C2002/89, Transcript of Proceedings [2002] AIRCTrans 2459 (3 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT BLAIN
COMMISSIONER SMITH

C2002/89

APPEAL UNDER SECTION 45 OF THE ACT
BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION - WEST
AUSTRALIAN BRANCH AGAINST THE ORDER OF
DEPUTY PRESIDENT McCARTHY IN AG2002/6
IN PERTH ON 6 MARCH 2002

PERTH

10.05 AM, TUESDAY, 18 JUNE 2002

PN1

MR S. BIBBY: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union and I foreshadow an issue given the appearance of an intervener in the proceedings. With the permission of the Bench I would like to submit the formal authorisation that I have from the National Executive President to represent the ASU in these proceedings.

PN2

COMMISSIONER SMITH: You pursue your 170LK(4) point, Mr Bibby?

PN3

MR BIBBY: Sir?

PN4

COMMISSIONER SMITH: Are you pursuing your 170LK(4) point in the appeal?

PN5

MR BIBBY: Yes, sir, which particular point?

PN6

COMMISSIONER SMITH: That appropriate notice wasn't given.

PN7

MR BIBBY: Yes, sir. My intention, if I can just foreshadow the issues is that I will amend the grounds of appeal. I am seeking, sir to actually delete the first two grounds of appeal in this matter. Sir, I am just trying to understand your question.

PN8

COMMISSIONER SMITH: Well the question was that part of your appeal is that the employer didn't give the required notice that persons could be represented by a union.

PN9

MR BIBBY: Yes, sir.

PN10

COMMISSIONER SMITH: Now, do you withdraw that?

PN11

MR BIBBY: Yes, we do, sir.

PN12

COMMISSIONER SMITH: Now I understand your application for appearance.

PN13

MR BIBBY: Thank you, sir. Can I submit this document to the bench for its perusal?

PN14

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. That is the authority to appear for the union, Mr Bibby, is it?

PN15

MR BIBBY: Yes, that is correct, sir.

EXHIBIT #ASU1 AUTHORITY FOR MR BIBBY TO APPEAR FOR THE UNION

PN16

MR BIBBY: Sir, if it will assist the Bench, I also have a copy - a full copy of the rules. And the significance of that is that the authorisation is given in accordance with rule 46(a) of the rules of the National Union.

PN17

SENIOR DEPUTY PRESIDENT WATSON: Well, before you go to that let's perhaps go to the other appearances and if any issue arises out of that you can address us on it. Yes, very well.

PN18

MR L. H. JOYCE: I appear on behalf of the City of Wanneroo.

PN19

COMMISSIONER SMITH: Mr Joyce, are you an officer of the City?

PN20

MR JOYCE: I am not, sir, I am - - -

PN21

COMMISSIONER SMITH: On what basis do you appear?

PN22

MR JOYCE: Commissioner, we appeared by - not written authority - but we certainly appeared in the initial matter on behalf of the City of Wanneroo. In respect of this matter, Commissioner we would seek leave of the Full Bench to appear on behalf of the City.

PN23

COMMISSIONER SMITH: As agent?

PN24

MR JOYCE: Yes, that is correct, Commissioner.

PN25

COMMISSIONER SMITH: Thank you.

PN26

MR JOYCE: Thank you.

PN27

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Thank you, Mr Joyce.

PN28

MR H. COLEBATCH: May it please the Bench, I seek leave pursuant to section 42 of the Act to appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union MEW WA branch.

PN29

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Colebatch. What is your interest in the matter? That organisation was not granted leave to intervene below.

PN30

MR COLEBATCH: Sir, we are in a rather unprecedented situation in that our organisation is in the process of de-amalgamation proceedings, this is rather unprecedented. A secret ballot was held on 24 August 2001, which voted quite overwhelmingly for the amalgamation. My organisation has since been instructed to draft documents to expedite that the amalgamation proceedings and those are in process at the moment. We do, we believe, have a interest in these proceedings. I have a petition from numerous members of our organisation here to that effect which I might - it might be an appropriate time to hand up at this stage.

PN31

SENIOR DEPUTY PRESIDENT WATSON: Well, what is your interest in the appeal?

PN32

MR COLEBATCH: Our argument, sir?

PN33

COMMISSIONER SMITH: What section of the Act allows us to allow you in as the union?

PN34

MR COLEBATCH: I'm rather caught out on that one. As I say, sir, I don't think there has been a case like this previously. We have always been the principal union for the outside work force in the matter. And we feel that the - sorry I will get the name right - Australian Municipal, Clerical, Administrative and Services Union West Australia branch has been poaching members and that this is contrary to the decision of the Court in Want v Foley.

PN35

COMMISSIONER SMITH: But this appeal has nothing to do with that, does it? The appeal is in relation, as I understand it, the issue of certification, the LK(4) issue is no longer pursued. The appeal is whether there was error in refusing intervention by the ASU and secondly, whether there was error in declining to make the ASU bound by the award pursuant therein 170M.

PN36

MR COLEBATCH: Sir, we are not opposed to the Commissioner's decision; we believe the appeal should not be upheld. However, if the appeal is upheld, we wish to be joined as a party.

PN37

COMMISSIONER SMITH: How? See, irrespective of what you say might be the merits of the case, how does the legislation facilitate us doing what you ask us to do? Firstly, to allow you in and secondly, even if we did that, to bind you to an agreement as a union.

PN38

SENIOR DEPUTY PRESIDENT WATSON: See the first issue goes back to section 43(2), as I understood it, before Deputy President McCarthy your organisation did not pursue the issue of intervention. You did not persist with the argument that you had met the requirements under 43(2) for intervention below.

PN39

MR COLEBATCH: Look, I am aware of the difficulty, sir. Perhaps I could take instructions on this if my own appearance could be stood down for a few moments?

PN40

SENIOR DEPUTY PRESIDENT WATSON: Yes. Perhaps we will continue with - I'm sorry, you wish to seek instructions. Do you want to a brief - - -

PN41

MR COLEBATCH: I would ask leave to stand down, sir, for a few moments.

PN42

SENIOR DEPUTY PRESIDENT WATSON: How long would you require, Mr Colebatch?

PN43

MR COLEBATCH: Ten minutes.

PN44

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Very well, we will adjourn the matter for 10 minutes.

SHORT ADJOURNMENT [10.13am]

RESUMED [10.17am]

PN45

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Colebatch?

PN46

MR COLEBATCH: Yes, may it please the Bench, sir, I believe my authority to intervene derives from section 43: Intervention Generally. That is intervening as an agent of the employees. I have, sir, here a petition, which I will seek to hand up, signed by a large number of the employees affected. There is also a Mr Brian McKendrew present in Court, who is a shop steward of our union who would certainly be prepared to give evidence here that I have been asked to act as the union's agent.

PN47

SENIOR DEPUTY PRESIDENT WATSON: Yes, so in effect, you would be appearing for individuals bound by the agreement, or party to the agreement?

PN48

MR COLEBATCH: Yes, I would.

PN49

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN50

MR COLEBATCH: Thank you, sir.

EXHIBIT #C1 PETITION SIGNED BY EMPLOYEES

PN51

SENIOR DEPUTY PRESIDENT WATSON: Mr Bibby, do you have any view in relation to that?

PN52

MR BIBBY: Yes, sir. I hear now the grounds on which my friend is seeking to intervene. I would now like to return to the preliminary issue that I raised and that would be apposite in regard to his application to seek intervention. And that is, we are seeking to amend the grounds of appeal by deleting the first two grounds. Now the effect of that, as we would see it, is that the ASU are not seeking to challenge the validity of the notice. It therefore would be our position that we are only seeking, once again, to be bound to the provisions of the agreement. That being the - - -

PN53

SENIOR DEPUTY PRESIDENT WATSON: And you say individuals who are party to the agreement would not have an interest in that issue?

PN54

MR BIBBY: Yes, sir, on the basis that their agreement stands. It would not be disturbed, it continues in force, therefore the provisions of that agreement would continue to apply to them. The issue now, as we are submitting, is the question of whether the ASU should be bound to the agreement and foreshadowing the issues that my friend has raised concerning dis-amalgamation. And these were issues that were raised in the original hearing.

PN55

That there should simply be no concern on their part on the basis that, pursuant to section 253ZS of the Workplace Relations Act, if the ASU are made party to this agreement and the dis-amalgamation goes ahead, then this agreement will - or orders will issue whereby the agreement will obviously follow the MEU branch and obviously their interests will be preserved in that regard. So, as we argued in the original proceedings, their interests are in no way prejudiced by the ASU being made party or being bound to the agreement, in fact to the contrary. Their interests would be preserved in the longer term.

PN56

So, on that basis, we can't see any need for intervention in this matter, the employees agreement stands. It is just simply a question of whether the ASU should be bound. We can't see how that in any way affects the interests of the employees.

PN57

SENIOR DEPUTY PRESIDENT WATSON: Well they do have an interest from what you're putting. You're putting that their interest is served by the ASU appeal.

PN58

MR BIBBY: Well, sir, once again, it is the case that we do have members in this organisation who are covered by this agreement and pursuant, once again I think to 43(2)(a). If one of those members - members of the West Australian branch seeks for the union to represent the interest then, as we would put it, we are - - -

PN59

COMMISSIONER SMITH: One of the members of the ASU?

PN60

MR BIBBY: Yes, that is correct, sir. One of the members of the ASU, the National Union, then we are simply representing their interests. Once again, those who are bound by the agreement and may be a member of the other branch, are in no way prejudiced by this application. And on that basis we would say leave should not be granted to the party. Thank you.

PN61

SENIOR DEPUTY PRESIDENT WATSON: Very well. Mr Joyce, did you have anything on that?

PN62

MR JOYCE: Thank you, your Honour. Your Honour, in the initial proceedings before Deputy President McCarthy, I indicated on behalf of the City of Wanneroo that no objection would be raised to either union, or either branch of the union being made party to the agreement. And we indicated that our ability to object to that were seen to be limited in any event.

PN63

SENIOR DEPUTY PRESIDENT WATSON: Yes

PN64

MR JOYCE: On that basis, your Honour, we would maintain that line we have no objection to Mr Colebatch's intervention.

PN65

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. We do grant you leave, Mr Colebatch, to intervene representing individuals who are party to the agreement and an intervention is granted on that basis. Can I, before we proceed further, just check whether there is any objection to Mr Joyce being granted leave to appear as agent for the City of Wanneroo?

PN66

MR BIBBY: No, sir.

PN67

SENIOR DEPUTY PRESIDENT WATSON: No. Very well leave is granted, Mr Joyce.

PN68

MR JOYCE: Thank you, sir.

PN69

SENIOR DEPUTY PRESIDENT WATSON: Mr Bibby, I think probably the first thing you should do is take us through the proposed amendment to the grounds of appeal.

PN70

MR BIBBY: Thank you, sir. Sir, we seek formal application before the Bench to strike out grounds 1 and 2 of the application.

PN71

SENIOR DEPUTY PRESIDENT WATSON: What about the grounds under section 45 that are relied upon. Is an appeal available under 45(1)(b) or (c) in relation to the matter?

PN72

MR BIBBY: Sir, we would be seeking - if I can just turn to that section - we are seeking in effect to a variation of that order to enable the National Union, the ASU, to be bound to the LK agreement.

PN73

SENIOR DEPUTY PRESIDENT WATSON: And presumably that leads you to 45(1)(g), rather than (b) or (c), does it not?

PN74

MR BIBBY: Well, sir, I - - -

PN75

SENIOR DEPUTY PRESIDENT WATSON: See an order under section - if one goes to definitions of award or order, it is referrable to section 143 - section 143(2) I think, specifically excludes certification of agreement as an order.

PN76

MR BIBBY: Sir, if I could just turn to that section.

PN77

SENIOR DEPUTY PRESIDENT WATSON: Yes, I'm just looking for it - here it is, 43 - 143(1)(a). Your complaint is not in any case for the certification of the agreement but, firstly the failure to grant intervention under 43(2) and secondly, the refusal to make the ASU a party bound by the agreement, 170M.

PN78

MR BIBBY: Yes, sir that is correct. Therefore, sir, we would amend that submission and seek relief pursuant to 45(1)(g).

PN79

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. And that leaves us basically with a two step process. The decision in respect to intervention under 43(2), because absent any right to intervene under 43(2) and indeed in the context of a requirement not to grant leave under 43(2), then ASU would not have any standing to appeal in respect to the 170M point, would it?

PN80

MR BIBBY: Well, sir, see if I understand you. We are back now to section 43(2)(a), is that correct?

PN81

SENIOR DEPUTY PRESIDENT WATSON: Well, I'm sorry, I've cut you off in terms of your amendment of the notice. Were they the only amendments to amend 45(1)(b) and (c) to 45(1)(g), delete the first two grounds?

PN82

MR BIBBY: Yes, sir.

PN83

SENIOR DEPUTY PRESIDENT WATSON: That leaves it, as I understand it, with essentially - there are some other issues as to reliance on particular matters, but the issues essentially are the decision of the Deputy President not to grant leave under 43(2).

PN84

MR BIBBY: Yes, sir.

PN85

SENIOR DEPUTY PRESIDENT WATSON: And the decision not make the ASU a party bound under section 170M.

PN86

MR BIBBY: Yes, sir.

PN87

SENIOR DEPUTY PRESIDENT WATSON: They are essentially the issues.

PN88

MR BIBBY: Those are the issues that are before the Bench.

PN89

SENIOR DEPUTY PRESIDENT WATSON: The first - the point I'm making, if there is no right for intervention before the Deputy President and if he was correct in his decision not to grant leave - sorry not to, yes grant leave to intervene, then the ASU would not have standing to bring the appeal in respect of 170M, not being an aggrieved party.

PN90

MR BIBBY: Yes, sir, I now understand the two step process and would agree with that.

PN91

SENIOR DEPUTY PRESIDENT WATSON: You agree with that?

PN92

MR BIBBY: Yes.

PN93

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN94

MR BIBBY: So that, in effect, the, as I understand it and I'm not yet into my submissions, but what I would say is, yes we would agree with that process, that intervention should have been granted, that rights - or once intervention had been granted then other rights that reside within the Act should have been afforded to the ASU in the proceedings and that then leads on to the question of 170M.

PN95

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Is there any objection to the application to amend the grounds of appeal?

PN96

MR JOYCE: Your Honour, certainly not on the City's part. If granted by the Full Bench, your Honour, then effectively that satisfies the City's concerns in relation to this matter. Our submissions were limited to grounds 1, 2 and 5 of the ASUs appeal. In respect of ground 5, ultimately from the City's perspective nothing really turns on that so, if the amendment, as sought by Mr Bibby, is in fact granted then the City effectively becomes an interested onlooker rather than a necessary participant in these proceedings.

PN97

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Thank you. Well, on that basis if you - if, on amendment of the grounds of appeal, the City of Wanneroo wishes to withdraw that is obviously available to you.

PN98

MR JOYCE: Thank you, sir.

PN99

SENIOR DEPUTY PRESIDENT WATSON: Mr Colebatch, did you have anything on that issue?

PN100

MR COLEBATCH: No, sir.

PN101

SENIOR DEPUTY PRESIDENT WATSON: No, very well. We grant to leave to amend the appeal grounds by altering the section relied on from 45(1)(b) and (c) to 45(1)(g) and deleting the first two grounds of appeal. That leaves grounds 3 to 8. Yes, now we have received written submissions in relation to the appeal. Perhaps we will mark the ASUs written submissions ASU2. The submissions, presumably they are on behalf of the individuals, Mr Colebatch, exhibit C2; and the City of Wanneroo's submissions exhibit W1.

EXHIBIT #ASU2 ASU'S WRITTEN SUBMISSIONS

EXHIBIT #C2 MR COLEBATCH'S WRITTEN SUBMISSIONS ON BEHALF OF INDIVIDUALS

EXHIBIT #W1 CITY OF WANNEROO'S WRITTEN SUBMISSIONS

PN102

SENIOR DEPUTY PRESIDENT: As per the directions, the parties interveners now have a brief - an option to put brief oral submissions in support of their submissions. Mr Bibby

PN103

MR BIBBY: Thank you, sir. Sir, if I could just - just a short procedural matter. You will note in the written submissions that there is an addendum where I indicate that during the proceedings reference was made to division 7 of the ASUs national rules. It so happened just through the process that those full rules were not submitted into evidence. If it would assist the Commission, I do have a full copy of the rules which I can submit. It is a rather bulky document.

PN104

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, we will receive those, Mr Bibby, we will be assisted by that. And that is a copy of the Commission version of the rules, Mr Bibby?

PN105

MR BIBBY: Sorry, sir?

PN106

SENIOR DEPUTY PRESIDENT WATSON: That is a copy of the Commission's version of the rules?

PN107

MR BIBBY: Yes, it is.

PN108

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. With that being so, well perhaps for identification we will mark it exhibit B3.

PN109

MR BIBBY: Sir, the only other request made in the directions was to submit - - -

PN110

SENIOR DEPUTY PRESIDENT WATSON: I'm sorry, ASU3, sorry.

EXHIBIT #ASU3 COPY OF THE COMMISSION VERSION OF ASU'S NATIONAL RULES

PN111

MR BIBBY: Now the only other direction that we need to comply with is to submit copies of the decisions that will be relied upon in this decision - in this matter, I do apologise to the Associate. These will of course be amended in the sense that the first two grounds have been amended, so some of those decisions will not be relied upon.

PN112

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN113

MR BIBBY: Sir, if it pleases the Bench, what I intend to do is just give a very brief background to the matter, give reasons why we believe in the public interest the matter should be - leave should be granted, briefly address the written submissions in accordance with the directions given and, finally, we will seek to expedite the matter and we are going to put a submission to submit two documents that were not permitted to be put into evidence in the first instance. I will get to that matter in due course.

PN114

SENIOR DEPUTY PRESIDENT WATSON: In respect to which issue?

PN115

MR BIBBY: It is in respect to the fact that - just to prove that we had union membership at the site, in - - -

PN116

SENIOR DEPUTY PRESIDENT WATSON: At the time of the notice?

PN117

MR BIBBY: Yes, at the time of the notice.

PN118

SENIOR DEPUTY PRESIDENT WATSON: Yes. And why were you prevented - why was that not put in below?

PN119

MR BIBBY: Sir, if one looks at the transcript on the final page, I think my understanding of the Deputy President's position was that leave was not granted to intervene in the proceedings.

PN120

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN121

MR BIBBY: At paragraph 382 - firstly at paragraph 381, my submission was that: it was my intention to run through 170M of the Act and to supply the Commission with the appropriate evidence. The Deputy President responds, "Well, Mr Bibby, I'm not going to and my intention is this"; and then he takes it from there. Perhaps, sir, if I get to that point a little later - - -

PN122

SENIOR DEPUTY PRESIDENT WATSON: I'm sorry, could you just go back a step there. Paragraph 379 seems to suggest that the evidence there being referred to was referrable to section 170M(3)(c).

PN123

MR BIBBY: Sorry, sir, 379?

PN124

SENIOR DEPUTY PRESIDENT WATSON: 379, paragraph number 379. You are saying that, "members did in fact request that we notify the Commission" - which relates to the 170M requirements. "It was my intention to run through that particular section" - presumably 170M, which you would only do if you were granted intervention. Why do you say that the indication of the supply of further evidence went to the intervention point?

PN125

MR BIBBY: Sorry, sir, yes I'm getting ahead of myself. I just wanted to, once again, follow the direction that you have suggested that there is a two step process here. In the second step and, once again, the aim is to expedite the matter. My proposal to the Bench was that I would be granted leave to submit further evidence pursuant to 45(6)(a) on the basis that, as I said before, that those documents were not put before the Commission, in effect because the Deputy President formed a view at that stage that he didn't need to see it.

PN126

SENIOR DEPUTY PRESIDENT WATSON: Because he was refusing to grant intervention?

PN127

MR BIBBY: Yes, sir.

PN128

SENIOR DEPUTY PRESIDENT WATSON: But that would be a correct approach, would it not? If the union were not able to intervene under the Act, then the Deputy President would not want to be addressed on matters beyond intervention.

PN129

MR BIBBY: I agree, sir. Yes, sir, I agree with that. I guess what I'm saying is if this Bench were to accept the arguments in grounds 3 to 8, in effect we then move in part to the second requirement, or the second step as you put it, concerning 170M. And what I'm saying is we are - - -

PN130

SENIOR DEPUTY PRESIDENT WATSON: But you only get there if you satisfy us that the Deputy President erred in refusing intervention. If intervention were not allowed under the Act 43(2), then you would not have standing to appeal on issues beyond that, would you?

PN131

MR BIBBY: Yes, sir, I would agree. I was just giving a brief overview of where I was going, so I was perhaps ahead of myself.

PN132

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN133

MR BIBBY: Sir, if I just move quickly to the background of this matter. It was simply the case that the ASU sought to be bound to this particular agreement pursuant to section 170LM. It did so under the direction of its members, members who will be working under the terms and conditions of the agreement. And, as has already been indicated by the respondent in the matter, in this matter the employer had no objection to this particular course of action. But, as is evident from the decision of the Commission, this request, this submission was rejected.

PN134

COMMISSIONER SMITH: Is it in the materials, the letter requesting you to represent the interests of members?

PN135

MR BIBBY: Yes, sir, it is. Right at the back under: Other Relevant Documents.

PN136

COMMISSIONER SMITH: Yes.

PN137

MR BIBBY: That is dated 21 December and that is the letter that was sent initially to the Registrar and then there are second letters that were sent of its intention to be bound pursuant to 170M.

PN138

COMMISSIONER SMITH: Is there any evidence of the request by the members to the union?

PN139

MR BIBBY: Sir, once again, that was the document that was not permitted to be put into - - -

PN140

COMMISSIONER SMITH: I see, that is the document you have, is it?

PN141

MR BIBBY: Yes, sir.

PN142

COMMISSIONER SMITH: I see.

PN143

SENIOR DEPUTY PRESIDENT WATSON: What we will do, Mr Bibby, we will receive the document but its admission will obviously be subject to our decision in relation to 43(2) point in the event that you don't succeed on that then the Full Bench, and indeed Deputy President McCarthy would never have got to and has no need to get to the 170M point. So we will admit it on that basis. We will mark it ASU4.

PN144

MR BIBBY: Sir, if I could submit, once again, two documents. The first is the notification and then there are two Statutory Declarations.

PN145

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN146

MR BIBBY: Sir, if I could also submit three statutory declarations. The first document should be dated 21 January 2002.

PN147

SENIOR DEPUTY PRESIDENT WATSON: That will be ASU4 and that is a document headed: To Whom It May Concern, we the undersigned, as members of the ASU would like the union to represent us with the City of Wanneroo's Enterprise Bargaining Agreement.

PN148

MR BIBBY: And attached to that - - -

PN149

SENIOR DEPUTY PRESIDENT WATSON: And there are, attached to that 674, yes?

PN150

MR BIBBY: - - - is a document which is a table, which contains the names of the employees in question who signed the document, indicating that they were financial members of the West Australian branch of the ASU.

PN151

SENIOR DEPUTY PRESIDENT WATSON: At what time? At that time?

PN152

MR BIBBY: Well it is - at that time it is - - -

PN153

SENIOR DEPUTY PRESIDENT WATSON: 14 February 2002.

PN154

MR BIBBY: It is signed at 14 February by our branch secretary.

PN155

COMMISSIONER SMITH: Yes, don't confuse me with branches.

PN156

MR BIBBY: Sorry, sir. I will keep it very simple.

PN157

COMMISSIONER SMITH: Well it is the registered organisation.

PN158

MR BIBBY: Thank you.

EXHIBIT #ASU4 DOCUMENT HEADED: TO WHOM IT MAY CONCERN; WITH TABLE ATTACHED OF SIGNATURES OF EMPLOYEES WHO SIGNED THE DOCUMENT

PN159

MR BIBBY: The second document that has been submitted are three separate statutory declarations, one from Jeffrey Michael Isaacs, Edward Cook and Leslie William Allen.

PN160

SENIOR DEPUTY PRESIDENT WATSON: They will be marked collectively ASU5 and described as you have identified them, Mr Bibby.

EXHIBIT #ASU5 THREE SEPARATE STATUTORY DECLARATIONS FROM JEFFREY MICHAEL ISAACS, EDWARD COOK AND LESLIE WILLIAM ALLEN

PN161

MR BIBBY: Once again, aware of the purpose of submitting the documents but ASU4 indicates in the document that has been submitted that those members sought the ASU to assist them. The statutory declarations marked ASU5 then goes through in further detail indicating that the members wished the ASU to represent its interests in the matter.

PN162

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN163

MR BIBBY: Sir, if I can just - if it pleases the Bench I will submit, firstly why we believe it is in the public interest for the Full Bench to hear this matter and we raise four matters in regard to the application, as it relates to grounds 3 to 8.

PN164

SENIOR DEPUTY PRESIDENT WATSON: Yes, sorry, go ahead.

PN165

MR BIBBY: We would submit that if the decision is undisturbed, it is authority for the position that a union should not be given right of intervention irrespective of the obligations required by section 43(2)(a). Secondly, it would be authority for the position that unions in LK proceedings would not be granted the full latitude of section 98A and section 110(2)(c) and, therefore, a stricter test would apply in regard to being bound to such agreements.

PN166

SENIOR DEPUTY PRESIDENT WATSON: Do you take the view that the generality overrides the specific?

PN167

MR BIBBY: Yes, sir, I think it is a background in - - -

PN168

SENIOR DEPUTY PRESIDENT WATSON: It is a curious approach to law, isn't it?

PN169

MR BIBBY: Well, the two have to be read in conjunction. I'm saying that in the public interest there are some serious issues about - which I think it would be our respectful submission that the approach taken is overly legalistic and therefore does restrict the rights that a party has if that approach is taken.

PN170

COMMISSIONER SMITH: Are you taking the view that the approach taken is contrary to law?

PN171

MR BIBBY: Well yes, sir, in effect.

PN172

COMMISSIONER SMITH: Yes.

PN173

MR BIBBY: I am saying it. And we would say a very significant issue which we would want to certainly highlight is that the end result of this decision is that employees are denied access to fundamental rights by virtue of the approach taken. In effect, these employees no longer have the ability for the union to enforce the agreement. In effect, these members no longer have the ability to get the union to vary, to extend or terminate the agreement as is provided under the Workplace Relations Act.

PN174

And we would suggest that the three grounds combine to strongly suggest that at least one of the objects of the Act, and we refer specifically to section 3(e), are in effect thwarted. And we would say the end effect of this decision is that it denies fair and effective agreement making for those members who sought to be bound to the agreement. On that ground, we are saying that in the public interest this appeal should be - leave should be granted for this appeal to be heard.

PN175

Once again, consistent with the directions given, I will give brief submissions in regard to each of the grounds that remain in this appeal. In terms of ground 3, which is a crucial ground in terms of the first step, we would say that the Commission, at first instance, should have granted leave to the union intervene in the proceedings. At paragraph 382, after extensive submissions that suggested it did have authority to represent its members and also that the union intended to lead further evidence in regard to the particulars of section 43(2)(a), the Deputy President did not grant the union leave.

PN176

When one makes reference to 43(2)(a), it is our submission that there is very significant words, read as follows:

PN177

If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission -

PN178

and here is the crucial word:

PN179

must on application grant leave.

PN180

SENIOR DEPUTY PRESIDENT WATSON: Well, there is a number of crucial words here. The first is that:

PN181

If the matter is application under Division 2 or 3 of Part VIB.

PN182

Well that has been met.

PN183

...grant leave in the matter to any organisation of employees that was requested to represent a person, as mentioned in LK4 in relation to the agreement provided the request is not withdrawn.

PN184

Which takes you to LK4, there are some other important words, and if I can find that:

PN185

Any person whose employment will be subject to the agreement is a member of the organisation of employees.

PN186

And you say that requirement is met?

PN187

MR BIBBY: Well, sir, yes. We no longer challenge that, the Deputy President in the first instant found that the provisions of LK4 had in fact been complied with and on - - -

PN188

SENIOR DEPUTY PRESIDENT WATSON: Well these are really descriptions of the person and organisation in order to ensure that the requirements of 43(2) are met where they are referrable back to LK4. So the person has to be subject to employment, a member of the organisation of employees and that organisation is entitled to represent the person's industrial interests.

PN189

MR BIBBY: Yes, sir.

PN190

SENIOR DEPUTY PRESIDENT WATSON: You say those requirements were met?

PN191

MR BIBBY: Yes, sir, and once again by reference to the statutory declarations in ASU5, it was our intention to bring that to the attention of the Deputy President in the proceedings, but we were not permitted to do that.

PN192

COMMISSIONER SMITH: But didn't the Deputy President's decision turn on another matter? He said you hadn't complied with your rules.

PN193

MR BIBBY: Yes, sir. But what we are saying is and, once again - - -

PN194

COMMISSIONER SMITH: He said you weren't in a - - -

PN195

MR BIBBY: - - - in terms of the grounds that will follow this, it is our submission that in fact we did.

PN196

COMMISSIONER SMITH: I understand that but that is the ground upon which he said that you hadn't properly notified either the Commission or the employer, as required under the Act, because you hadn't acted in accordance with your rules. That is as I understand the Deputy President's decision.

PN197

MR BIBBY: Yes, sir, and I think his reference is to section 170LM(3)(c), as I would - - -

PN198

SENIOR DEPUTY PRESIDENT WATSON: M(3), no L.

PN199

MR BIBBY: Sorry, no L, sorry. One gets very confused with the - - -

PN200

COMMISSIONER SMITH: Everything is under section 170.

PN201

MR BIBBY: Yes. I think his point related to section 170M(3)(c), and it relates to the letters that were submitted. He was suggesting, as I understand it, that the letter was signed by myself and that I didn't hold the office of Assistant Branch Secretary. What I'm saying is that, in terms of 43(2)(a), in the first instance what I'm saying there is ground - and as we go to grounds 4 and 6, it is evident that certainly there is evidence before the Commission that the National Executive's President had in fact given authority for the WA - for the ASU to act in this matter. And, on that basis, we are relying on that ground and the evidence that was put before the Commission to - - -

PN202

COMMISSIONER SMITH: What page is that contained in your argument?

PN203

MR BIBBY: Sorry, it is grounds 4 and 6.

PN204

COMMISSIONER SMITH: Grounds 4 and 6. And that is covered in your outline of argument?

PN205

MR BIBBY: Yes, sir, I'm coming to that.

PN206

COMMISSIONER SMITH: Yes, thank you.

PN207

MR BIBBY: But if I can go back to 43(2)(a). Our submission and the decision that we have submitted is the Egan Brothers Plumbing Building Services Enterprise Agreement at Print S9378 and in the dicta of the decision it does the word "must", as a word of absolute obligation. Its use in these subsections is not merely directory. We are therefore submitting that section 43(2)(a) includes the term "must" on application. Now, if I now turn to grounds 4 and 6, I think what we would be arguing is that in fact we had made that application in accordance with the authority resident within the rules of the union, that that was properly done in accordance with the rules. So, if I move now to grounds 4 and 6 - - -

PN208

SENIOR DEPUTY PRESIDENT WATSON: Well, sorry, before you do, where do you say that authority arises in the rules?

PN209

MR BIBBY: Sorry, sir?

PN210

SENIOR DEPUTY PRESIDENT WATSON: Where does the authority arise in the rules?

PN211

MR BIBBY: Sir, rule 46. There is two sections that I think we need to be cognisant of.

PN212

SENIOR DEPUTY PRESIDENT WATSON: Finding them is always the problem.

PN213

MR BIBBY: Sorry, 46 and 47.

PN214

SENIOR DEPUTY PRESIDENT WATSON: "Arbitration Proceedings"?

PN215

MR BIBBY: No, sorry, rule 47, sir.

PN216

SENIOR DEPUTY PRESIDENT WATSON: "Industrial Agreement", sorry.

PN217

MR BIBBY: It says:

PN218

Industrial agreements may be entered into under subsection (a) on behalf of the union with the authority of the National Executive; (b) -

PN219

well, that relates to statutory modification or amendment thereof. But also (c), and this letter was in fact submitted into evidence in the proceedings.

PN220

Any industrial agreement -

PN221

and I will skip "and/or" -

PN222

made in respect of members in one branch may be entered into and executed and may from time-to-time ...(reads)... agreement not be executed and be referred to the National Executive.

PN223

SENIOR DEPUTY PRESIDENT WATSON: Was this agreement made pursuant to any State law?

PN224

MR BIBBY: No, sir. Our reading of that rule is, if I just go back to it - - -

PN225

SENIOR DEPUTY PRESIDENT WATSON: "And/or".

PN226

MR BIBBY: "And/or", I think is the significant clause.

PN227

SENIOR DEPUTY PRESIDENT WATSON: "And/or", yes.

PN228

MR BIBBY: So any industrial agreement made pursuant to a State law or made in respect of members of one branch.

PN229

SENIOR DEPUTY PRESIDENT WATSON: So it is the second leg you are relying on.

PN230

MR BIBBY: Yes, sir.

PN231

SENIOR DEPUTY PRESIDENT WATSON: Yes. Look, I think Deputy President McCarthy in his decision distinguished between rules permitting persons to enter into and execute an agreement as against providing the relevant notice under one section, M, of an intention to be bound by the agreement.

PN232

MR BIBBY: Sorry, sir, I missed the question?

PN233

SENIOR DEPUTY PRESIDENT WATSON: The Deputy President I think distinguished between the authority to make, enter into or execute an agreement as distinct from the authority indicate an intention to be bound by an LK agreement.

PN234

MR BIBBY: Yes, sir. I will see if I understand you correctly. I think his point that then pushes us over into the second leg, as I would understand it, as to whether authority was given to notify the Commission pursuant to 170M, I think (3)(c).

PN235

SENIOR DEPUTY PRESIDENT WATSON: Yes. Yes.

PN236

MR BIBBY: So they are interlinked, as I would understand it. But I think we get back now to the question of the intervention in the first instant. If we understand the process that is contained within the Act, it follows that there is an application for intervention. My submission is that that application was properly made. That is, with the full authority of the National Executive to intervene in those proceedings. The next step is then the question of whether in fact we have complied with the provisions of 170M.

PN237

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN238

COMMISSIONER SMITH: Is that right?

PN239

MR BIBBY: That would be my views.

PN240

COMMISSIONER SMITH: Can I put it the other way. Your intervention is only permitted by compliance with the Act, namely if you had been requested to represent a member. That is right isn't it?

PN241

MR BIBBY: Yes, sir.

PN242

COMMISSIONER SMITH: And you say that was in place?

PN243

MR BIBBY: Yes and if we can just go back. The steps, as I understand it is, that a notice is given by the employer pursuant to LK4.

PN244

COMMISSIONER SMITH: Yes.

PN245

MR BIBBY: Those employees would then become aware of their right to have a union to represent their interests, in the chain of the process they would then get in contact with their union, and we are submitting that in terms of ASU4 and 5 that occurred.

PN246

COMMISSIONER SMITH: Yes

PN247

SENIOR DEPUTY PRESIDENT WATSON: ASU5 suggests the members requested the union represent their interests prior to the notice of intention, which was exhibit A1 in the initial proceedings, that was dated 5 November.

PN248

MR BIBBY: Sir, paragraph 6 of the statutory declaration, we would say at no time did they withdraw their authorisation to represent our interests. So, yes, by virtue of the history of this matter it went a long time. My point is that the members became aware, through whatever means, contacted the union, in fact the employer contacted the union and the union got involved in the proceedings. Once again, what we would say is in terms of the process, that those employees notified the union. The union then took steps and it took, in effect, two steps. It authorised certain people to represent the interests of the union. It also notified another branch of the union that it had done so and that was submitted into evidence via a letter.

PN249

Now, my point is then that what is the next step in the process. It is receiving the notification for the hearing and then in the process the union would then be seeking intervention at the beginning of the proceedings. My understanding of the proceedings as it unfolded was the questions that were raised addressed the issue of whether in fact we had authority to make that application for intervention and that was never granted. It does in fact also set a context in which it was difficult for the union to explore all of the issues given that it hadn't been granted leave to intervene.

PN250

If I can turn now to grounds 4 and 6, and this raises the question of whether authorisation existed for the Acting Assistant Branch Secretary to sign the letter required in 170M(3)(c). Sir, if it pleases the Bench, we refer to paragraph 163 of the transcript, where the Branch Secretary indicated:

PN251

And more recently in the last fortnight when the National Executive Presidents indicated that ...(reads)... a party to this agreement and protecting the interests of all parts of the organisation.

PN252

Now, as is contained in our written submissions, it is pointed out that that last fortnight would have, in effect, been two weeks prior to the day of the hearing, which was 14 February. We also note from the standpoint of rule 18 of division 7 of the rules and, once again, division 7 is found at page 154 of the rules that have been submitted. It is noted that the Assistant Branch Secretary is required to carry out the directions and instructions of the Branch Secretary. Then at paragraph 290, I indicated that I had acted under the Branch Secretary's authority in signing the letter dated 5 February 2002. Once again, that is found in the section of the appeal book marked "Other Relevant Documents". The significance of that is, what we are saying is we had in fact complied and notified the Commission in accordance with 170M.

PN253

We are saying that in the light of the evidence that was submitted to the Commission, and admittedly we were not permitted to submit further evidence, it was open to the Commission to draw the conclusion that the letter of 5 February was signed under the authority both of the National Executive Presidents and the Branch Secretary of the WA branch of the union.

PN254

COMMISSIONER SMITH: Is that why we say we should grant you relief from the rules? See you haven't submitted a statutory declaration.

PN255

MR BIBBY: Well, I will get to that, which is the next submissions.

PN256

COMMISSIONER SMITH: Yes, but you say it is inconsistent with law.

PN257

MR BIBBY: Well, I put a submission to that effect.

PN258

COMMISSIONER SMITH: Yes. Doesn't the rules simply assist the Commission in determining the application of the Act? Now what you are seeking to do is give us evidence which could have conveniently been done under 49(2). Which the learned Deputy President below found that you hadn't complied with.

PN259

MR BIBBY: With due respect, sir, we were not given an opportunity to address that point in the original hearing.

PN260

COMMISSIONER SMITH: I see.

PN261

MR BIBBY: Because, quite literally, the matter ended very quickly and the matter was adjourned and the order issued. Now, if those issues had been brought to the attention of the union, then we could have put further submissions around that very point. But we were not - - -

PN262

COMMISSIONER SMITH: So you say there is sufficient evidence to comply with the legislation and sufficient evidence for us to grant you leave from compliance with 49(2)(c)?

PN263

MR BIBBY: Yes, sir.

PN264

COMMISSIONER SMITH: I follow.

PN265

MR BIBBY: Okay. If I can now turn to that ground, ground 5, which now addresses the question of whether there was a requirement that a statutory declaration be submitted in rule 49 needs to be complied with. Now, we would submit that we believe that there is an anomaly here and we, in part, have been alerted to this anomaly through the decision of Deputy President McCarthy in a matter titled: St John of God Pathology Enterprise Agreement 2002, print PR915205, which was issued on 13 March.

PN266

It is contained in the decisions that have been submitted and I think it is the very last decision in that book. It is quite clear there wasn't a statutory declaration lodged with the Commission but, as I have said, that was never raised in the proceedings. Our submission is that, if one looks at rule 49(2)(c) it appears, in our view, to be inconsistent with the Act, particularly section 170M(3). We are submitting that the effect of rule 49(2)(c) has confused the process envisaged by the Act and is irrelevant.

PN267

What we are saying is that, once again, one has to go back to, if you like, the structure of LK agreements which, by their title, are non-union agreements. The union, in many respects, may well have no understanding that the negotiations are going on, although in this case it did. But, in effect, the application is made by the employer after the agreement has been made. Now, significantly, we would submit that in regard to an LK matter, we are not seeking to make application for the agreement, it is not a 170LJ agreement. We are not a party, as it were, going to the Commission to have the agreement formally certified. All we are seeking is to be bound to the agreement pursuant to section 170LM. Now, in terms of 170LM(3) we note that the only requirement is quote:

PN268

That before the agreement is certified the union must notify the Commission and the employee in writing and indicate that it wants to be bound by the agreement.

PN269

The distinction we want to hold in this submission is that the requirement is before certification. That is, at the time it goes to the Commission and not at the time of application. In effect, we are saying that is where the anomaly exists. We would submit that 170M(3) envisages a separate and discrete process which, provided the union complies with the requirements of that section, should ensure that they are bound to the agreement.

PN270

SENIOR DEPUTY PRESIDENT WATSON: Just a moment please. The rule itself is presumably a reflection of the fact that the evidentiary material essentially is in statutory declarations and that the Commission wishes to have that material before it at the time of a hearing in order to consider that evidentiary material, including the view under statutory declaration of an organisation as to what it wishes to be bound as to relevant matters.

PN271

MR BIBBY: Yes, sir. But then, I guess, our submission - and once again, we rely on the decision of Deputy President McCarthy in St John of God Pathology. What we are saying is surely it is simply the case that we have got two separate and discrete processes, 170M on the one hand and by virtue of its linkage to section 170LK, section 43. We are saying, in effect - and I guess a separate submission that we would put is that, there are two steps to this. The first is, we would submit that that should have been brought to our attention in the proceedings.

PN272

COMMISSIONER SMITH: Why? Why wouldn't you comply with the rules of the Commission? Why do we have to bring it to your attention?

PN273

MR BIBBY: Well, on the basis that we could have then put submissions in terms of the steps that we had taken to seek to be bound to the agreement pursuant to 170M.

PN274

COMMISSIONER SMITH: I understand that. But why do we have to bring it to your attention that you have got an obligation under the rules to do something?

PN275

MR BIBBY: Because, in effect, under rule 6 there is also the discretion of the Commission to waive that provision.

PN276

COMMISSIONER SMITH: Yes, indeed.

PN277

MR BIBBY: And that is what we would have sought to do.

PN278

COMMISSIONER SMITH: I see.

PN279

SENIOR DEPUTY PRESIDENT WATSON: Wouldn't it work the other way, that you would be aware of the obligation under the rules and if you sought to seek waiver you would raise it?

PN280

MR BIBBY: Well, sir, once again, to be quite blunt, the stat dec was not put in.

PN281

COMMISSIONER SMITH: Yes.

PN282

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN283

MR BIBBY: It is quite clear that that was the case. What we are saying is - we would submit, and it is then tied to the next argument that we wish to raise, given the importance of a union being bound to an LK agreement, once that notification has been given by employees, we are saying that surely given the structure of the Act and then specifically we are talking about rule 6, we are saying that in effect we should have been afforded a right to at least say, well, no, that statutory declaration has not been filed, but we would submit, in the context of this proceedings, for the rule to be waived. We weren't given that opportunity.

PN284

Just to finalise, in terms of this ground, what we are saying is that given the structure of the Act and given there is that latitude to waive the requirements of section 49, we are saying that given that there was adequate evidence or we could have put evidence to show that we comply with section 170LM, that would have been, in our respectful submission, enough to satisfy the Commission that the union could in fact be bound to this agreement. If I, finally, turn to grounds 7 and 8. And this goes to the question at paragraphs 23 and 27 of the decision in law:

PN285

That he failed to have due regard to the provisions of section 98A and 110(2)(c).

PN286

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN287

MR BIBBY: In the written submissions I make reference to a case from the CCH commentary which commentates the phrase:

PN288

Equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

PN289

It is actually making comment on a decision of Walkly v Dairy Vale Co-Op in 1972 but the Justice or the Judge said:

PN290

Such a provision vested in an Industrial Tribunal is an express power to ensure that hard cases do not result in "bad law ...(reads)... Industrial Tribunals to uphold claims or cases that might fail in civil courts because of some minor legal point.

PN291

What we are saying is the context of this proceeding is, on the one hand you have got employees who want the union to represent their interest, you have got an employer who has no objection to that. And it is acknowledged that certain provisions of the Act were not complied with but, nevertheless, we would then - once again, if - - -

PN292

COMMISSIONER SMITH: Certain provisions of the Act or the rules?

PN293

MR BIBBY: Of the Act. 98R. Sorry, of the rules. I stand corrected.

PN294

COMMISSIONER SMITH: Yes.

PN295

MR BIBBY: What we are arguing is that in effect - and once again, it gets back to one of the issues that I raised concerning the public interest test. We are saying that the view should be that there are some very serious issues if a union is not party to this agreement.

PN296

COMMISSIONER SMITH: Have we got a discretion, in your submission, to bind you or not bind you, according to equity, good conscience and the substantial merits of the case?

PN297

MR BIBBY: Yes, you have discretion.

PN298

COMMISSIONER SMITH: We cannot bind you?

PN299

MR BIBBY: No.

PN300

SENIOR DEPUTY PRESIDENT WATSON: Well, that discretion is constrained by the particular requirements of the Act, is it not? I mean, section 110 has been somewhat subscribed by particular provisions of the Act which have been introduced over time which have limited the discretion of the Commission in some senses.

PN301

MR BIBBY: Yes, sir. I would agree with that. But, nevertheless, it is there. And we would argue that the approach taken, in our view, and I hear Commissioner Smith's comments about the discretion is a double edged sword, as it were, but we are saying from the standpoint of what is at stake here to those employees. And that is where we have to focus in an LK agreement, from that standpoint, and given that they now no longer have a right to have the union enforce that agreement to vary it, to extend it or terminate it, we are saying that some hard law has emerged by virtue of not granting the union a right of intervention in this matter. Well, sorry - to be party or bound to this agreement.

PN302

And lastly, if I just turn to ground 8 at paragraph 29, the learned Deputy President indicated that he had an obligation to follow the Full Court of the Federal Court's judgment in the Professional Officers Association (Victoria) v AIRC 2001, FCA 296, handed down on 28 March 2001. We would say that that decision needs to be distinguished from this matter on the basis that it related to a 170LJ agreement. It is quite, if one turns to paragraph 49 of that decision, that the Full Court dealt with the application pursuant to 170LJ.

PN303

COMMISSIONER SMITH: But the point is right, isn't it, if you weren't entitled to be granted leave?

PN304

MR BIBBY: Sorry, sir?

PN305

COMMISSIONER SMITH: The point is right, if you weren't entitled to be granted leave. That is all that is authority for.

PN306

MR BIBBY: Yes, yes, sir. But - - -

PN307

COMMISSIONER SMITH: If you are entitled to be granted leave, the point is wrong.

PN308

MR BIBBY: Yes, sir. Okay. I will just see if I understand that. If the union is not granted right of intervention, the union is not granted right of intervention, then in effect this authority could not be relied on. Is that what you are saying?

PN309

COMMISSIONER SMITH: No. The authority is right. If you are not granted right of intervention, you can't be bound by an agreement.

PN310

MR BIBBY: Yes, sir. Sorry. I have got it. But if you are granted right of intervention - - -

PN311

COMMISSIONER SMITH: Indeed.

PN312

MR BIBBY: Yes. Thank you, sir. That is my only point. Sir, if it pleases the Bench, that, in effect, is an overview of the submissions that are contained in the full written submissions. I am conscious that at this point I was going to submit, pursuant to section 45(6)(a), the documents that I have already put into the Commission. But I was doing this on the basis that the background to this particular application would be that we believe that it expedites the matter. And on that basis we would say that if the appeal was granted on the grounds of grounds 3 to 8, then if the Full Bench had access to the documents that were not permitted in the original proceedings, we are submitting that it would be then open, pursuant to subsection (7)(a) of section 45 for the Full Bench to vary the decision and permit the ASU to be bound to the agreement. That was simply a procedural matter that we wanted to raise at this point in the submissions.

PN313

COMMISSIONER SMITH: We just issue a separate order binding you to the agreement?

PN314

MR BIBBY: I haven't given thought to the final form. But, yes, I guess that would be the intention.

PN315

COMMISSIONER SMITH: Yes.

PN316

MR BIBBY: That it would be varied to that effect.

PN317

SENIOR DEPUTY PRESIDENT WATSON: So, in effect, you are saying we should grant leave, find the Deputy President erred in refusing intervention, find that intervention should have been granted, that you were not permitted to bring certain materials in light of that, admit further evidence, and determine the 170M point for ourselves?

PN318

MR BIBBY: Yes, sir.

PN319

SENIOR DEPUTY PRESIDENT WATSON: Yes, very well.

PN320

MR BIBBY: If it pleases the Bench, I have no further submissions.

PN321

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Colebatch?

PN322

MR COLEBATCH: Thank you, your Honour. The group I represent, I won't go through all the title again, is, I would emphasise, a group which does consider itself to be a union.

PN323

COMMISSIONER SMITH: The employees you represent in these proceedings. You don't represent anybody else other than those employees.

PN324

MR COLEBATCH: No, sir. But they are in the process of registration.

PN325

COMMISSIONER SMITH: I understand.

PN326

MR COLEBATCH: And they do consider that if they are not a union now, they certainly will be in the future.

PN327

COMMISSIONER SMITH: Yes.

PN328

MR COLEBATCH: It is, if the Bench will forgive me, making a slightly Jesuitical use of the word union that has been in existence for 90 years.

PN329

COMMISSIONER SMITH: Yes.

PN330

SENIOR DEPUTY PRESIDENT WATSON: But isn't Mr Bibby right in suggesting that if the ASU is a party bound and then de-amalgamation concludes, the point where de-amalgamation has legal effect, the de-amalgamated union would have the benefit of being bound? The ASU being bound by the award, by virtue of whatever section it was Mr Bibby cited?

PN331

COMMISSIONER SMITH: What section was that, Mr Bibby? What section?

PN332

MR BIBBY: 253ZS.

PN333

COMMISSIONER SMITH: 253ZS. Thank you.

PN334

MR COLEBATCH: Yes, sir. What I would simply like to establish at this point, sir, is that we have no problem with the decision of Deputy President McCarthy. We do not believe there is any error of law and we don't believe there is any reasonable argument why leave to appeal should be granted. However, if leave to appeal should be granted, we would seek to be joined and to take a part in these proceedings.

PN335

SENIOR DEPUTY PRESIDENT WATSON: What do you mean, seek to be joined? The Deputy President dealt in very different ways with the ASU and the organisation of which the individuals you represent are members in the proceedings in the hearing, did he not?

PN336

MR COLEBATCH: Yes. Yes, there was considerable argument on the matter.

PN337

SENIOR DEPUTY PRESIDENT WATSON: Well, what I am saying is you can't rely on Mr Bibby's arguments in respect to those you represent because they are different arguments.

PN338

MR COLEBATCH: No, sir. All we are seeking at this stage, sir, is that if leave to appeal is granted, we wish to be a part of that.

PN339

COMMISSIONER SMITH: Who is we?

PN340

MR COLEBATCH: The group of people that I represent who - - -

PN341

COMMISSIONER SMITH: They are, aren't they? They are bound by the agreement?

PN342

SENIOR DEPUTY PRESIDENT WATSON: They are parties to the agreement.

PN343

COMMISSIONER SMITH: The people you represent who you have been given leave to represent are bound by this agreement.

PN344

MR COLEBATCH: Yes.

PN345

SENIOR DEPUTY PRESIDENT WATSON: And in terms of the organisation as distinct from the individuals, your complaint, presumably, is with paragraph 10 of the decision. But no appeal has been made in relation to that. Mr Bibby hasn't raised it. And that is a simple proposition that the Act makes no provision for branches of unions to be made parties to certified agreements.

PN346

MR COLEBATCH: Yes, I know, sir. This is rather an unprecedented situation.

PN347

SENIOR DEPUTY PRESIDENT WATSON: Yes, it is. But that is correct, is it not? That a registered organisation is a registered organisation.

PN348

MR COLEBATCH: Yes, but - - -

PN349

SENIOR DEPUTY PRESIDENT WATSON: Now, you may be in a process of de-amalgamation but at the point of time the Deputy President was dealing with the matter, he had before him a registered organisation.

PN350

MR COLEBATCH: Well, sir, there is a very strong feeling about this and perhaps I could turn the point of equity, good conscience and the substantial merits of the case.

PN351

SENIOR DEPUTY PRESIDENT WATSON: Well, as I put to Mr Bibby that is constrained by what else appears in the Act.

PN352

MR COLEBATCH: Yes. Now, our members, sir, have a very strong, very sincere and heartfelt feeling about this. They do not wish to remain a part of the union and do not wish to be bound by the rules.

PN353

SENIOR DEPUTY PRESIDENT WATSON: But none of this has anything to do with whether those persons remain part of the ASU or bound by their rules. You have separate processes in place to deal with that concern.

PN354

MR COLEBATCH: Sir, I wasn't quite anticipating the way matters would develop this morning. Could I perhaps ask the Bench's indulgence for another brief adjournment, so I can take some instructions.

PN355

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN356

MR COLEBATCH: I am much obliged.

PN357

SENIOR DEPUTY PRESIDENT WATSON: Five, 10 minutes?

PN358

MR COLEBATCH: Ten minutes.

PN359

SENIOR DEPUTY PRESIDENT WATSON: Ten minutes? Very well. We will adjourn for 10 minutes.

SHORT ADJOURNMENT [11.24am]

RESUMED [11.48am]

PN360

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Colebatch?

PN361

MR COLEBATCH: May it please the Bench, I am happy to say I have been able to cut through quite a bit of red tape. Your Honours, the point my clients wish to emphasise is in regard to ground 6 of the appeal.

PN362

SENIOR DEPUTY PRESIDENT WATSON: Just bear with me a moment. Ground 6. Yes?

PN363

MR COLEBATCH: That is, that at paragraph 23 of the decision in fact or in law, in finding that an officer of the union did not have authority to notify the Commission of the union's intention to be bound by the agreement pursuant to section 170M(3)(6), my clients wish to emphasise for the record that they fully support the Deputy President's decision on this matter. Paragraph 23 of the Deputy President's decision is:

PN364

It allows branches of the unions to make agreements, see rule 47C. Division 7 of the union rules state that the officers of the ...(reads)... Bibby was authorised by the National Executive as required in rule 47.

PN365

Now, my clients are emphatic that that is a correct description of the factual situation at the time.

PN366

SENIOR DEPUTY PRESIDENT WATSON: Mr Bibby has relied on evidence, I think, at - evidence of whoever it was that gave evidence to the effect that - yes, here it is, paragraph 163 - that the National Executive President's had indicated to - who is this? Yes. Well, it was put by way of submission rather than evidence. No, it is not. Mr Burlinson, sorry. Mr Burlinson says that:

PN367

The National Executive President's indicated they would like somebody from our branch to represent the national organisation for the purpose of ensuring the national union was party to the agreement.

PN368

MR COLEBATCH: Yes, sir. Well, this is disputed by my clients, that there was simply no authority to do this. This is very strongly the position of Mr Bennett, the State Vice President. There is also the point that in the de-amalgamation process, the whole thing was in a fluid situation and subject to further developments. Yes, sir, there is also the question of rule 10A.

PN369

SENIOR DEPUTY PRESIDENT WATSON: Of the union rules?

PN370

MR COLEBATCH: Yes.

PN371

SENIOR DEPUTY PRESIDENT WATSON: Yes. Yes, I am sorry, what do you wish us to draw from this?

PN372

MR COLEBATCH: Yes, the qualification, unless subject of de-amalgamation.

PN373

SENIOR DEPUTY PRESIDENT WATSON: I am sorry, I am missing the point. You have taken us to rule 10A. What is the point being drawn from that?

PN374

MR COLEBATCH: Having cited rule 10A, I am drowning in papers literally and haven't got it in my hands myself, sir, but I believe it says that they have the right to act unless subject to de-amalgamation.

PN375

SENIOR DEPUTY PRESIDENT WATSON: Is it 10A of another section of the rules, is it? It is not 10A of the primary - - -

PN376

MR BIBBY: Sir, if I may assist. It is page 31 of the rules.

PN377

SENIOR DEPUTY PRESIDENT WATSON: I see. "Had there been no amalgamation". Yes. Very well. Thank you.

PN378

MR COLEBATCH: Sir, I don't think I can take the matter much further except to strongly emphasise that the group for which I act supports the Commissioner's decision.

PN379

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Thank you for that, Mr Colebatch. Mr Joyce, is there anything the City of Wanneroo wishes to put, having heard all that?

PN380

MR JOYCE: Your Honour, thank you. In light of the amended appeal, the City doesn't wish to put any further submissions.

PN381

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN382

MR JOYCE: Certainly, if the Bench has any questions of me, I am happy to answer those. But we don't seek to make any submissions.

PN383

SENIOR DEPUTY PRESIDENT WATSON: Thank you for that, Mr Joyce. Mr Bibby, anything in conclusion?

PN384

MR BIBBY: Just to make the comment to the Bench that if one reads rule 10A it does, in fact, have an exception provision in where it talks about except for members in the State of Western Australia. I don't think that takes the appeal any further but I will just simply make that comment for the record. And I have no further submissions.

PN385

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Bibby. Very well, we will reserve our decision in the appeal. Thank you.

ADJOURNED INDEFINITELY [11.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 AUTHORITY FOR MR BIBBY TO APPEAR FOR THE UNION PN16
EXHIBIT #C1 PETITION SIGNED BY EMPLOYEES PN51
EXHIBIT #ASU2 ASU'S WRITTEN SUBMISSIONS PN102
EXHIBIT #C2 MR COLEBATCH'S WRITTEN SUBMISSIONS ON BEHALF OF INDIVIDUALS PN102
EXHIBIT #W1 CITY OF WANNEROO'S WRITTEN SUBMISSIONS PN102
EXHIBIT #ASU3 COPY OF THE COMMISSION VERSION OF ASU'S NATIONAL RULES PN111
EXHIBIT #ASU4 DOCUMENT HEADED: TO WHOM IT MAY CONCERN; WITH TABLE ATTACHED OF SIGNATURES OF EMPLOYEES WHO SIGNED THE DOCUMENT PN159
EXHIBIT #ASU5 THREE SEPARATE STATUTORY DECLARATIONS FROM JEFFREY MICHAEL ISAACS, EDWARD COOK AND LESLIE WILLIAM ALLEN PN161