effluxion of time worked against the company in terms of its ability to rely upon circumstances that otherwise were capable of being relied upon in subsection 6. And I mean by that that paragraph B which we particularly invoked is tied to that factual requirement of "while conciliation is still taking place" or words to that effect.

PN55

Of course, conciliation had come and gone. I made a contention, true it is, that one should not regard the conciliation as being at an end, but one can see with the benefit of hindsight how difficult it was for me to actually sustain that contention. But that was partly a function of the procedural chronology as respects the way in which the Commission dealt with the matter. So really they are the zed points of our complaints in terms of any procedural irregularity, if I can put it that way. I take your Honour the presiding member's point about procedural fairness. It is a doctrine that should not lightly be invoked.

PN56

One can understand why in this case you would conclude that a case for procedural fairness has not been made out. Even so, even accepting that, if one does accept it - for the purposes of the present discussion I am happy to - the trouble is one leaves the process with an uneasy feeling in the pit or his or her stomach about the way in which the cards fell out, as it were. So that is quite central to the complaint we wanted to articulate to the Full Bench this morning.

PN57

VICE PRESIDENT ROSS: Yes, thank you, Mr Green. That brings us, I think, to the second aspect, which is the appeal against the Commissioner's decision of 28 August. In relation to that, do you wish to add anything to your written submissions?

PN58

MR GREEN: Just a couple of observations, your Honour, that are grounded in the decision itself. One is conscious, of course, that in subsection 5 of the 166A, the task that confronts the Commission when it is seized of such a matter is to try and stop the action complained of, and that is a purpose that runs through a number of the provisions in the overall section. At paragraph 58 of the decision, the Commissioner said:

PN59

Section 166A(5) requires the Commission to take immediate steps to try or continue to try by the exercise of its powers under the Act to stop the conduct ...(reads)... This is what occurred in this case.

PN60

Now, in that context may we remind the Commission of subsection 4 of 127, the terms of which are:

PN61

The powers conferred on the Commission by subsection 1 are in addition to and not in derogation of the powers conferred on the Commission by the rest of this Act.

PN62

So we would make the observation apropos of paragraph 55 that the Commissioner is right to advert as she does to other powers, but not quite right in the emphasis that she lays on the relationship of the two. If the powers in subsection 1 section 127 are in addition to the other powers, the powers to which one is adding are the powers found in 166A. So in a sense, when a member of the Commission is seized of applications under the two disparate sections, one starts with the 166A source of power and then turns one's gaze to the source of power in 127.

PN63

VICE PRESIDENT ROSS: When you say the source of power, do you mean in relation to the exercise of conciliation powers?

PN64

MR GREEN: I mean that, and I also mean if that is looking like a futile exercise or an unfruitful exercise - - -

PN65

VICE PRESIDENT ROSS: The power to issue the certificate?

PN66

MR GREEN: The power to certify, yes.

PN67

VICE PRESIDENT ROSS: Yes.

PN68

MR GREEN: That is what I mean by that .

PN69

VICE PRESIDENT ROSS: Yes, I see.

PN70

MR GREEN: Can I just make a couple of observations about those three paragraphs in subsection 6. It seems to us, if we may so submit, that one does not start with paragraph (c) and then work backwards to (a) or (b). There is some suggestion in the Commissioner's reasoning that that was her methodology, and we have in mind paragraphs 62 and 63 of the decision when we say that. As we read paragraphs (a) and (b), unlike (c) - if I can start with (c), (c) is a clock-watching exercise. You watch the clock to see whether the objective fact contemplated by (c) is met.

PN71

So one does not have to have one's critical faculties engaged to watch the clock. Contrariwise, (a) and (b) contemplate that Commission members' critical faculties will be engaged in the course of the process of conciliation. The member will conformably with those paragraphs be evaluated whether he or she is getting anywhere in terms of stopping the action. And if does not appear to that member that he or she is getting anywhere, then pre 72 hours, steps can be taken in (a) or (b). (a) and (b) appear to operate on different circumstances, and we have drawn to the Commission's attention certain distinctions that one finds in the paragraphs.

PN72

The decision under appeal of course never actually resolves the question, which is a question of fact, whether substantial injustice had been met here. We had submitted below that that criterion had been made out. Because of the way in which the Commissioner arrived at her decision, she considered she did not need to address that question. So this Full Bench does not have the benefit of her views on that. But we did argue below - and I do not want to use this forum as a means of just making a final address, as it were, on appeal - we did say there was a complex of factors that drove one to the conclusion of substantial injustice.

PN73

And they included action taken without notice, unprotected action, damage inflicted by the action in excess of a million dollars, and so on. And we had contended that in those circumstances the substantial injustice point was one that had been made good. The other thing that we would like to say is this: when one reads the submissions of our opponents, one of the things that comes through is that they seem to equate the order the Commissioner made late on the Friday night, under 127, with the stopping of the conduct. Now, there is nothing in the material that would sustain that conclusion.

PN74

True it is when one makes a prohibitive order of the kind one does make or one can make under 127, one expects that order to be complied with. But there is - - -

PN75

VICE PRESIDENT ROSS: Are you saying there was no causal relationship between - - -

PN76

MR GREEN: No, there is no causal relationship that is discernible here.

PN77

VICE PRESIDENT ROSS: Wasn't the evidence of the appellant's witnesses in the proceedings below essentially that they had been told informally that the stoppage must be 24 hours.

PN78

MR GREEN: Yes.

PN79

VICE PRESIDENT ROSS: But when questioned further about that, they were not confident that that would indeed take place, and that it was a serious risk?

PN80

MR GREEN: Yes.

PN81

VICE PRESIDENT ROSS: Those are my words, not the witness's. But indeed it may not. And hence the order was necessary.

PN82

MR GREEN: Your Honour is absolutely right. May I say in that connection, in our written submission in reply we have said to the Commission that it was common ground that the strike would be of 24 hours' duration. We need to qualify that proposition informed by the matter you have just mentioned, and Mr Graham made it clear, and we have furnished your Honours and Commissioner and opponents with the reference, that he was not at all confident that the action would have stopped after 24 hours. He gave that evidence in chief on Friday. We really should supply you with that.

PN83
Yes, it is - I am reading from the transcript of Friday 27 July, PN198 and 199. I was examining Mr Graham, in chief. Mr Graham was the director of group operations of John Fairfax Holdings Limited, based in Sydney. He came down for the hearing on Friday and he said, 198:

PN84

The evidence is that you have been told that the stoppage currently being taken is of 24 hours' duration ...(reads)... no confidence at all about what might happen as a result of this.

PN85

Now, there is also the question, your Honours and Commissioner, about the terms of the order itself. It operated as from 10.30 pm on Friday. There was a relaxation of its operation so far as certain employees were concerned, and I think you will find a reference to as regards those categories of employees, it did not have any operation before 6 o'clock in the morning the next day.

[10.34am]

PN86

So we do not accept the submission we face from the other side that that order should be equated with the Commissioner's successfully stopping the action. We are glad we got the order. Of course we wanted the order, but it was our contention - and indeed we put this in written form on the appeal - that the underlying dispute had not been healed in spite of the order having been made. Now, those observations supplement our written submissions on the substantive matter, your Honour.

PN87

VICE PRESIDENT ROSS: Thank you, Mr Green.

PN88

SENIOR DEPUTY PRESIDENT LACY: In relation to section 166A, subsection (6) paragraph (b), what words do you say the adverbial phrase: "is exercising conciliation powers in relation to the industrial dispute" qualify?

PN89

MR GREEN: We would submit, your Honour, that the words: "The Commissioner decides ..." you would read that as though it was the Commission decides ... while the Commission is exercising conciliation powers. In other words, at a time when you are exercising those powers, you make a decision - you make a judgment - about whether substantial injustice would be caused.

PN90

SENIOR DEPUTY PRESIDENT LACY: Exercising the conciliation powers?

PN91

MR GREEN: Yes, at that time. It may be, for example - and this has probably been the experience of every member of this Bench - that having heard from both sides in conference, either together or separately, you can form a view very rapidly that you are not just going to get anywhere so long as this attitude prevails. And at that time you might make a decision, well, the Company is haemorrhaging to such an extent that I am not going to countenance this, and I am going to step in before the clock strikes 72 hours and certify. So that would be our best reading of that paragraph, your Honour.

PN92

SENIOR DEPUTY PRESIDENT LACY: Yes. The other question I was going to ask is: how did the matter come back on on the 30th?

PN93

MR GREEN: At our request.

PN94

SENIOR DEPUTY PRESIDENT LACY: At your request?

PN95

MR GREEN: Yes.

PN96

SENIOR DEPUTY PRESIDENT LACY: And what was the - - -

PN97

MR GREEN: I don't think it was otherwise going to be listed.

PN98

SENIOR DEPUTY PRESIDENT LACY: And was that just a request to have the application heard, was it?

PN99

MR GREEN: Yes. We wanted to make the application.

PN100

COMMISSIONER HOLMES: Yes, Mr Green. I have one question.

PN101

MR GREEN: Sorry, Commissioner.

PN102

COMMISSIONER HOLMES: That is okay. If we granted your requests, or your applications, do you propose to take any action in relation to it?

PN103

MR GREEN: If the certificate issued?

PN104

COMMISSIONER HOLMES: Yes.

PN105

MR GREEN: I am assuming the answer to that is yes, Commissioner, but I can take instructions about that. Would you like me to do that?

PN106

COMMISSIONER HOLMES: Yes, please.

PN107

MR GREEN: The answer is yes, on my instructions.

PN108

VICE PRESIDENT ROSS: Mr Bromberg.

EXHIBIT #R1 SUBMISSIONS OF MR BROMBERG

PN109

VICE PRESIDENT ROSS: Can we make this observation, that we didn't trouble you in relation to those parts of your submissions that deal with that aspect of the appeal relating to Friday, 27 July. If you can confine any supplementary oral remarks you wish to make to that part of the appeal which relates to the 28 August decision.

PN110

MR BROMBERG: If the Commission pleases. Just to be clear, we filed amended submissions; are those the submissions that your Honour is marking, amended submissions filed yesterday?

PN111

MR GREEN: We can make available a spare copy.

PN112

VICE PRESIDENT ROSS: Thank you. It seems I am the only one without them. Thank you. Yes, you can take it now it is the amended, Mr Bromberg. I will mark those exhibit R1. I take it the amendments - my colleagues have advised me the amendments are relatively - well, perhaps not minor in effect, but minor in terms of the number of paragraphs they impact on. It is 24(a) through to 24(f); is that right?

PN113

MR BROMBERG: That is right. Beyond that I think there were a couple of typos that were picked up, and they are noted in bold, and they are minor. Can we say one thing further, if we may, about our opposition to the extension of time, the application for extension of time in the case? If one looks at the notice seeking extension - - -

PN114

VICE PRESIDENT ROSS: We accepted the appeal from a decision of 28 August as within time, so the extension of time application only relates to the 27th?

PN115

MR BROMBERG: They are both out of time, I think; they are both out of time. The second appeal is out of time by a day.

PN116

VICE PRESIDENT ROSS: I see.

PN117

MR BROMBERG: And there is an application for an extension of time in relation to the Commissioner's decision of 28 August. It is an application dated 9 October 2001. The first thing we say about that is that there is no reason given for the lateness, none whatsoever. What is suggested is that the Company's solicitors did not receive a notice of listing of the delivery of Commissioner Whelan's decision on the day that it was delivered, and they only became - - -

PN118

VICE PRESIDENT ROSS: I think they were made aware of it the day after.

PN119

MR BROMBERG: They became aware of it the day after. And we say about that, well, so what? You then had 20 days to file a notice of appeal, and you give no reason as to why it wasn't done in the 20 days. Was 20 days insufficient? If that is so, that is not said. The first port of call, in our respectful submission, when the Commission considers granting an extension of time, is a requirement upon an applicant to give a reason, to explain its lateness.

PN120

And, in our respectful submission, that has been the approach of the Commission, not only in unfair dismissal cases where the Commission has taken a reasonably strict approach, but generally. And what the application fails to do is give any explanation as to why the time that is allowed under the rules was insufficient. And in that circumstance, an application for an extension of time must fail, in our respectful submission.

PN121

There is also a suggestion in the application that the respondents to the appeal would suffer no prejudice, or no material prejudice. Well, that is made in paragraph 4, but in paragraph 6 it seems to be - that submission is proved to be wrong by the fact that it is there said and confirmed here now that the Company wants to bring tortious proceedings against the respondents. If that is not a threat of harm, then I don't know what might constitute that.

PN122

Now, can we say in relation to our submissions that what seems to be between us, when you look at my learned friend's submission and you look at our submission, what seems to be between us is the contextual way in which section 166A and the relevant provisions need to be approached. Mr Green, in his submissions, says, well, you really need to focus when you are interpreting, in particular, 166A(6)(b); you really need to focus on the words "industrial dispute".

PN123

In our submission, we say when you look at the purpose of the provision, its primary purpose is about stopping the conduct, not ending the industrial dispute, and that is obviously made apparent by 166A(5). But the same argument, in our respectful submission, was had in the Transfield case, and it was there determined against the submission which my learned friend proffers here. Can I just draw attention, if I may, to that decision, and in particular can I draw attention to paragraph 44 of Transfield, where the Full Bench said this:

PN124

Contrary to the respondent's submissions, the judgments in Victoria v The Commonwealth do not assist their case.

PN125

And Mr Green also seeks to rely on the majority judgment in Victoria v The Commonwealth. The Full Bench went on to say:

PN126

In that matter the High Court was determining the constitutional validity of section 166A and did not consider the relevant statutory context. The Court's observations about the connection between the immunity conferred by section 166A and the exercise of conciliation powers by the Commission were directed towards the issue of constitutional validity, not the meaning of section 166A(6)(c) within the context of the Act.

PN127

Now, we say that exactly the same observation should be made here. The only relevant difference is the Full Bench's reference to 166A(6)(c) ought to be changed to 166A(6)(b) which is the relevant paragraph that we deal with here. And once that observation is made and if it is adopted, it would seem to us that the whole basis upon which my learned friend's argument is mounted falls away.

PN128

We make the point in our submissions that the three paragraphs in 166A(6) have a sequential operation which occurs by reference to the Commission's obligation to stop the conduct. 166A(5) tells us what it is the Commission must do and must do immediately, and it doesn't say that the Commission has to move immediately to conciliate the industrial dispute and end the industrial dispute.

PN129

It makes it very clear that what it is the Commission has to do is exercise its powers under the Act to stop the conduct, and its powers under the Act to stop the conduct include its powers to conciliate, and it is those powers, to conciliate in order to stop the conduct, that every reference to conciliation in section 166A(6) is speaking of. The conciliation involved is the conciliation to do what the Commission has to do immediately, or has to achieve immediately, and that is to stop the conduct.

PN130

And we say that both as a matter of the language utilised and also as a matter of the proper construction of these provisions, given their context and the purpose of the provision, the evident purpose of it, our submissions are correct, and there is no power to issue an order by reference to paragraph B in circumstances where there is no conduct on foot.

PN131

Now, my learned friend wanted to suggest that the issue of a 127 order did not necessarily equate with the stopping of the conduct. Well, that might be correct so far as it goes, but I don't think there was any issue before the Commission that the conduct had not stopped, and is not stopped. So I don't know where that submission takes him, with respect. That was not an issue before Commissioner Whelan on, I think 30 July, when the matter was argued.

PN132

We say at paragraph 21 that the appellant's submissions lead to absurd results. We give the example of the fact that the present dispute - or any dispute in fact - may well still be being conciliated 12 months after it first comes to the Commission's attention in the absence of any industrial conduct. On my learned friend's submission that situation would be a situation where the employer would still be entitled to make an application and have made - if it otherwise satisfies the requirements have granted a certificate under paragraph B. A further absurd result is identified by Commissioner Whelan at paragraph 59 of her decision - can I just draw attention to that - where she says:

PN133

If the Company's interpretation of the sections applied, it would discourage the parties from entering into conciliation even though the action had ceased, because to do so would expose them to the possibility of a person seeking that a certificate be issued at any stage where it could be said that the conciliation of the matters in dispute were still occurring.

PN134

And there is nothing in the words of the provisions nor the apparent purpose of the section which would suggest that that is the sort of result that Parliament had in mind. And we give the Commission authorities which make it abundantly clear that absurdities and absurd results of the sort we have highlighted and the Commission has highlighted are to be avoided, and a sensible construction is to be encouraged, on the basis that Parliament is to be assumed to have put in place provisions which are intended to apply in a rational way.

PN135

Now, can I come then to paragraphs 24A through to 24F, and if your Honour the Vice President hasn't had a chance to see the submissions there, perhaps I should spend a little time on them, because they are submissions of some substance. We say that our earlier submissions are fortified by a consideration of the operative effect of a certificate once issued. We say a certificate issued operates only to allow a prospective right of action and not so as to retrospectively provide a right of action in relation to conduct which has ended.

PN136

And that proposition, we say, is made good by reference to the majority decision in Victoria V The Commonwealth. The first thing we say about Victoria v The Commonwealth is that the Court recognised that section 166A provided for an immunity, and those words are important and the decision is replete with references describing 166A as providing an immunity.

PN137

VICE PRESIDENT ROSS: When you say, just in relation to 24A, are you confining the retrospectivity submission to that a certificate can't operate retrospectively in the circumstances you have identified there, that is by providing a right of action in relation to conduct that has ended? Is it the cessation of the conduct that makes the retrospectivity beyond power?

PN138

MR BROMBERG: For the purpose of our case, that is as far as I need to go, but we would suggest that the High Court's decision which I am about to come to is authority for a wider proposition than that.

PN139

VICE PRESIDENT ROSS: Does that mean that an Appeal Bench never issue a certificate, because if it did it would necessarily be - well, not necessarily, there may be circumstances in which the conduct is persisting even where the Appeal is heard - but if, for example, a member simply makes an error as to when time runs - - -

PN140

MR BROMBERG: No, I don't intend to say that, your Honour, because what the Full Bench is - it is perhaps a complex question, and one that might need to - would probably require some more thought, but I would have thought that in that situation the Full Bench on an appeal is really in the shoes of the Commissioner at first instance, correcting error as though it was doing that at the time that the initial decision in error was made.

PN141

VICE PRESIDENT ROSS: And why is it different here?

PN142

MR BROMBERG: It is not - - -

PN143

VICE PRESIDENT ROSS: Leave aside your submissions as to there being no error, but - - -

PN144

MR BROMBERG: No, it is not different here. Our submissions are not directed to suggesting that if the Commission - if the Full Bench found error, the Full Bench could not correct the error by issue a certificate today.

PN145

VICE PRESIDENT ROSS: Right. I misunderstood.

PN146

MR BROMBERG: Yes. What our submissions are directed to is the operative effect of a certificate once issued. And if on the Monday, 30 July - - -

PN147

VICE PRESIDENT ROSS: I see.

PN148

MR BROMBERG: - - - Commissioner Whelan had issued a certificate, we say that that certificate could only operate prospectively, and could have no operative effect in relation to conduct which has ended.

PN149

VICE PRESIDENT ROSS: So it only provides a right of action in respect of prospective tortious conduct, does it?

PN150

MR BROMBERG: Exactly. And that is a proposition that we say is made out when reference is made to Victoria v The Commonwealth. The first point we want to make about Victoria v The Commonwealth is the use of the word immunity in relation to what section 166A does. Secondly, as we say at paragraph 24B, the High Court recognised that the immunity was limited, but it also identified the limitations, and the limitations were described by reference to the qualifications made in section 166A(2). And the Commission will be familiar with those; they are that the action involved personal injury, wilful or reckless damage, that sort of thing.

PN151

Now, no other limitations upon the immunity were identified by the Court. Now, the High Court further considered the nature of the immunity by reference to an issue before it as to whether 166A offended the Constitution by amounting to an acquisition of property other than on just terms. And can I take the Commission to the decision? I have got an extract if that is helpful.

PN152

VICE PRESIDENT ROSS: Has this point been subsequently considered in a case where a party, having obtained a 166A certificate, has then sought to take the action?

PN153

MR BROMBERG: Not that I am aware of. There aren't too many of them.

PN154

VICE PRESIDENT ROSS: No, no, I appreciate that. But I would have thought even if there is one of them that the issue would have arisen.

PN155

MR BROMBERG: Yes, it may have, but I am not aware of any decision which has done that. Now, can I go to page 558, and at the bottom you will see a heading which is numbered (viii) and that is where the Court begins to deal with the point raised about the acquisition of property other than on just terms. And perhaps I can read the next three paragraphs because they are relatively short and they contain what it is that we want to refer to. The majority said this:

PN156

As already indicated, sections 166A and 170PM(3) confer limited immunity from suit with respect to industrial action, and also in the case of 170PM(3) with respect to lock-outs. It is unnecessary to repeat the limitations and qualifications that attach to the immunity thus conferred.

PN157

And that is because the Court has done that before, and it does that by reference to 166A(2) only. They go on to say:

PN158

It is however necessary to note as was conceded in argument that ordinary principles of interpretation require that sections 166A and 170PM(3) be construed as operating prospectively and not as effecting accrued rights.

PN159

And there are a whole series of cases referred to which are fairly well known in support of that plain observation. They go on to say:

PN160

This notwithstanding the plaintiff states contend that sections 166A and 170PM(3) effect an acquisition of property ...(reads)... of property involved in the modification or extinguishment of a right or interest that has not yet accrued.

PN161

VICE PRESIDENT ROSS: Yes, but - I am sorry, go on, Mr Bromberg.

PN162

MR BROMBERG:

PN163

To put the contrary is to propose an acquisition of something that does not exist.

PN164

Now, what is clear about the nature of the immunity from those observations is that they don't simply bar the bringing of a cause of action which has accrued. They are not of that character. 166A does not simply bar proceedings being taken in the Supreme Court in relation to a cause of action which has already accrued. What 166A does is prohibit or stop the right of action ever accruing, and no right of action accrues until a certificate is made.

[11.06am]

PN165

In other words, no rights are created and once the certificate is issued, the immunity is gone, but it doesn't have the impact of creating rights that were not in place before. It doesn't have prospective - - -

PN166

VICE PRESIDENT ROSS: Because you say the effect of 166A is to never vest those rights. There is no accrual because of the immunity.

PN167

MR BROMBERG: That is exactly right. There is no accrual, no rights are created. This is very different to a situation where an Act might say there is a precondition to a person being able to exercise their rights in a Court. There are provisions. You see those sort of provisions sometimes in legislation where, for instance, the permission of the Attorney-General needs to be obtained in order to bring criminal proceedings in particular situations, so you need a fiat. What the High Court makes clear is that this is a very different provision. This provision ensures that the character of the immunity is such as to ensure that no rights come into play.

PN168

VICE PRESIDENT ROSS: Is there another interpretation open as to what they say? This is on 559, the second full paragraph, where the joint judgment makes the observation:

PN169

Properly construed, sections 166A and 170PM(3) are concerned solely to provide as to the future rights and liabilities of those involved in or adversely affected by lock-outs and industrial action ...(reads)... protected by the constitution. Hence there is no acquisition of property.

PN170

So 166A provides an immunity in relation to a right that may arise, but it will only arise on there being tortious conduct, so they are not directing it at rights that are accrued and valuable at the time the legislation is enacted. It is a contingent right, if you like. It is dependent on there being tortious conduct in the future.

PN171

MR BROMBERG: No, no, no, your Honour, they are not dealing with 166A and the impact of the Act. They are dealing with the character and the immunity and they are saying what the immunity does is prohibit a cause of action in tort from arising and therefore there is no extinguishment of any right and therefore no acquisition of any property. What the immunity does is it stops the cause of action arising. Their words are - they refer to a right of interest that is not accrued, a right of interest that does not exist.

PN172

SENIOR DEPUTY PRESIDENT LACY: The reference to Maxwell v Murphy seems to suggest that the construction that his Honour has just posited is possibly the construction that should be adopted.

PN173

MR BROMBERG: Well, I took it as being a reference - I haven't gone to the passage that is referred to, your Honour, but I took that reference as being no more than a reference to the well understood principle that legislation is not to be construed as operating prospectively.

PN174

SENIOR DEPUTY PRESIDENT LACY: Retrospectively.

PN175

MR BROMBERG: I am sorry, retrospectively, but is to be construed as operating prospectively. I don't know that anything more is intended by that. Our point is that once a certificate is issued, in order for it to have operative effect in relation to conduct that has ended, one needs to be satisfied that the issuance of the certificate has created a right, a cause of action that was not there before because there was nothing there before. Before the certificate is issued, whilst the immunity is in place, there is no cause of action there. The High Court makes that quite clear. Now, is the operative effect of the grant of a certificate to create a cause of action that was not there before and our answer to that is no and clearly without clear and unambiguous language, it should not be construed that Parliament so intended because what that situation calls for is retrospectivity and retrospectivity is not to be assumed without clear and unambiguous language.

PN176

Of course, the other thing that might be said against us which we say would be wrong is that the grant of the certificate makes the immunity void ab initio. In our respectful submission, that is not the correct construction. The grant of the certificate and the power to grant the certificate makes the immunity voidable, but there is nothing in the words and one would need very clear language in our respectful submission to come to the view that the immunity is to be regarded as void ab initio, especially where the effect of that is to create after the fact rights that were not there prior to the fact.

PN177

Now, we think that that makes it manifestly clear that a certificate issued under section 166 has no operative effect in relation to conduct which ended prior to the certificate being issued. It is equally clear that there is no point or purpose and certainly no obligation upon the Commission to consider issuing a certificate which would have no operative effect because the conduct in relation to which the certificate is sought has ended, so if you put yourself in the place of Commissioner Whelan on the Monday, the conduct has ended, there is an application for a certificate. Well, what is the point of the certificate?

PN178

VICE PRESIDENT ROSS: Because it can only operative prospectively on your submission.

PN179

MR BROMBERG: Yes, and that submission reinforces our more general submission as to the proper construction. At paragraph 25 and I just want to touch on it briefly, we say that the Commission was not as a matter of fact exercising conciliation, so the precondition which even my learned friend's analysis begins upon in order to get his argument up on paragraph B is that the Commission is exercising conciliation powers. Well, by the Monday the Commission was not exercising conciliation powers. The conduct had stopped. It is not conciliating anything and, indeed, even on the Friday, whilst there had been conciliation on the Friday, if you look at the transcript of the Friday at paragraph number 87, you will see that Mr Green - this is after the parties had gone into conciliation - you will see that Mr Green tells the Commissioner, he says:

PN180

The Commission has now had the benefit of speaking with the parties in conference, so the Commissioner is aware that the Commission and conciliation has been unable to resolve the matter.

PN181

So conciliation really ended on the Friday and it was certainly not in place on the Monday because the conduct had ended.

PN182

SENIOR DEPUTY PRESIDENT LACY: Does a duty arise at that point under paragraph (a) in subsection 6 to certify in writing that the matter, or that the Commission believes that the matter is more likely to - will not be able to stop the conduct promptly? When the Commissioner moves to exercise powers under section 127, after being in conciliation, does a duty arise then?

PN183

MR BROMBERG: No, your Honour, because what 166A(5) asks the Commission to do is to stop the conduct through the exercise of its powers under this Act. One of the powers is the conciliation power. Another of the powers is the section 127 power. And on any view - and we have not been asked to go to the other appeal - but on any view of where this was at on the Friday, one would come to the conclusion that there was no way that a certificate pursuant to paragraph (a) was able to be made. The circumstances for it were just not present.

PN184
The situation was that the Commissioner had before her evidence from the employer that if a 127 order was made that evening, the employer expected a return to work that evening. That is at PN171 of Friday's transcript where Mr Graham, I think it was, says that a 127 order would be a very significant benefit to the company and would facilitate a return to work of the nightshift. The Age would expect employees to come in that night and it would prevent what would be very serious damage to Sunday's Age.

PN185

So here you have the Commissioner having been told that the employer was confident that the grant of a 127 would result in a return to work. So I suppose this was just an aside to answer your Honour's question.

PN186

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN187

MR BROMBERG: But my first answer I think is sufficient, that conciliation is not the only way in which the Commissioner is entitled to try and stop the conduct. And we should make the point, and my learned friend did read this paragraph from Commissioner Whelan's decision of 28 August, and I just remind the Commission about it. It is paragraph 58 which was read earlier, where the Commissioner says:

PN188

While section 166A and B refer to the exercise of conciliation powers in relation to the industrial dispute, the Commission may clearly exercise other powers to stop the conduct such as those contained in section 127.

PN189

Exactly the point I am making. She goes on to say:

PN190

That is what occurred in this case.

PN191

It rather suggests that she was dealing with the 166A application, whether or not it was listed. She was exercising the sort of powers that 166A(5) contemplates be exercised. Now, we make the point about the fact that there is no evidence of substantial injustice. There is nothing but evidence of financial loss, and nothing that my learned friend has pointed to in reply in paragraph 21 or this morning is evidence of irreparable harm. It is all evidence of essentially financial loss.

PN192

VICE PRESIDENT ROSS: Are you saying that financial loss cannot constitute substantial injustice?

PN193

MR BROMBERG: Not of itself, your Honour, because financial loss would occur every time there is industrial action.

PN194

VICE PRESIDENT ROSS: What would constitute substantial injustice?

PN195

MR BROMBERG: Well, we say irreparable harm; something that calls for immediate relief. And that is really the purpose to which paragraph (b) is directed. It is the sort of thing that would found an urgent application to the Supreme Court, get the judge out of bed and get an ex parte injunction. It is that sort of thing that is contemplated by paragraph (b), not financial loss. Because if it was merely financial loss, then that would be - that element would be satisfied on every occasion there was industrial action.

PN196

And the other point we make is that where there is financial loss it needs to be put in context. I think I heard Rupert Murdoch on the radio three or four days ago talking about his company losing $300 million or was it billion dollars, I cannot remember?

PN197

MR GREEN: It was not billion.

PN198

MR BROMBERG: It was not billion? It might have been 300 million.

PN199

VICE PRESIDENT ROSS: I think it is more likely.

PN200

MR BROMBERG: Yes. Over OneTel. Yes, it might have been his son. But it was Rupert talking about it and the response was, well, in the context of all these billions of dollars that we have made this year I do not regard that sort of loss as very significant. Now, the point that we make is the Age tells us that they have - there was evidence of a million dollar loss. Now, what they did not do is put that in context. They gave us no evidence to indicate whether, if financial loss is the only indicator and sufficient with no more, there is no evidence before the Commission as to whether that is substantial or not in the context of the operations of The Age.

PN201

We say that for all of the reasons that we have gone to and those that are set out in our written submissions, leave to appeal should be refused. The questions raised, in our respectful submission, are really well settled. They have been dealt with by two Full Benches. The Transfield Full Bench and also the Full Bench decisions which are referred to in Transfield, that is Maritime Union of Australia v Patrick's. Both decisions stand for the proposition that after the 72 hours, there is no jurisdiction to grant a certificate.

PN202

Extension of time should be refused for reasons that I indicated at the outset. If the Commission pleases.

PN203

VICE PRESIDENT ROSS: Anything in reply, Mr Green?

PN204

MR GREEN: Yes, your Honours and Commissioner. The question about prospective operation, that submission of my learned friend suffers from a conceptual difficulty. The bar contained in subsection (1) of 166A is not directed to whether there be a cause of action. It is a bar upon the bringing of an action. The Legislature assumes there is a cause of action upon which the grant of a certificate is capable of operating. The Commission does not make a decision whether there is a cause of action; that is determined elsewhere. And the Commission in its own decisions has acknowledged that fact.

PN205

The conceptual difficulty is this: subsection (1) concerns itself with tortious conduct. The gist of a tort is damage. Every edition of Salmon on Torts will contain a passage to that effect. The tort is complete once damage is sustained. Now, in those circumstances, damage can be ongoing. You can keep inflicting damage and there will be a question whether that is a separate tort or bound up with the original tort, but they do not touch the questions with which this Full Bench is dealing.

PN206

What the High Court was saying in Victoria v The Commonwealth was the operation of the provision section 166A is prospective. It does not interfere, for example, with accrued rights. And the counterpart provision, I think it was 170NP in those days, was the lock-out provision, and that was in the same boat. There is a doctrine of protection of accrued rights that is recognised by the High Court in Esber's case, where the court develops a principle about protection of accrued rights.

PN207

That is the sort of context within which those observations in Victoria v The Commonwealth need to be understood. It is a big step; it is a big leap actually to go from saying, well, their Honours observe that the operation of the provision is prospective to saying when a certificate is granted it can only look forward, and that means the slate, as it were, is wiped clean behind the time at which the certificate is granted. So if there were anything in my learned friend's submission that might commend itself to you, we submit, for those reasons, you should reject that submission.

PN208

We also invite you to reject my learned friend's submission that substantial injustice equals irreparable harm. The Parliament has used the words it has used. It is not really helpful for my learned friend to say, well, it would be constituted by irreparable harm. Substantial means more than trivial, something that is real, and loss I think is - substantial loss - injustice - well, the Commission has daily contact with the notion of justice or injustice, and it can - one can confidently say it will recognise injustice when it sees it. One cannot prescribe these things. When one sees it, one identifies it.

PN209

VICE PRESIDENT ROSS: Sounds like a definition of pornography.

PN210

MR GREEN: That is a matter of which I am entirely innocent, your Honour. I would not be able to assist the bench at all when it came to that. The extension of time question, may we just inform the Commission on our instructions that our research has disclosed that on 28 August when the decision was handed down, it did not appear on the listings of the Commission and it did not appear in The Age law list that it was listed for decision that day. We are instructed that we received a copy of the decision, or our instructing solicitors received a copy of it in the mail with a "with compliments" slip from the Commission on 29 August.

PN211

And so, as from that time, we were, on that reckoning, within time. We have filed an application for an extension of time in respect of that appeal out of an abundance of caution. So if we can just inform the Commission of those matters.

PN212

VICE PRESIDENT ROSS: Mr Green, can I just ask you, you indicated in response to a question that the 166A matter was brought on on the request of your client on the Monday. When was that request made?

PN213

MR GREEN: I will need to take instructions about that, your Honour. Dr Creighton instructs us that it was first thing on Monday morning, your Honour.

PN214

VICE PRESIDENT ROSS: So it is - I suppose first thing might mean different things to different people. 8.30, 9 o'clock? Is that the - - -

PN215

MR GREEN: About that, yes, about that time. I know your Honour is a much earlier riser than that. Or anecdotal evidence is that your Honour is.

PN216

VICE PRESIDENT ROSS: Yes. I have got much further to travel these days, Mr Green.

PN217

MR GREEN: Well, I hope you still like returning to Melbourne, your Honour.

PN218

VICE PRESIDENT ROSS: Indeed. Is there anything further, Mr Green?

PN219

MR GREEN: No, there is nothing further we wanted to add, your Honour. It is for the reasons we have advanced we submit that on the substantive matter leave should be granted and, for the reasons we have propounded, the appeal upheld.

PN220

VICE PRESIDENT ROSS: Thank you. We propose to adjourn and reserve our decision in this matter.

ADJOURNED INDEFINITELY [11.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN SUBMISSIONS OF MR GREEN PN11
EXHIBIT #A2 SUBMISSIONS IN REPLY OF MR GREEN PN11
EXHIBIT #R1 SUBMISSIONS OF MR BROMBERG PN109