|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
VICE PRESIDENT McINTYRE
SENIOR DEPUTY PRESIDENT POLITES
COMMISSIONER WHELAN
C Nos 20623, 20644, 20688,
20690, 20711, 30940,
31006-31014 of 2000
APPEALS BY THE AUSTRALIAN WORKERS UNION
AND OTHERS AGAINST A DECISION DATED
28 JANUARY 2000 IN MELBOURNE BY
SENIOR DEPUTY PRESIDENT WILLIAMS IN
D NO 20004 OF 1997 RE ALTERATION OF
ELIGIBILITY RULES
SYDNEY
10.04 AM, THURSDAY, 20 JUNE 2002
Continued from 26.4.01
PN211
VICE PRESIDENT McINTYRE: Any changes to appearances?
PN212
MR CRAWSHAW: This matter has been re-listed following the order made by the Federal Court on 27 May.
PN213
VICE PRESIDENT McINTYRE: Mr Crawshaw, would it be appropriate for you to start?
PN214
MR CRAWSHAW: It may be, I'm not quite sure but the direction by the Commission was that the parties hand up outlines of submissions today. We all arrived 10 minutes ago and we've given each other our outline of submissions and the problem with that is that everyone else has only to read one which is fairly short at this stage, I've got three to read. Perhaps it might be appropriate if the parties hand up their outlines of submissions now and there be some time taken to read them in order to read where to go.
PN215
In relation to our submissions, our first point is that - and I can hand that up now - perhaps I could take you to our submissions and all I'm really saying is that when it comes to the other parties submissions I will need some time to digest them, I suppose. What we are saying, as you can see from our submissions and I don't think I need take you to the writs, the writs are set out at the beginning of the Full Federal Court decision.
PN216
From what I've read in the first couple of paragraphs of Mr McKenzie's submission at least, I don't think there is much issue about what we've said in paragraph one, that the writs were issued by the Full Federal Court as the result of the decision on 13 June 2001 and the associated orders being tainted by jurisdictional error. The effect of those writs is that the re-determination of the application by the Full Bench must be conducted again.
PN217
We are saying in relation to that and from what I've read in Mr McKenzie's decision he says the same thing, that the Federal Court decision doesn't call into question the decision of 28 February 2000, the first Full Bench decision, if I can call it that. Also, the finding by the Full Bench that thee was appellable error, particularly in relation to identification of employees. However, the decision was reached by the Federal Court that the re-determination of the application by this Full Bench on 13 June 2001 and the associated orders were tainted by jurisdictional error.
PN218
It is that re-determination that must take place again and once again, as I say, I've read the beginning of Mr McKenzie's submission where he says there was no question mark over the decision of the Full Bench to re-determine the matter for itself rather than send it back to Senior Deputy President Williams and we would take no issue with that. But what we say in relation to the re-determination of the matter is that we have substantial submissions to put in relation to that matter, in relation to the re-determination of the application.
PN219
That will include taking the Commission to the evidence and during the course of our submission, we'll be also, instructed as we are now by various decisions, going to put an alternative rule change in writing. Also, in relation to the re-determination we make application to call further evidence pursuant to the provisions of section 45 subsection (6)(a) of the Act. We say there are cogent reasons for doing so in this case, the last evidence was taken in these proceedings in March 1999 and that was over three years ago and we submit, it is now untenable to now decide this case again, to re-determine the matter again which is what the exercise is, without updating that evidence.
PN220
In particular, we want to update Mr Bodkin's evidence as to the overall performance and effectiveness of the CFMEU in the - I'm reluctant to use the word, construction industry - I'll say the area of construction. His evidence in relation to demarcation disputes or lack thereof any harmful demarcation disputes and the continuing non-applicability of the demarcation agreements that were the subject of evidence and decision in the decision of Senior Deputy President Williams.
PN221
Can I just say in relation to the calling of evidence in a case such as this, we make reference to the case of Re Coldham ex parte Brideson Number 2, can I just take you to that case. That, of course, was a case concerning an appeal under the old provisions of the Conciliation and Arbitration Act concerning registration of a union which was the subject of prerogative relief, as I think they called it then, to the High Court. Can I just take you to page 274 of that decision, I should give the reference for the record, it's [1990] HCA 36; (1999) 170 CLR 267.
PN222
At page 274 in the second full paragraph the High Court said this:
PN223
In appeals against decisions to register associations as organisations for the purpose of the Act one of the issues which the Commission often had to determine under section 88F was whether the association had complied with the prescribed conditions. ...(reads)... effective industrial representation.
PN224
That's of course a reference to the old provisions. The effective administration of the Act made it a matter of importance that an association should not be registered if its members might conveniently belong to a registered organisation unless in all the circumstances it was undesirable to refuse registration. It would seem most unlikely therefore that the legislature intended that the Commission should register or confirm the registration of an association in that the date of the appeal there was an organisation to which members of the association might then conveniently belong and the Commission did not think it was undesirable to refuse registration to the association.
PN225
In our opinion upon the correct instruction of 88F the Commission was bound to make its own decision on the evidence before it including evidence of events which had occurred since the Registrar's decision. As Higgins J said in Federated Carters, the Motor Transport and Chauffeurs Association:
PN226
The appellant is entitled to have a rehearing or a review of the decision, he is entitled to such a judgment as I can bring to bear upon the question independently of the Registrar although of course I should attach a good deal of weight to the Registrar's view.
PN227
We say similarly in a case such as this which is not a registration case but a change to the rules, the appropriate course is for the position in relation to the evidence, the position as it is of today's date rather than relying solely on evidence that is now three years out of date, has various reasons why it's three years out of date, but it's not a question of apportioning any blame to anyone or anybody in relation to that. It's a matter of fact that it is three years out of date and this Commission should be brought up to date in order to properly exercise its discretion in relation to the redetermination of the application.
PN228
Having regard to that can I hand to you some directions that were made by a Full Bench that your Honour, the Vice President, sat on in the case of Pacific Coal v Robert David Smith and others. That of course as your Honour will remember was an appeal concerning the reinstatement of a number of - I think it was 16, employees at the Blair Athol Mine. They were reinstated at first instance. The appeal was heard and in a somewhat analogist course to what occurred in this case, the Full Bench called the matter on to see what should happen once a finding in that case of leave to appeal was made. In that case there was an application by the appellant to update the situation in relation to the evidence and in particular can I refer to the directions 4, 5, 6, 7 and 8 and commend them to this case. The Full Bench made a direction that the appellant file and serve any witness statements and submissions by a certain date which was about three weeks from the date of the direction. A similar direction in relation to the respondents. Once again three weeks on. Then the matter was relisted for hearing in relation to that.
PN229
Can I just say I haven't read the outline of submissions of the other parties other than the beginning of Mr Kenzie's as I've referred to but we would have thought irrespective of the question of any further evidence that the appropriate course is for a timetable to be set for full written submissions in this matter as occurred in that matter rather than a situation arise where my client through me has to deal with these submissions on the run. That can be partially met of course by an adjournment to give me time to read them but the appropriate course, we would have thought, would be for each of the parties to have advance notice of the full submissions of the other parties.
PN230
In relation to paragraph 7 we note what was said at the end of the first Full Bench decision about the length of these proceedings and matters of that kind. That certainly turned out to be a prescient note at the end of the first Full Bench decision. As yet no member of the Commission has attempted to get the parties together. We would submit, that that is an appropriate thing to do in the meantime. They are our submissions on those matters at this point in time. I suppose they really fall in the nature of some sort of preliminary matters. It's a matter for my friends whether they want to deal with that now or go straight into their submissions. As I said I haven't had time to read their outlines.
PN231
MR DIXON: May it please the Commission, we have proceeded on the basis that the matter has been listed for hearing following the decision. We have taken note of the Commissions indications on the notice of listing of 28 May and we have proceeded on the basis that in a case such as this which has involved a great deal of time on the part of the Commission and the parties and significant cost and having a situation where the issues have been amply debated before, that with some assistance we hope from the parties, the Commission should be in a position to dispose of the matter.
PN232
In accordance with the Commissions direction we have prepared a submission which I can hand up, to which I'll come in a moment if I may. I don't know if the Commission would mark these at this point in time.
PN233
PN234
PN235
If the parties for whom we appear your Honours and Commissioner do not accept that this matter has been remitted for a hearing they know though at first instance. The principles that apply in respect of the basis upon which the commission must now determine the matter arising from the Coal & Allied decision in the High Court in my submission still applies therefore requiring simply a reconsideration of some aspects of the case as a result of the Full Bench of the Full Court's decision in June.
PN236
As for the question of redetermination, the first point raised by Mr Crawshaw, our submission is as I have already said that today was the CFMEUs opportunity and the other party's opportunity what they wished to say about that matter for commission to determine the matter. The suggestion that the CFMEU will at this late stage put an alternative rule change in writing but it seems at some future point in time not now should in our respectful submission be rejected, it has had every opportunity to do so.
PN237
It has had considerable time even since the listing of this matter to raise any alternative that it wishes the commission to consider and if it has not done so by today it is our respectful submission that it is again too late. It has done so in the face of comments by the Full Bench that it has not done so, along time ago, and comments in the Full Federal Court that it elected not to do so. In our respectful submission, the CFMEU is treating the commission with complete disregard to come along today and say we are going to do this at some point in time, none of the parties knowing what, when and how they are to deal with the matter.
PN238
It is then said that it wishes the opportunity to call additional evidence and it relies on the decision in Calder. The Full Bench obviously will immediately recognise that the principles in Calder that on appeal it was a date novo rehearing of the case fundamentally different from what the Full Bench in this case is doing pursuant to the decision of the High Court in Coal & Allied. The second point one must make that this is not a case in which there has not been substantial evidence and this is not a case in which the evidence can cure the fundamental issues which arise for determination.
PN239
The principal issue of course which it has arisen from the decision in the Full Federal Court is the extent to which the provisos to the rule effect the full impact of the rule and the extent to which more conveniently belong and more effectively represented tests are affected by the provisos. There is of course also the question of the conduct of the CFMEU. Nothing has been suggested in relation to this additional evidence that Mr Bodkin might give which can in any way eradicate or erase the serious misconduct on the part of the CFMEU which as we have put in our submissions fundamentally undermine its case and which in our respectful submission suggest strongly that their application on those discretionary grounds should be dismissed.
PN240
If one has regard for the public interest, it is my respectful submission that it overwhelmingly supports a conclusion of this matter without additional time on the part of the commission or extensive cost and delay to the parties. Here what is being proposed by the CFMEU this morning suggests on any reading of what Mr Crawshaw said some open ended future determination of this matter, it appears that the CFMEU wishes to put the case into some distant future for determination when it has had every opportunity in the past to deal with the matter.
PN241
Nothing has changed since the last hearing from the suggestion put by Mr Crawshaw that it was not necessary to lead evidence on the last occasion that it now is. So in our respectful submission the commission is in a position to deal with the determination of the matter and we respectfully invite the commission to proceed to do so. I am in a position to speak to the outline of submissions now given what happened the commission might want to give me some direction as to that but I am happy and content to take the commission through our submissions.
PN242
We are prepared to be as expeditious in that course as we can but if the commission would be assisted by us taking the commission to the various references which we have set out in paragraph 7 of the outline which support the contentions we may do so but the commission may of course find it more convenient to do so at another stage.
PN243
VICE PRESIDENT McINTYRE: Our preference would be to hear briefly from the others at this stage just so we get an overall picture of the other parties.
PN244
MR DIXON: If the commission pleases.
PN245
MR KENZIE: If it please the commission could I, although I will not go to them now, could I make available copies of our outline prepared in accordance with the directions of the commission.
PN246
PN247
MR KENZIE: Thank you your Honours. Now just without intruding into the submission and staying with what has been put by others so far by Mr Crawshaw and Mr Dixon, we perceive the proceedings today to be concerned with the matters identified by Mr Dixon, that is the matters that were identified by the Full Court as requiring intention. We do not perceive this proceeding to be a rehearing or anything approaching a rehearing.
PN248
Our submissions are, again without going to the detail of them, proceed on the basis as Mr Crawshaw has correctly said that we are not here to re-examine anything relevant to the first decision of the Full Bench but to deal with the active decision of the Full Bench in relation to the disposition of the matter which was the subject of many submissions to the Full Court. The only submission that the Full Court found attractive was the notion that the Full Bench's decision did not make it clear the fact that into that decision had been a consideration of the effect of the agreements that had been made.
PN249
Mr Dixon's submissions and our are without going to them are directed to that and in a bald sense Mr Dixon as I understand it proposes to put to the commission an explanation as to just what those provisos do when analysed. Our submission is balder and says that even if one departs from impact on the other unions and goes a step beyond Mr Dixon's submissions if you focus on the AWU alone, then that is sufficient to allow this position of this matter and they are matters which we have come to the commission today to briefly put, they can be briefly put and it is our firm submission that that is what should happen today and that everyone must be taken to have understood that what was to happen today was a hearing of the matter.
PN250
The commission's directions come in the wake of earlier attempts of the commission to deal with the matter. The CFMEU advanced contentions before the Full Court that earlier attempts by the commission to come finally to that matter did not require the commission, the CFMEU to advance it's full case and submissions based on natural justice were made to the Full Court and rejected and I am being perhaps cryptic but it is now not seriously open to the CFMEU to come along in the wake of that history and suggest today that it could have approached today's proceedings on any basis other than that the commission intended to list this matter and to hear the outstanding matters.
PN251
So our position is, put as firmly as we can, that that is what is to happen today. The exercise appropriate today is a manageable exercise and accommodatable in terms of the submissions of the parties and that matter should proceed.
PN252
The only other thing I would wish to say at this stage is this: Mr Crawshaw has generally submitted that what the CFMEU proposes is an updating of the evidence and some form of mechanism to accommodate that proposal and he's pointed to the recent directions given in the Pacific Coal case. The Commission doesn't need me to remind it that this was a case which involved I think something like 300 witness statements and which took an age to litigate.
PN253
It is not the sort of case, even if one knew what the nature of the further case proposed was to be, even if one had an inkling of what the new rules were to be it would be a totally different exercise from that which was contemplated by the full bench in the Pacific Coal case where what was contemplated was a further hearing, three days worth of further hearing at a full bench level and further evidence received and accommodated in that time. This is at the other end of the spectrum. This is an open ended exercise that's now proposed in relation to the most lengthy case that one can imagine under section 204 against a background in which there has been no new rules and by rules I mean no new parameters stipulated by the CFMEU so that one is left to guess what would be the extent of re-examination of matters which have been the subject of painstaking analysis.
PN254
I mean, if a rule emanated ultimately at some stage from the CFMEU at which state one could then start to ask a number of questions about the nature of the proceeding, those questions would include, what sort of fresh evidence would be required to accommodate the new parameters that are established by this new rule. Does our evidence come anywhere near dealing with this? Does the evidence of the 300 or many hundreds of people that were called deal with this point or is it necessary to re-examine it all and to call further evidence that would explain the difficulties created by this newly proposed structure.
PN255
That's if we got that far but we're not that far. We're at a stage where Mr Crawshaw says, look, we'll put something forward. Who knows what effect that would have on the witnesses that would be needed to be called. There'll plainly be a need for further evidence, we don't know what, and he hands up a copy of the Pacific Coal decision and as an example for the three day hearing. Now, that is totally unreal and a ludicrous proposition, with respect.
PN256
In our submission, unless there was a most cogent reason, unless someone could come along and put before the Commission some cogent basis which would suggest a practical way forward the Commission would not entertain, seriously entertain an approach to this matter other than the one that is implicit in the Commission's listing of the matter today and that is that the outstanding matter be heard. If it was a matter of calling some brief evidence to update an issue which could be identified, that might be accommodatable but if one knew what the parameters of this new case could be you could begin to come to grips with it but you can't.
PN257
So this is the last case in which anyone should be thinking about the full bench at an appellate level at this stage embarking upon an unknown exercise of that nature. This is the last sort of area in which one would be even considering that. So, even if the CFMEU had done what it hasn't done and that is put forward a partial rule change these submissions would still be cogent in our submission. You would still be left in a situation where you had to examine what it all meant in a practical sense. Of course we're nowhere that.
PN258
If the CFMEU ultimately does want to put a different proposal forward then if this matter is dealt with and dealt with in the way we've suggested it should be dealt with it will then be able to do so on a properly structured basis, namely, on the basis of a rule change which can then be the subject of evidence and properly considered on an up to date basis if the CFMEU wants some up to date evidence called in support of its material.
PN259
But now is the time to dispose of this matter on the materials that are available and those materials include the submissions of the parties today and should have included some submissions by the CFMEU not to the effect that they want some vague way forward but submissions as to why it would not be appropriate to deal with the matter in the way along the lines obviously contemplated by the full court in its decision.
PN260
What the full court contemplated was that this full bench would deal with some certain defined matters. They are definable, they are able to be identified and hopefully our submissions come to grips with that but Mr Crawshaw's submissions do not come to grips with that at all so far as we can see but they should have. So we submit that the matter should go forward as contemplated by the Commission.
PN261
VICE PRESIDENT McINTYRE: Mr Gallagher.
PN262
MR GALLAGHER: If the Commission pleases, if we could hand up an outline of our submission. If I could just indicate to the Commission how that submission is structured and the outline is actually an eight page document and had appendix A attached to it and the appendix A is actually the submission that my client made to the full bench much earlier in this matter. If the Commission goes to the last page of the bundle you will see that that submission was made on 30 June in the year 2000.
PN263
If the Commission pleases, we don't have much to say. We support the submissions made by Mr Dixon and Mr Kenzie. Could we indicate to the Commission that the task before it today is as fairly limited one and that limited task is mad clear at paragraph 13 of the outline and if I could refer the Commission to that paragraph, a two-line paragraph, that is, that the Commission is required to give consideration to the proposed rule; the proposed rule is that which includes the various provisos. Today that task is to follow nothing more and nothing less and that consideration would be on the basis of the materials now before the Commission. As had been pointed out the decision made in February 2001 by this bench has not been called into question.
PN264
The decision made in June 2001 has been called into question by the Full Federal Court, albeit, on an extremely limited basis and the basis is as per set out at paragraph 13. So in our respectful submission the Commission would proceed to hear that matter today. That is what was envisaged in the directions given by the Commission in our respectful submission for this hearing today and it should do no more and no less than that. If the Commission pleases.
PN265
VICE PRESIDENT McINTYRE: Thanks Mr Gallagher. Yes, Mr Crawshaw.
PN266
MR CRAWSHAW: Can I just address briefly these submissions on this first issue. Mr Dixon said something about today being the day on which we had the opportunity to make submissions, today being the day on which we have the opportunity to put up any written alternative. Can I make this clear, that what we've suggested by way of evidence and by way of a direction is in our submission an appropriate and orderly way to case manage the end of this case.
PN267
Now the Commission rejects our proposal and says commenced today. We will commence today but I don't want to hold out any hope that we will finish today or that the parties down the other end who throughout this case have made lengthy submissions both at first instance and on appeal, now say well this is a very brief case to finish off. As I said before, we propose to put substantial submissions including taking into the evidence. This is a case where this bench has never been taken in any detail to the evidence and excepting that you read it before making the last decision, that was over a year ago and we all have to refamiliarise ourselves with the evidence.
PN268
Now, there is a fundamental error in the submissions put by my learned friends Mr Dixon and Mr Kenzie. My learned friend Mr Dixon said that Brydson was fundamentally different than this case and I think he called it in that case a rehearing de novo which rather merged the idea of an appeal by way of rehearing and an appeal by way of appeal de novo. In actual fact if you look at the Brydson case that I handed up, at page 272 in the middle of the page the paragraph there it says:
PN269
The power conferred on the Commission ...(reads)... section 88F by way of rehearing.
PN270
That case was an appeal by way of rehearing. The High Court in Cole v Allied said that case was an appeal by way of rehearing, this is an appeal by way of rehearing. Mr Kenzie was quite wrong to suggest that this is not a rehearing, it is an appeal by way of rehearing, the whole appeal is including the finding of appealable error so it is an invitation to error to follow the submissions of my learned friends.
PN271
The Pacific Coal case that I handed up the directions on, Mr Kenzie might be forgiven not being involved in it to think it was just a simple reinstatement case but your Honour the Vice President will remember it was just as lengthy as this particular case and in any event that really should not bear on the question of updating the evidence. The reason for updating the evidence in that case that was put forward was that it was now a some I can't remember the time but I think in that case it was some three years since the evidence had been taken. Certainly at least two years and that is the reason in this case, it doesn't matter how lengthy the bulk of the evidence was on the last occasion, it is the time since that evidence was called that is important in relation to the question of calling further evidence.
PN272
As to putting up an alternative rule change it is suggested that is a totally new exercise. You will recall that before Senior Deputy President Williams as part of their submissions, both the Employers Federation and the AMMA put up an alternative partial rule change as part of their submissions and they were entitled to do it and in fact this full bench in its first decision drew attention to the fact that they weren't properly considered or considered at all by Senior Deputy President Williams. It is not a totally new exercise to put up an alternative rule change as part of your submissions and that is what we propose to do in this case, put it as part of our submissions whenever they are put. Whether they are put today or at some time in the future.
PN273
Mr Kenzie says brief evidence could be accommodated, that is all we are proposing. We are proposing to update Mr Bodkin's evidence. The suggestion that it wouldn't be brief evidence comes from my learned friend. He says, no we will have to call all this other evidence if the CFMEU puts up an alternative rule change as part of its submissions. Well, let me make it clear, we are going to put that alternative rule change as part of our submissions so if my learned friend wants to call extra evidence he should join in our application and in the timetable that I propose, they will have our submissions as well as the evidence well actually I suppose they won't because the timetable I propose is based on Blair Athol as the appellant putting in first. We are quite happy in the circumstances of this case to go first in that exercise if further evidence is to be called.
PN274
VICE PRESIDENT MCINTYRE: We propose to adjourn for a short time to consider what has been put this morning so far.
SHORT ADJOURNMENT [10.51am]
RESUMES [11.25am]
PN275
VICE PRESIDENT MCINTYRE: On the basis of what has been put this morning, we first note that as we read the decision of the Federal Court, two errors were identified. The first was that we erred in not paying regard to the settlements and the modifications they made to the alteration and the second was that we erred in the view that the failure of Senior Deputy President Williams to give reasons was independent basis for refusing consent excepting, as of course we do, that the failure to give reasons was not an independent basis for refusing consent. It is our view that therefore the issue before us is, what result we should have come to had we paid regard to the settlements and the modifications they made to the alteration.
PN276
This morning Mr Crawshaw foreshadowed that his submissions would include an alteration to the proposed rule. It is our view on what has so far been put that this goes beyond the scope of the issues raised by the Full Court decision and order. At this late stage in the present proceedings, we do not think it is appropriate to embark on a hearing of the type foreshadowed by the CFMEU this morning. We, of course, note that it is open to the CFMEU to lodge a fresh application under section 204 if it so wishes. We therefore invite submissions now on the basis of what I have just said.
PN277
MR CRAWSHAW: I have read the outline of submissions of the other parties, they certainly seem to go beyond what is now being suggested and it is not clear to me exactly what restrictions are being put. On our submissions, it's very hard, we've got submissions to make and if the Commission is not going to hear certain things, it's very hard for us to predict in advance what comes within the supposed scope and what doesn't. Perhaps I'll just proceed and if the Commission doesn't want to hear me on anything the Commission might say so.
PN278
VICE PRESIDENT McINTYRE: Perhaps subject to any comments would it not be appropriate for the appellants to make their submissions first and then you respond to them, Mr Crawshaw?
PN279
MR CRAWSHAW: Well I'm in the Commission's hands on that.
PN280
MR DIXON: We think that's appropriate. Mr Kenzie and my other learned friends have suggested that I go first. As I indicated earlier what I propose to do is to address my remarks to the outline of submissions in exhibit D1. The arguments, that the appellants for whom I appear raise, are fairly comprehensively summarised but the evidence, references are given and given the time issues I might take some guidance from the Commission when I come to the evidence as to whether I need to go to it or not.
PN281
The first proposition requires me to, and I'm sure this is probably not necessary, but it requires me just to remind the Commission about its essential reasoning in the analysis of the rule, namely that the criterion adopted by the CFMEU for eligibility under the new rule is the doing of particular work on any structure or projects as defined and when I make the submission about doing the particular work the Commission will recall that that is encompassed in any work, in or in connection with or incidental to the construction, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any, and then follow the description of structures.
PN282
So when I said any work it is within that - it's the kind of work in relation to the qualifications in connection with construction etcetera. We maintain the submission that the criterion enables the CFMEU to enrol as members persons employed in a wide range of industries other than the construction industry. The passages in the decisions of the Full Bench which deal with this matter are set out at the top of page 2 of exhibit D1. In those passages the Commission made the analysis which emphasised that it's to the work that this rule goes and if one concentrates on that proper criteria, then the conclusions must, in my respectful submission, remain that one will find such work being done by employees of a wide range of employers in a wide range of industries either in the construction industry or even beyond the construction industry.
PN283
The appellants submit that what is required is the assessment of the full extent of the reach of the rule in light of the agreements made which gave rise to the provisos which were inserted into the rule by Senior Deputy President Williams when he approved the rule but which, of course, was quashed as we understand the Commission's earlier decision. In my respectful submission, on a proper interpretation of the proposed rule, the provisos do not exclude the entitlement of the CFMEU to enrol as members persons who satisfy the tests which are set out in paragraph 1, for eligible for membership are the various unions set out in paragraph 5.
PN284
So the effect of what the appellants submitted in relation to paragraph 5 is that properly understood the agreements which became provisos, in other words were incorporated into the rule as made by Senior Deputy President Williams will still entitle the CFMEU to enrol as members persons who are eligible for membership of the AWU in a range of industries, the AMWU outside of Western Australia in a range of industries, rigours in Western Australia, but not elsewhere, the NUW, the members of the ALHMWU, other than those engaged in a fairly limited area, namely the provision of cleaning and/or security and/or gardening and/or property services other than where related to the provision of building trade services with respect to maintenance of any completed structure or project as referred to in B3, that B3 being the proposed rule taken from the document MFI2.
PN285
Then there is a limited entitlement to enrol in respect of the TWU in the area of gas related construction projects including gas transmission pipelines. The Commission will note that an eligibility rule may be interpreted liberally and there's a lot of authority to that effect, but that is not the case in respect of a proviso. A proviso is not to be interpreted liberally. It is to be interpreted in the usual way in an objective sense. The effect of that here, of course, is obvious. On the one hand, one has a rule drafted in the widest possible form, it is almost any work performed by persons employed by the appellants for whom we appear any work which relates to or is in connection with construction repair, that wide definition, is going to be caught.
PN286
But the proviso only cuts down that exclusion in a more limited objective and not liberally interpreted way. What I have done in paragraph 7 of the contentions is essentially to adopt the same formulation as the Full Bench did in its second decision and we do that very conscious of what the Federal Court said and conscious of the evidence. So it is the submission of the appellants for whom we appear that the conclusions that the Commission came to in paragraph 7A as I reformulated them, B and C, are substantiated by the evidence, the references which I have included in the outline in the paragraphs that follow.
PN287
What we have done is to take the industries, industry by industry, to give the Commission a reference to the evidence called principally by the appellants for whom we appear, but in some cases, other evidence as well. We have then indicated as well, in those paragraphs, which unions are affected by the intrusion by the CFMEU into those industries on a proper interpretation of the rule.
PN288
MR DIXON: In AMMA3 was the evidence of Mr Taylor. We did take the Commission to this on the last occasion and unless the Commission now invites me to do so it may not be necessary for me to go to the particular evidence. I can make some broad comments about these notes about the particular evidence.
PN289
One will find throughout the evidence to which I refer comments that there is now evident multi-skilling in operations of the kind that one considers here. Employees who are traditionally required to only work as "operators" or terms of that kind are more and more doing maintenance. And one bear in mind that the terminology in the test adopted by the CFMEU is any work. So that it has significant scope for catching the persons who are employed in those industries simply by the performance of any work. No quantification, no principal purpose test is applicable.
PN290
The other feature one finds in the evidence, as the Commission will recall, is that almost everyone of the interests for whom we appear have structures which would come within the definition in the rules. So that in the industries highlighted one will find employees who at some stage will be performing work and will therefore be caught.
PN291
In the attachments referred to for example in relation to hydrocarbons, in the attachment TT16 to the statement of Mr Taylor, we've set out tables which provided details of the applicable awards and agreements and the unions who were parties to those agreements and we have attempted to do that in respect of each case.
PN292
There is some evidence in AWU4 by Mr Abrahams about pipelines. That's in relation to Australian Gas Limited. And in cross-examination in the pages 2438 referred to Foti. He was cross-examined about the position in relation to Santos in South Australia's hydrocarbon operations. And from that it is also evidence in my submission that the rule would intrude into those areas and would affect other unions.
PN293
So that in respect of hydrocarbons the appellants submit that there will be work performed by employees employed by employers in hydrocarbons which intrudes into coverage of the unions. Namely, the AWU, the AMWU outside of Western Australia, the CEPU to a limited extent because of the question of riggers. And there is limited evidence before the Commission about CEPU riggers, there is some evidence about that in Western Australia in the evidence that is referred to in the passages above. And in the hydrocarbons area there is the ALHMWU not to a significant extent in hydrocarbons but there is some evidence of that.
PN294
In relation to metalliferous mining the same exercise has been done. The point in relation to metalliferous mining might be illustrated even more starkly by asking the Commission just to go back to an open-cut mine or a gold mine underground mine where employees are performing, inevitably, some form of maintenance or even construction work. For an underground mine the employees of the owner-operator, inevitably, will be cutting shafts, doing some construction work in an underground mine.
PN295
So that the potential scope for the rule, as we submitted earlier, to infiltrate into this area is enormous. The unions affected or the territory into which the CFMEUs rule intrudes of other unions are the AWU, the AMWU - again it is outside of Western Australia - CEPU Limited and the ALHMWU.
PN296
May I pause there and indicate to the Commission that the evidence at transcript 3100 to 3105 of an organiser, an ex-ALHMWU organiser who became a CFMEU organiser reveals some details of (a) the extent to which the ALHMWU has a presence in the Northern Territory and, (b) it of course also was illustrative of the fact that the CFMEU was taking upon itself to enrol persons outside of its constitutional rule in that area, but not all areas.
PN297
So, the Northern Territory evidence is quite illustrative of the very matter which in my respectful submission permits the Commission to form the requisite opinions under section 204(4)(a) and (b) to dismiss the application.
PN298
In relation to the oil industry the passages are the same. The AWU is again affected there but also the NUW and there is no agreement with the NUW which is capable of being translated into any proposed rule. And there is no undertaking proffered by the CFMEU that it will not enrol in a way sufficient to satisfy the requirements of section 204. So that in the oil industry there is a stark illustration of the basis for concluding that the CFMEUs rule will intrude into that area and that there are other unions who represent these employee who can do so more effectively and to which they can more conveniently belong.
PN299
The iron and steel industry, the evidence is set out. That is principally the AWU because of the exclusion of trades persons in the proposed rule. But, again, although Mr Kenzie no doubt will identify this, it is our submissions that if one looks at Port Kembla's operations - BHP for example - where there is evidence through Mr Roberts in the exhibits which I refer to there about the presence of the AWU. The membership of the AWU. And persons will perform work and the Full Bench in the earlier decisions actually quoted passages from the evidence. So that on this ground alone the Commission could form the view that there are employees caught by the proposed rule who could more conveniently belong, could be more effectively be represented in an industry such as that.
PN300
In relation to quarry industries we have done the same exercise. Asphalt Paving, that's my summary, is ain a slightly different category because up until that point what we have done is to take the industries as listed by the Commission. In those paragraphs 7 and 8 of the second decision the Commission does not specifically in those passages make reference to those two industries is an express way. They feature elsewhere.
PN301
But this again in my respectful submission is a good illustration of an area which is caught by the proposed rule. There would be employees in the manufacture of bitumen products for example - working in the structures - who do some maintenance work. Who are not constructing building, who have been represented for some time by the AWU. The AWU has been making agreement AMMA21 and AMMA22 talk about the ongoing role of the AWU in representing employees in that industry. In making agreements on an ongoing basis in a co-operative way and in the absence of demarcation disputes. The TWU would have been included in this category but it was not because of the exclusion which appears in MFI5.
PN302
As the Commission will recall from the very beginning of this case the employer appellant squarely raised the issue that in relation to the persons who would be eligible for membership because of the alteration of the CFMEUs rule, the organisations referred to above came within paragraphs (a) and (b) of 204(4) and the Commission could form the requisite opinion in order to dismiss the matter. There is a typographical error I think at the bottom of page 6. The last line should be "able on the evidence to form the requisite opinion".
PN303
In our respectful submission the basis for that opinion is at the very least the matters set out in paragraph 7 supported by the evidence and then we list also some additional matters for consideration. It was never challenged by the CFMEU that in those areas the other unions could more effectively represent and employees could convenient belong, never seriously challenged.
PN304
The evidence reveals effective representation. A factor which the Commissioner is entitled to take into account is the eligibility for membership of the other organisations not being dependent upon the unworkable criterion in the test referred to in paragraph 1. It is simply the doing of some work at some point in time in an industry which is not in the construction industry and in respect of which the CFMEU is not represented by its presence.
PN305
The interest of the employees in an environment free from demarcations disputes is a matter which the Commission is entitled to take into account and it would otherwise be inevitable. We also submit that the fragmented nature of coverage will result. As compared to some of the other unions that can represent a class of persons regardless of whether they are performing a particular function as part of their overall job at any particular point in time, that would not be the case here and it would be a recipe for disputation and we also say the CFMEU represents actual - will cut across multi-skilling, a further factor as to why the Commission would reject the application.
PN306
The difficulties of delineating the rule back to any other position as the Commission contemplates it in its second decision still remain and we also submit that no amount of alteration to the scope of the rule can save the application for the reasons that we've set out in paragraphs 13 and 14, those being matters which of course were previously raised.
PN307
They go to the discretionary nature of the Commission's decision. As we understood the Full Bench's decision concluded that it must dismiss the application having been satisfied about the matters in section 2044, but it went further and said it would dismiss the application on discretionary grounds because of the disputation aspect and the Full Court of the Federal Court appears to have taken the view that in the latter case the absence of full referral to the provisos may have affected that discretion.
PN308
In my respectfully submission if one analyses the limited nature of the provisos and if one analyses the evidence it is uncontroversial. The CFMEU could not challenge a conclusion that the limitations in the provisos do not detract from the real risk of serious demarcation disputes in another of the industries referred to above.
PN309
It is a submission we make in paragraph 14B and it really does not matter whether one concentrates at this point in time on a union other than the AWU because the evidence suggests and in paragraph 14B we refer to our submissions in the earlier appeal book pages where the Commission will note that a dispute with the metal trades, for example, at Port Standback in New South Wales in a construction area spilled over - South Australia, I beg your pardon, spills over into the construction area - spills over into the operations of Mobil.
PN310
One's got evidence of BHP, Western Australia, BHP iron ore where the CFMEU sought to enrol persons in the mining operations and that spills over into the industry, the metalliferous mining industry and there is no reason to believe that in the industries that have been identified above whether the dispute is with the AWU, the AMWU or any of the other unions that the employees in those industries are not going to be adversely affected by such consequence.
PN311
Lastly we submit as we did before, that if the Commission is not persuaded by these submissions it is open to and we invite the Commission to conclude as we did on the last occasion that the overall conduct on the part of the CFMEU is such that the Commission ought on discretionary grounds to refuse the application.
PN312
We add a reference to our submissions, namely the CFMEU decision concerning Comalco Weipa. It's now a reported decision at 107 Industrial Reports 417. I have a copy not of the reported decision but of Vice President McIntyre's decision in the print form.
PN313
SENIOR DEPUTY PRESIDENT POLITES: Are you inviting us to go beyond issues that were made in the - are you relying on unrelated - - -
PN314
MR DIXON: Senior Deputy President, it was put on this basis, that if the Full Bench is persuaded that the provisos exclude so much of the rule that one, the opinion formed under section 2044 is not available or that the only discretionary grants about disputation are not available then there remains of course grounds which were put forward in the appeal which the Full Bench did not consider and if the Full Bench were to conclude that none of those two principal grounds are sustainable by the appellants, then it would be compelled in our respectful submission to deal with the appeal by reference to other grounds which were always before the Full Bench and which haven't been dealt with.
PN315
As we understood the Full Bench's reasons to date was that because there were those grounds available it was not necessary to deal with the other grounds and if the Full Bench were to conclude that those principal grounds are no longer available to the appellants it would be duty bound, in my respectful submission to deal with it and it's on that basis that I put the submission and it's on that basis on which I would ask the Commission to have reference to in decision in Construction Forestry Mining and Energy Union on 13 June 2001, print PR2904973 particularly the paragraphs mentioned, 47 and 54 to 59, those paragraphs are illustrative of the concern which the Commission showed for the CFMEU enrolling but a small number of persons with Comalco's operations but in the present case, of course, we know that the scale of the conducts on the part of the CFMEU admitted by the most senior persons within the organisation, including Mr Sutton, was on a large scale. What he said by Vice President McIntyre in that decision has, in my respectful submission, has much greater force in an area such as this where the union has engaged in such conduct on a large scale.
PN316
I should mention that in that decision his Honour made mention to the Federal Court proceedings involving the CFMEU where it was found to have committed a contempt of the Federal Court, the appeal of that decision subsequently went to a Full Court of the Federal Court. The decision at first instance was set aside, both on penalty and as to the extent of the contempt, the matter subsequently went back before Kiefel J and she handed down a further decision on 4 June 2002 which we'll make available for the sake of completeness.
PN317
MR CRAWSHAW: This is put forward by way of evidence, is it? I object to it.
PN318
MR DIXON: We are in the hands of the CFMEU and the Commission, if the CFMEU wishes the record not to reflect what happened to a decision and that the previous contempt stand as evidence, then we are content with that.
PN319
MR CRAWSHAW: There isn't any evidence of any contempt before this Full Bench, the evidence is three year's old. If my friend wants to tender further evidence he should make an application in the same manner as we did.
PN320
MR DIXON: I withdraw the tender of all the reference of that document, if the Full Bench pleases. May I mention one other matter in relation to the impact of the rule and eligibility into the metalliferous mining operations. The Commission will recall from earlier submissions that there is an exclusion in the CFMEUs rule in relation to metalliferous mining in Tasmania and South Australia, it appears in subrule (I) and it says:
PN321
Without limiting the generality of subrules (a), (b), (c), (d) and (f) and without being limited thereby nothing in subrule (e)...
PN322
Which is the old FEDFA rule that was inserted:
PN323
...shall make eligible for membership of the union any person employed by ...(reads)... or South Australia.
PN324
Then they've listed a range of employers starting with Abberfoil Resources, Mt Lyall, Pasminko and so on. The effect of the present rule, s propounded by the CFMEU, in my respectful submission, would potentially circumvent that particular exclusion. Employees who are caught by this subrule (f), the old FEDFA rule, who happen to perform some work in connection with construction or maintenance of any of the plants in those areas, would be potentially caught and as a result, it is illustrative of a further intrusion into the metalliferous mining area where it is accepted, even in the CFMEUs rules that it doesn't have coverage in respect of that class of persons.
PN325
There are comments by Moore J in AWU v FEDFA (1992) 44 IR 453 at 462 which support the proposition that intrusion into other industries, such as metalliferous mining should not be other than squarely raised and, in my respectful submission, the present approach permits intrusion into those industries where there are the well settled patterns of representation and award regulation and representation which support the conclusions that the Commission can and, with respect, should dismiss the applications here for reasons which reflect the same reasons as earlier arrived at. If the Commission pleases, those are our submissions.
PN326
VICE PRESIDENT McINTYRE: Thank you, Mr Dixon.
PN327
Yes, Mr McKenzie?
PN328
MR McKENZIE: Thank you, your Honour. We for our part, submit that the Full Bench in the proceedings today has correctly understood and articulated the issues that now are to be addressed. Mr Dixon has advanced submissions which address those issues by reference to the areas of intrusion understood by reference to the exclusions that exist within the agreements that have been placed before the Commission and are part and parcel made by the application pressed by the CFMEU.
PN329
Our submission, exhibit AWU8 makes a narrower submission, however, we adopt what Mr Dixon has put in relation to the matter, that is, we agree with the submission that if one factors into the equation and clearly articulates a factoring into the equation of the agreements with the qualifications, then one has the position as outlined by Mr Dixon and one then has a platform on which o ne can say, well, that is the rule as pressed and here are the findings that the Commission can make in relation to 2044.
PN330
Secondly, demarcation and discretion. The basis on which the matter has come back is discernible from what the Full Court had to say in its decision, particularly in paragraphs 87 and 88 and if I could take a moment of the Commission's time to go to those paragraphs. These were paragraphs obviously relevant to a determination by the court that there was something that could ultimately be found and related to a jurisdictional error.
PN331
In paragraph 87 and I come really to the top of what is page 46 of my copy, I hope it is the same as the Commission's, to about a third of the way down the paragraph where the Full Bench indicated it refused consent because of the potential for industrial disputation in the form of demarcation disputes in industries, other than the construction industry. The examples of demarcation disputes the Full Bench had earlier given in the first decision and referred to in paragraph 13 of the second decision mostly concerned the AWU though reference was made in the examples to other unions, including the ALHMU and the MEAA.
PN332
Could I just pause there to say that this, in the sense of identifying the relevance of other unions, this is putting the position in real terms at its highest in favour of the CFMEUs interests, because when one comes and has a look at the evidence of the demarcation disputes you can see that they all, or virtually all involve the AWU, and there was some reference to the Miscellaneous Workers' Union, the ALHMWU and the MEAA.
PN333
But what the Full Bench was focussing on, on any view, as a matter of reality, and where the focus of the proceedings were, was in relation to all of the evidence that had come forward in relation to the AWU. But what the Full Court was doing, and understandably so, was saying, "Look, there are some references to the ALHMWU and the MEAA, but not the other unions, not the Metal Workers or the CEPU." And then it said, "The Full Bench does not say in paragraphs 13 and 14 that it was limiting its consideration of potential demarcation disputes involving only the AWU," or putting it another way: was not considering potential demarcation disputes involving the other unions so now the list has expanded.
PN334
But what the Full Bench had in mind is not clear, because it didn't identify the evidence it relied on, other than by referring back to what is described only as examples given in its first decision. And then in 88:
PN335
It is not possible to say that in exercising the discretionary power to refuse consent ...(reads)... involving at least -
PN336
the other range of unions -
PN337
in relation to employees who because of the settlements would not be rendered ...(reads)... on their ultimate conclusion.
PN338
Now, for jurisdictional purposes it was accordingly appropriate to say, "Well, the basis of the writ is established because it was not, if one likes, possible as a matter of reasoning to say that these things were not taken into account."
PN339
But this was against a background in which the Full Court was discussing examples that were set out in detail by the Full Bench and which, subject to correction, all involve the AWU, and the centrepiece of which was the AWU, and I'll refer to those in a moment. So that although there was the basis of a constitutional writ for the reasons given in paragraph 88, because you couldn't discern from the reasons that there wasn't this other possibility, quite so, but when one comes to the reality of an examination of what the Full Bench was putting forward, and considers that against the background of the way in which the case was run, there is no doubt in our respectful submission that the essence of what was being discussed in relation to demarcation. Certainly the essence of it was material in relation to the AWU. True it is that there was the scope for what the Full Court said.
PN340
Now, that scope underlies Mr Dixon's submissions which take into account what happens when you do factor into those other matters. But the essence of what the Full Court was talking about, the essence of the evidence about demarcation, was all of the detail that came forward in relation to the AWU, and it's there that our submissions pick up, and they really are an alternative and a more limited approach to the matter than Mr Dixon's approach.
PN341
We say that in any event, as we do in paragraph 6, the material before the Full Bench, regardless of any consideration flowing from the agreements, would have justified the conclusions that the Full Bench reached; the Full Bench determined that there was an organisation, or there were organisations within section 204(4). And it is our submission that on the analysis contained in paragraph 10 of the second decision there was clearly enough to justify a section 204(4) finding with respect to the AWU, and that would be so regardless of the consideration of the other unions in respect of the CFMEU. And those findings, on our submission, consistent with what we put to the Full Bench before, would have been sufficient in themselves to require the Full Bench to dismiss the CFMEUs application, leaving aside, as we do now, considerations of what would apply if you were dealing with another rule, or a partial rule.
PN342
We relied on the extent of activity of the AWU. Our principal witness was Mr Wood. Our submissions put to the Commission on appeal earlier, which were detailed and which we don't now repeat, were based on the position of the AWU and its involvement in a range of industries. Our position as to demarcation, which was extensively put, was put by reference to the AWUs position vis a vis the CFMEU, which was the focus of all of the demarcation evidence, even if it wasn't the entirety of it. So we submit, firstly in paragraph 6, that there would be more than enough, even if you considered the AWU alone, to justify the requisite findings.
PN343
In paragraph 7 we identify in relation to the discretionary aspect, the Full Bench's decision referring to the evidence of the potential for demarcation disputes and the detail of those. Now, I wasn't proposing, and won't unless the Commission feels it would be truly assisted in going back to the detail of those examples, but I would make the submission to the Commission without reopening those paragraphs of the Full Bench decision, that on any fair analysis of the position the Full Bench in those examples was discerning the potential for dispute between the AWU and the CFMEU. Small wonder, because that was where all of the body of the evidence was coming from. So in our submission even if one did not accept Mr Dixon's submissions, both in relation to 204(4) and in relation to the discretionary aspects, the Full Bench would be perfectly entitled, and indeed the evidence would compel, in our respectful submission, an identical outcome.
PN344
Now, we go on to make a submission in paragraph 8 which is in very much the same nature that Senior Deputy President Polites discussed with Mr Dixon in relation to his submission. And we make the same submission and answer. Our primary submission is that one doesn't get to these considerations because, consistent with the decision of the Full Bench in its earlier decision, if the agreements made no difference, or would have made no difference when fully analysed to the Full Bench's decision, well one gets the same result. And if the Full Bench is not disposed to go on to deal with these matters, the Full Bench is not disposed to go on to deal with them, and that's where the matter would lie.
PN345
But like Mr Dixon we have directed attention to the matters in paragraph 8 because they are otherwise unaddressed, and if the Commission is against us in relation to these matters, but only if the Commission is against us in relation to these matters, then there exists the unaddressed issue which the Commission would be bound to address. We do not say, and nor could we say in paragraph 8 that the Commission is in any way bound to go on and deal with this matter regardless of what it does in relation to the issues which are presently presented before it by the Full Court decision.
PN346
But we do say that those issues are in the proceedings. They are there; they don't need further evidence; they don't need further submission; they have been the subject of complete analysis before the Full Bench; and if the Commission, as a result of the treatment of the issue made relevant by the Full Court's decision, ended up in a position against the appellants, then it would go on and deal with other matters raised by the appellants. Because it has an obligation to deal with the matters raised in the appeal. Again, they are matters that everyone has been fully heard on. If it pleases the Commission, unless there are any other matters we rest with that submission.
PN347
VICE PRESIDENT McINTYRE: Thank you, Mr Kenzie. Mr Gallagher?
PN348
MR GALLAGHER: If the Commission pleases. In general we support the submissions made by Mr Dixon and Mr Kenzie. Could I take the Commission to EF2, the submission handed up on behalf of my client earlier today. Paragraphs 4 to 12 of that submission essentially refer back to the Full Federal Court decision and the Commission will note that we quote paragraph 88 from the Full Federal Court decision in full at our paragraph 12. We then arrive at paragraph 13 at the task which we submit is before the Commission today, and the Commission earlier has accepted that position as we understand it.
PN349
Now, we do refer at paragraph 14 to the fact that the full rule, that is to say including all of the relevant provisos, is conveniently set out at paragraph 119 of the decision of Senior Deputy President Williams. We refer in paragraph 15 to the fact that the decision of the Full Bench of 28 February 2001 is not called into question in any shape or form in the Full Federal Court proceedings and therefore there is no need to go to that or debate it in any way.
PN350
Paragraph 16 we refer the fact that we were obviously an appellant in this matter. We made submissions. They are attached to this document as appendix A. It's a fairly detailed document and we don't seek to go to that in any detail. We did address the provisos in the submission that we made at annexure A. We referred to the particular rule of concern at paragraph 10 of annexure A, and we then went on to say in paragraph 11 there then follows in paragraph 119 a number of provisos which are not relevant for consideration in so far as this appeal is concerned.
PN351
Now during the appeal, as we record it, it was not suggested by the CFMEU at any stage that those provisos had any relevance in so far as the Employers Federation position was concerned. Frankly, we understand that still to be the position. However, what we have done in light of the Full Federal Court decision is to have another look at that and say to ourselves, well, in terms of the position that we put originally now that those provisos have been focused upon by the Full Federal Court do they make any difference to our position. And we go on in the following paragraphs to arrive at the conclusion that essentially they do not. They do not make any difference to our position in our respectful submission.
PN352
Going over to paragraph 22 of our submission, we identify particular categories of employees about which Mr Sutton was cross-examined by Mr Warren in the original proceedings before Senior Deputy President Williams. We cover the submission in relation to them in appendix A. Mr Sutton indicated that those employees were not sought to be covered in any sense by the application that was made.
PN353
Can we then go over to our paragraph 27 because a very substantial amount of evidence was referred to at paragraph 7 of the 13 June 2001 decision of this Full Bench and we refer to the industries there that affected us; the landscaping industry, the quarrying industry, the concrete manufacturing industry, the concrete products manufacturing industry, and also racecourses, showgrounds and entertainment complexes. Again the question arises when you take into account the provisos is there any effect that one discerns in relation to the problems that were identified in this application for those industries. The answer, in our respectful submission, is that there is no difference. We arrive at that conclusion at paragraph 29 of our submission.
PN354
Now, we have referred in the closing paragraphs to paragraph 6 of the 13 June 2001 decision where the Commission arrived at certain conclusions, set out certain questions, and then followed those up by reference to paragraphs 10 to 14 in the 13 June 2001 decision. Again we ask ourselves the question here: When the Full Bench focuses on the provisos, which the Full Federal Court has said need to be focused upon, do any different conclusions arrive for the Full Bench when those matters are specifically looked at?
PN355
We say, no. In fact our respectful submission is, as we say in paragraph 32, that it would be difficult to contemplate having considered those provisos the Full Bench arriving at any different conclusion. In our respectful submission no difference emerges when those provisos are focused upon and we invite the Commission to in fact consider those provisos and arrive at the same conclusions as were earlier arrived at. If the Commission pleases.
PN356
VICE PRESIDENT McINTYRE: Thank you, Mr Gallagher. Mr Crawshaw?
PN357
MR CRAWSHAW: If the Commission pleases. Can I just come back to this question of what we are entitled to make submissions on. Forgive me if I have been seen to cavil with the ruling that was made, but can I just make clear what our position is, and that is this: That as a result of the Full Federal Court decision we are back to the position - we are at least back to the position subsequent to the first Full Bench decision, and we are in the situation where all parties, including ourselves, are entitled to make submissions in relation to the redetermination of this application by the Full Bench and that's any aspect of that re-determination, that is our position. Now I understand the full bench to have in its earlier ruling today taken a different position to that but I just want to make it clear what our position is and to say that is consistent with what has happened with other cases that have been the subject of constitutional writs and come back to full benches of this Commission.
PN358
I will just give one example. You will recall in the Coal v Allied decision, the Coal v Allied litigation that the before the High Court overruled on appeal the issue of constitutional writs arising from the full benches decision and those constitutional writs were issued by the full Federal Court but before the High Court on appeal said that was wrong the matter actually went back for a further hearing to the same full bench of this Commission. That rehearing is set out in 1994 Industrial Reports, page 37 and I have a copy of that decision.
PN359
I don't need to take you through the decision but that of course as a result of the High Court's decision this decision became otiose because there was no need for a second full bench hearing. But in that case the full bench heard - all the parties again heard full submissions on the whole matter again. Now we are not saying in this case there is a necessity to hear full submissions on the whole case for the purposes of this hearing we are accepting the correctness of the first full bench decision but we do say we are entitled to put submissions on all matters and could I say again we are unclear as to what matters we are not permitted to put submissions on and we would seek the Commissions guidance on that matter.
PN360
Can I hand to you a document setting out the submissions we wanted to make on this matter. You will see annexed to it is an alternative rule change proposal.
PN361
PN362
MR CRAWSHAW: And as I said before I would seek the Commission's ruling on which aspects of this matter, this submission we are not permitted to put in light of your earlier ruling. Can I just say this, presumably given the brevity of the submissions that the appellant objectors have put today they are relying on their original submission either before Senior Deputy President Williams or on appeal. There has been no suggestion that they are not relying on any of those submissions. Are we somehow restricted I ask this bench in making this ruling on what we can put in answering any of those submissions. Including submissions that have been put today by way of our client at least about a partial rule change.
PN363
Now I can put the submissions that we seek to put and the Commission can stop me at an appropriate point, I'm quite relaxed about the procedure but I am genuinely not clear as to which matters are out of bounds.
PN364
MR McINTYRE: I think you just proceed with making the submissions you wish to make including in reply to the submissions of the appellants.
PN365
MR CRAWSHAW: Well I don't intend to - let me make it quite clear, confine myself to replying to what the appellants have said today. I intend to put the submissions that we want to put to this commission in redetermining the application in this matter.
PN366
MR McINTYRE: You go ahead.
PN367
MR CRAWSHAW: The primary submission of the CFMEU is it should be granted a rule change in the form granted by Senior Deputy President Williams. Alternatively we submit that a rule change in the form of annexure A should be approved and you can see from annexure A what the principle differences between what was originally approved by Senior Deputy President Williams and what the alternative is.
PN368
In the principle - this is at page 9 of the outline, in the principle paragraph the words they set out there that have deleted:
PN369
On any work or in connection with or incidental to...
PN370
And the words:
PN371
...repair, renovation, maintenance, ornamentation, alteration, rebuild or demolition.
PN372
And the word any before works - any other works, has also been deleted. So the purpose of this alternative rule change is clearly to confine it to construction without any reference to the construction industry. The other proviso in this alternative rule change is found at pages 15 to 17, they are probably for abundant caution given the deletion of the other words in the principle paragraph and they exclude maintenance or production employees in various industries which were mentioned in the AMMA alternative rule change which I presume is still before you and also on page 16 four other industries are also excluded from the ambit of the rule change. Those being concrete batching, landscaping other than on commercial construction sites, the quarry industry and the manufacture of concrete or concrete products.
PN373
They are the matters that were raised by the Employers Federation of New South Wales but those exclusions are obviously not confined to New South Wales. Can I just say on this question of a partial rule change the CFMEU has never pursued this application on an all or nothing basis. The Commission doesn't accept that the relevant statutory tests have been met in all areas covered by the application it is open under section 204, sub-section 2 of the Act to grant the application in part. The full Federal Court decision deals with this question - I take it you have the full Federal Court decision? Paragraph 65, page 35 of my copy of the decision says:
PN374
The power of a designated presidential member under section 204(2) is to consent to an alteration in whole or in part. ...(reads)... it is legally effective.
PN375
If I could then move on to the very important question of identification of employees covered by the rule change. That issue of course was crucial to this Full Bench find the appealable error in the decision of Senior Deputy President Williams and of course it was also crucial in the Full Federal Court determining that there had been jurisdictional error by this Full Bench. I don't think I need to take you to the passages in your decision or the Full Federal Court decision that go to that particular matter. I think we can accept that the identification of employees is crucial.
PN376
So in applying the tests in section 204(4) and otherwise deciding the matter, this Full Bench in making the redetermination must firstly identify the persons covered by the rule change and then apply the test by reference to the evidence relating to the employees so identified. The first question that arises in that context is what is the present coverage of the CFMEU. I want to make some submissions about that. It's a very important matter. Because the CFMEU already has eligibility for many of the areas on their face covered by the rule change. It's clear from the present CFMEU - - -
PN377
MR DIXON: Sorry, to interrupt my friend.
PN378
MR CRAWSHAW: I am speaking in relation to both. Both the rule change that was approved by Senior Deputy President Williams and the alternative but I'll deal later with the question of identification in relation to both. So can I just come to this question of the present coverage and this matter has been discussed before and particularly in your first Full Bench decision at paragraph 57. This Full Bench set out a summary of the CFMEUs existing eligibility in the Civil, Mechanical Engineering sector. That's at pages 36 through to 39 of the decision. I want to go to some particular aspect of that rule just to make a point about the existing coverage of my client. In particular can I firstly go to sub paragraph E which is at about point 7 on page 37 of the decision.
PN379
It includes engine drivers, firemen, crane drivers and also the following class of workers engaged in or in connection with or incidental to the erection, repair, renovation, maintenance, etcetera, of any building.
PN380
The over the page:
PN381
Building for the purpose of this rule is as defined in sub rule B.
PN382
Various other classifications are set out. I want to go particularly to (a):
PN383
Engine Drivers, Firemen and Crane Drivers. That's a summary of the rule. The actual rule talks about an unlimited number of all classes of engine drivers, crane drivers, mobile crane drivers, forklift drivers or attendance greasers, cleaners, trimmers or any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power.
PN384
This particular rule, part of the rule, has been the subject of a decision by the High Court in re Cauldron. Can I hand to the Full Bench a copy of that decision. It's a fairly short decision. It's reported in 1984 56 ALR at 149. The issue in that case was the FEDFAs eligibility rule which has been translated into sub rule E of the CFMEUs rule. Can I take you to page 150 where the High Court said this:
PN385
The issue in this Court is whether the Commission was correct ...(reads)... so far as material the clause provides ...
PN386
And then the full rule that I just read out to you as set out and then it said:
PN387
The AWUs submission is that the description which follows the words "any other workers" applies also to the specific categories of workers -
PN388
Sorry for the quality of this photocopy, it's just cut off at the end -
PN389
which precede these words. The submission pays insufficient attention ...(reads)... without doing violence to the structure and the language of the clause.
PN390
Now, that clearly set out a liberal interpretation of the FEDFA rule which I note has also been the subject of subsequent - that rule has been the subject of subsequent decisions of this Tribunal and indeed other industrial tribunals. I note the time, is that - - -
PN391
VICE PRESIDENT McINTYRE: We might go to 1 o'clock and then adjourn to 2.15.
PN392
MR CRAWSHAW: Can I take you to the decision of the Full Bench of this Commission in the case of Abbott ..... reported in [1992] CthArbRp 432; (1992) 5 CAR 278. That was a case concerning coal loaders and much of the case deals with a section 111(1)(G) application but in the course of dealing with that, an argument was raised again about the FEDFA eligibility rule and that argument is dealt with at page 9 of the decision by the Full Bench. At page 9 the rule is set out again. There's reference then to the decision in re Cauldron that I've just taken you to.
PN393
So if I could go over the page, to page 287. After the Commission had dealt with the decision in re Cauldron at about point 3 the Full Bench dealt with the question of the eligibility as it applied to coal loaders, it said:
PN394
The FEDFA has submitted primarily that the rule applied through the first category of the rule ...(reads)... industrial meaning or usage.
PN395
And I don't need to remind this bench of those authorities. Then the Commission went on to say:
PN396
Given this approach and the history of state coverage by the FEDFA ...(reads)... connected with the production or utilisation of power.
PN397
That decision obviously predated the High Court decision that decided that point. So in relation to the coal load as this commission went on to say:
PN398
Similarly we have formed the opinion that the eligibility of rule of the ...(reads)... jurisdiction based on that rule.
PN399
So given the breadth of interpretation of the rule that is set out in the various decisions, that are well summarised in the case I have just taken you to, we would submit that this subrule covers not only the crane drivers and plant operators but also riggers whenever they are employed to the extent that they are assisting in and about the work incidental to any crane. Also labourers assisting in and about the work incidental to any plant operator.
PN400
So in the same manner as those assisting in the work of the coal loader were covered by the FEDFA rule so are those people. Also the plant operator or the crane operator who is part of their multi-skilling does a bit of labouring, they are also covered by the FEDFA rule. Now there is evidence in this case of riggers and dogmen working with cranes and matters of that kind. They are clearly covered by the CFMEU rule already. That has to be taken into consideration as well as the rest of the present coverage in identifying the people who are actually covered by the rule change in terms of making a difference.
PN401
If I then move to subrule A, that is dealt with in paragraph 57 also of course. The classifications of carpenters or joiners, bricklayers, plasterers and the painting and decorating industry are set out therein. I do not think I need take you in any great detail to that but there is one case that is of some significance in relation to maintenance in the steel industry and matters of that kind and that is the case of BWIU v Andrecco which is a case concerning refractory bricklayers.
PN402
There are two decisions, there is the decision of Mr Justice Alley and then there is a Full Bench decision if I can hand those to you.
PN403
VICE PRESIDENT McINTYRE: We will adjourn - - -
PN404
MR CRAWSHAW: Can I just ask, after the luncheon adjournment I do intend taking the commission to some of the evidence. I do not see any evidence of the appeal books today in court, I request that you have them before you in order to follow what I am saying.
LUNCHEON ADJOURNMENT [1.03pm]
RESUMES [2.20pm]
PN405
VICE PRESIDENT McINTYRE: Mr Crawshaw?
PN406
MR CRAWSHAW: I was going take you to the decision of Mr Justice Alley. In print G5939 and it concerned the eligibility of refractory bricklayers assistants. You will see at page 535 about point 6 that the eligibility rule of the then BWIU set out and that is what now appears in part A of subrule A. You will see over the page at point G, it said:
PN407
The submission of the BWIU is that refractory bricklayers assistants ...(reads)... the BWIU produced evidence.
PN408
Then at page 538 point J, his Honour said:
PN409
The BWIUs constitution rules suffers from certain difficulties in construction ...(reads)... as to be without meaning.
PN410
There is a reference to Airds case. Then over the page point B:
PN411
When viewed objectively and bearing in mind the purpose which it ...(reads)... falls within this description.
PN412
Then down at point J his Honour holds:
PN413
In this matter I am satisfied that the work of the refractory bricklayers assistant has immediate significance in relation to that of the refractory bricklayer.
PN414
Then in the appeal decision, you will see on the first page at print G7, G6786 the Full Bench said:
PN415
It is not an issue in these appeals that a refractory bricklayer should be ...(reads)... of the refractory bricklayer's assistant.
PN416
Then if I could go over to page 3 of the internet copy, point 6:
PN417
Once it is established that the rule of the BWIU is not confined to ...(reads)... Justice Alley or upon this appeal.
PN418
So that case is authority for the point that in relation to those tradespersons set out in part A of the rule, that labourers employed in connection with those trades, are eligible for membership of the CFMEU in like manner to the FEDFA rule not only to plant operators being eligible and the crane drivers but those working with them in their tasks.
PN419
If I could go to a slightly, once again on this present eligibility, go to one last case which goes to a different point, it really goes to the present eligibility of the CFMEU in the coverage of the manufacture of precast concrete products and there is a full Federal Court decision on that matter in Westcrete Industries. The decision I am giving you is reported in 86 Industrial Report 269 and in that case there is a challenge to the eligibility of the CFMEU to cover certain the manufacture of concrete products that a company called Westcrete and the major decision was the decision of O'Connor and Moore JJs.
PN420
The eligibility rules of the CFMEU are set out at page 275 of the decision and although various parts of the CFMEUs eligibility rule were argued in that case is relevant including the FEDFA rule amongst others, the court found it not necessary to go to them, finding that there was eligibility under subrule A and they particularly dealt with that issue at page 279 and onwards. You can see at the top of page 279 it is said:
PN421
This was of course a challenge ...(reads)... as that expression appears in rule...
PN422
I won't read all the permutations there:
PN423
...of the CFMEUs eligibility rules ...(reads)... preparation and erection of those products.
PN424
I won't read you the whole of the analysis of that part of the rule but suffice to say the Full Federal Court endorsed the approach of the Full Bench of this Commission and I think also the earlier approach of a Commissioner of this Commission and in particular at the bottom of page 280 said:
PN425
It is to be recalled that it appeared ...(reads)... suggest it should be given some limited meaning.
PN426
And then there is reference to the principle of liberal construction and then they go on to say:
PN427
In our view the word preparation ...(reads)... both the Riverstone and Mulgrove sites.
PN428
Of course, just returning to paragraph 57 of the first Full Bench decision, there is a reference in subrule D to persons engaged in or in connection with the coal and shale industries. No one has put up anything more than a token opposition to the suggestion that that means that construction of coal mines or any work on coal mines falls within the eligibility rules of the CFMEU.
PN429
Now on the question of present coverage, the second Full Bench decision dealt with this matter at paragraph 5 and paragraph 5 says:
PN430
Senior Deputy President Williams in his ...(reads)... do not refer to industry or industries.
PN431
Then this Full Bench went back to discussing the existing eligibility:
PN432
The existing eligibility rules of ...(reads)... erection etcetera of any building.
PN433
There is a reference back to paragraph 57:
PN434
Such persons accordingly are not relevant employees. The remaining persons within the site...
PN435
Then this Full Bench went on to consider the persons who fell within the proposed rule, and I will come to that in a second, but can I say, with respect, in our submission that summary puts a gloss on the existing eligibility of the CFMEU. It doesn't - in particular it ignores the very important area of plant operators and crane operators and those assisting in or about the work of those employees that are found in the FEDFA rule and that's not confined in any way by the notion of working in the building industry or matters of that kind. That of course becomes very important in the application of the section 204 subsection 4 test and any other considerations that the Full Bench undertake. For example, there's some mention in paragraph 18 of the second decision to road construction and pipeline construction.
PN436
Well, of course, if plant operators are already covered by the existing CFMEU rules and indeed if those assisting in or about plant operators are also covered, it rather narrows the area of consideration in relation to road construction and pipeline construction where, I think, it can be accepted that there's a large number of plant operators carry out that work. Indeed we would be so bold as to say the overwhelming majority of employees on such work would be plant operators. If I then can move on in terms of this important task of identifying the relevant employees to the other side of the equation and that's the outer limit of the proposed rule change.
PN437
If I could deal firstly with the rule change as approved by Senior Deputy President Williams. That, of course, has been the subject of extensive discussion by this Full Bench in the first decision, particularly at paragraphs 60 through to 80, which includes various examples of employees in maintenance area and employees this Full Bench held fell outside the notion of construction industry. It's clear that this Full Bench is of the view that maintenance employees, employed in those various industries, come within the limits of the primary rule change and that's accepted.
PN438
However, we would submit it's also equally clear from your first decision that the identification of the limits of the employees covered by the rule change should not take place on an industry basis. To do so involves an approach which applies tests that ignore the terms of the rule change and whether the employees come within the wording of rule change or not. So to apply an industry test would involve the making of a fundamental error of a similar kind to that which this Full Bench found Senior Deputy President Williams to make.
PN439
In particular can I, it's not the only reference, but can I take you to paragraph 77 of your first decision where this Full Bench said:
PN440
The view expressed in his Honour's paragraph 52 is directed to ...(reads)... to the construction industry.
PN441
For the reasons we have given, this is not the relevant inquiry. The relevant inquiry is whether a production worker or any other worker comes within the proposed rule. In our view, the production worker as postulated by his Honour, that is those who, as part of their duties, carry out some construction or maintenance work, would come within the proposed rule because they are workers engaged on any work in or in connection with the construction, repair, maintenance of any building or structure or any other work or projects.
PN442
So in our submission, just as it was incorrect for Senior Deputy President Williams to introduce this notion of construction industry, though some blame our submissions for that, but in any event, so perhaps I shouldn't use the word introduce, but to decide the matter on the basis of the words construction industry, so it would be a similar error to decide afresh on the basis of some notion of industries other than the construction industry. The focus as this Full Bench said in the first decision should be on the actual words. On any approach to those actual words the rule change does not extend to employees who only carry out production work.
PN443
There's an argument that's been put and accepted seemingly that production employees who do some maintenance work are covered by the rule change, but on any approach the rule change does not extend to employees only carrying out production work. Although none of the objectors call any evidence as to the proportion of employees in these industries that are production employees, in our submission, you are entitled to rely on your general experience that production employees would form the bulk of employees in the industries that my learned friend, Mr Dixon, represents for example, within the subject of his submissions.
PN444
So that is, in our submission, one area that's excluded from your consideration. If you're going to go into so-called other industries, you've got to exclude from your consideration employees that only carry out production work. The other area that's got to be excluded, of course, as a result particularly of the Full Federal Court decision, is those areas covered by the settlements. If I could just go to the Full Federal Court decision, this question was particularly dealt with at paragraphs 68 onwards. There's reference in paragraph 68 to the settlements and particularly those settlements that were reflected in the terms of the alteration to which Senior Deputy President Williams gave his consent.
PN445
Then paragraph 69 sets out the relevant alteration reflecting those settlements. Then paragraph 70 and 71, I won't read these paragraphs, but 70, 71, 72, 73, summarise the consideration by this Full Bench and then, I think, my learned friend Mr Kenzie took you to paragraph 74. On the consideration continuing, you really have to read right up to paragraph 83 in relation to that matter but I take it the Bench has had a look at this decision.
PN446
So, as I said, in your redetermination in considering the limits of the rule you've got to take out those employees that are only doing production work but you've also got to take out a number of other employees as a result of the settlement and that of course, if you look at the ETU exclusion, that takes out any employee involved in electrical maintenance, whether it be an electrician or an electrician's assistant. Mechanical maintenance is also excluded as a result of the exclusion for Western Australia. The professional engineering type employees are excluded as a result of the APESMA exclusion. Clerical employees are excluded as a result of the exclusion for the ASU.
PN447
So the target area is not as huge as one might have thought as first blush. Having regard to the considerable eligibility that the CFMEU presently has, having regard to the analysis that I've just put to you of the limits of the rule change approved by Senior Deputy President Williams it's not by any stretch of the imagination an area in which you could say, even if the approach was permissible this rule change covers a whole industry or nearly a whole industry. It's nothing of that nature, it's a much smaller compass and it's very important in applying the section 204(4) and any other tests you might apply that you have regard to that limited area covered by the rule change.
PN448
In our submission it would be erroneous to apply these tests on some notional industry basis which assumes that the outer limit of the rule change covers the whole of another industry other than the construction industry. As to the alternative rule change I thin it's fairly clear that on its face that it is confined to employees carrying out construction work. Any words of expansion have been taken out, it doesn't extend to maintenance employees, it makes it clear that the rule does not extend to production employees and maintenance employees in a number of industries, particularly those that have been nominated as areas of concern by those that my learned friends Mr Dixon and Mr Gallagher represent.
PN449
So, having regard to those submissions as to the identification of employees can I then move to the application of the tests in section 204(4) to those particular employees. Now, the matter of the application of these tests has previously been dealt with by this Commission and also by the earlier full bench in re CPSU. Can I hand up a copy of that earlier full bench. That's reported in 100 IR 296. Could I go to page 328, paragraph 52. The full bench there sets out, Senior Deputy President Williams' observations as to the operation of subsection (4) of section 204 and I think in terms, Senior Deputy President Williams adopted those observations in this case. In point 4 they are as follows:
PN450
Satisfaction of the 204 subsection (4) criteria obliges a designated presidential member subject to the acceptance of an undertaking of the type described in section 204(5) ...(reads)... Any undertaking or undertakings to be given by an applicant organisation must be such as would serve the purposes specified in section 204(5)
PN451
Now, at paragraphs 89 onwards the Full bench considered those principles. This is at page 345 of the decision:
PN452
It is noted at paragraph 55 above, Mr Einfeld challenged Senior Deputy President Williams' application of section 204(4) ...(reads)... subject to minor reservations
PN453
Then they deal with those minor reservations. Paragraph 90:
PN454
Although the formulation was not challenged, we do not accept that there are two separate ...(reads)... contemplated in section 204 subsection (4) could arise without the direction intervention of an objecting organisation.
PN455
With respect, we submit that those principles of Senior Deputy President Williams, as modified by this Full Bench in Re: CPSU are the correct principles to apply. Just before leaving that decision, at paragraph 95 the Full Bench in Re: CPSU, this is at page 346 also considered the difference between and the confluence of the more conveniently belong and more effectively representative test in these terms:
PN456
Nor do we consider that there is any substance in the criticism made of our failure ...(reads)... from a different perspective that the class might more conveniently belong to that organisation.
PN457
In our submission, applying those principles and indeed, applying the law in determining more conveniently, belong and more effectively represent the Commission is required to consider matters other than the question as to whether objectors or other organisations are parties to industrial instrument and whether those objectors and other organisations have members, have union membership in the relevant area.
PN458
A determination of the central test merely on that basis, merely on the basis of those two criteria namely, industrial instrument coverage and presence of some union membership would be fundamentally misconceived. In any rule change it would be expected that the employees proposed to be covered by the rule change firstly, would not be covered by industrial instruments of the applicant union but would be covered by an industrial instrument of another union.
PN459
The other expectation is, in any rule change, the relevant employees would not presently be eligible to be members of the applicant union, if they were, they wouldn't fall within the scope of the rule change. So to apply those two tests as the sole criteria would be fundamentally erroneous. Just taking the question of union membership alone, surely it cannot be enough in applying that criterion to say, well, another organisation has some union members in the relevant area and that is as high as the evidence can be put in this case.
PN460
There is no evidence at all of union density in the relevant areas, there is no real evidence of union membership in relation to the relevant areas covered by the rule change. There is some general evidence as to union membership but no specific evidence. Also, there is no cogent evidence going to the effectiveness or performance of the AWU. We accept that the AWU has industrial instruments in the area but so what? That is what you would expect in any rule change, that there be another organisation with industrial instruments in the relevant area but it doesn't go much further.
PN461
Now, we received this morning Mr - - -
PN462
SENIOR DEPUTY PRESIDENT POLITES: Mr Crawshaw, if your argument about the extent of the CFMEUs eligibility rule is right and the organisation has in fact, eligibility to cover a number of people in these other areas, couldn't it be material that it hasn't taken any steps to cover those people?
PN463
MR CRAWSHAW: There is no evidence to that effect at all.
PN464
SENIOR DEPUTY PRESIDENT POLITES: Well, you concede the AWU has coverage, are you suggesting that we should assume that you have coverage? Take hydrocarbons or oil or something, why is the suggestion that we shouldn't pay regard to the AWUs coverage because you say it's ipso facto likely that they would have it and not pay regard to the fact that the CFMEU hasn't sought to obtain coverage in those areas where it has eligibility in the hydrocarbons area.
PN465
MR CRAWSHAW: But the CFMEU has industrial instruments in all of those industries.
PN466
SENIOR DEPUTY PRESIDENT POLITES: Would you mind telling me where in the hydrocarbons industry? I mean, apart from the General Construction and Maintenance Award.
PN467
MR CRAWSHAW: I do want to go in some detail to the areas where we do have coverage in those industries nominated by Mr Dixon, I was just going to go to that. The difficulty we have is that we only got this document this morning and we haven't had a chance to check the evidence and we'll need some time to respond to those particular references. It's not good enough to just in broad terms refer to it and not go to the actual evidence.
PN468
Can I take that question on notice, your Honour, and indeed it requires an answer not only in relation to the Hydro carbons industry but in relation to the other industries as well. But I think in general terms maybe hydro carbons is an exception. We do have industrial incidents in those various industries. What's set against us is that we've tried to extend too far into those industries. As I said I'll have to come back to that question, however, we can be quite confident about there being no detail in the evidence of the AWU membership in each of those industries. So if we go to the question of membership the other factor that we're discussing here, there's no detail about membership or of how that membership relates to the number of employees eligibly members of the AWU.
PN469
In other words there's no evidence whatsoever of union density. As I said before there's a big difference between having some employees as members in a particular relevant area and having a substantial number of employees in a particular relevant area. The evidence does not bear out the latter proposition in relation to the AWU. Whatever you identify as the relevant area there's no evidence as to high union density. As I said we'll have to take some time to deal with the particular evidentiary matters in Mr Dixon's submission. But can we just say this in relation to the propositions that he summarises in paragraphs 10(a) and (b). He says:
PN470
There was no serious challenge by the CFMEU to this case or these submissions.
PN471
We submit that that is wrong. Then it said:
PN472
That the evidence referred to above reveals very effective representation by the organisations referred to of their members and persons eligibly members in the industries identified.
PN473
We submit that the evidence does not bear that out. There's no evidence of very effective representation by any of those organisations including - - -
PN474
SENIOR DEPUTY PRESIDENT POLITES: Mr Crawshaw, you can't have it both ways. You can't say I need time to look at this evidence and then to put a conclusion that the evidence doesn't bear out what Mr Dixon says it does. Either you take us to the evidence to show it's wrong or show us to support your submission or your don't. You can't approbate and reprobate like that.
PN475
MR CRAWSHAW: No, I was involved in the case and I know that there wasn't that evidence. In order to bear out the proposition that I am putting, I will have to go to the details of that evidence and show you why the proposition I'm putting is correct. I am not approbating and reprobating. I'm saying we'll have to look at the details of that evidence, that this is our proposition. The evidence from my recollection of the matter and the evidence as demonstrated in the decisions that have been handed down went no further than saying the AWUs got industrial instruments in this area and the AWU has some membership. There's nothing on top of that.
PN476
That's why it's very important to go to the evidence in this case rather than to just deal with it in general terms as admittedly Mr Dixon's given some evidentiary references but the AWU submission for example at paragraph 6 the second sentence says:
PN477
It is clear from the evidence that in respect of nearly all of those industries other than the construction industry effected by the rule change, the predominant union in terms of membership, party status to awards and agreements and all other relevant areas of that union activity is the AWU.
PN478
That generalisation can be accepted in terms of party status to awards and agreements perhaps, but certainly not in terms of membership and all other relevant areas of union activity. You would need to see the detail of any evidence to support that proposition which we submit once you look at the detail you won't find it. Similarly in relation to paragraph 9, second last sentence:
PN479
Here as the evidence has demonstrated the AWU is highly active in the areas effected by the CFMEUs rule change and enjoys widespread support amongst the effected employees.
PN480
In our submission, you won't find those propositions borne out by any cogent evidence. The other matter that we wanted to put with some force is that in considering the tests in section 204 the Commission although applying the tests in relation to the relevant employees, should take account of the obvious relevance of performance and effectiveness of the applicant in its present areas of coverage. Particularly whereas in this case the employees in the present area of coverage are doing similar work to those covered by the rule change. The point about the evidence of the similarities of the building and civil and mechanical construction sector in terms of industrial relations is that the experience and capacity of the CFMEU in the building sector is relevant to the questions of conveniently belong an effectiveness in the area covered by the rule change.
PN481
In that regard can I take you to Mr Bodkin's evidence. Mr Bodkin's evidence is found in two statements, exhibit CFMEU2 and exhibit CFMEU107. If I could firstly go to CFMEU2 which was Mr Bodkin's original statement, you'll see from paragraph 2 if you weren't aware of it already that Mr Bodkin actually worked for the AWU for 25 years. But on this point about similarities he deals with, at paragraph 95 of his statement. He says at page 19:
PN482
From time-to-time some employer organisations bound by the construction and maintenance award ...(reads)... the basis of the quality of representation they provide to their members.
PN483
PN484
And then various alleged differences are set out and I will return to them in a minute. At paragraph 98, he says:
PN485
When examined objectively most of the above factors highlight the close similarities between ...(reads)... pursuit of good wages conditions and safe working practises.
PN486
Now that evidence was objected to in the initial round of objections. So Mr Tomago made a supplementary witness statement which was exhibit CFMEU107. In particular, he dealt with, at paragraph 32, the various dot points set out in paragraph 98 of his original statement. I suppose it is a matter of putting up the contrary argument to debunk it but he dealt with under the various headings the arguments about different client base, different type, nature, duration of the project. Different types of structures built and materials used. Different skills used by workers. And I go particularly to that. He says:
PN487
There is no substance to the claim that building and civil construction workers use significantly ...(reads)... Commissioner Watson carried out his work value inquiry in 1970.
PN488
That is an attachment to the statement, attachment 2:
PN489
As stated in 32.9 above there are significant differences within each sector and within ...(reads)... Industry Award and the AWU Construction and Maintenance Award.
PN490
He then goes on to deal with the arguments as to different costs structures. Different source of capital. Geographical areas. Industrial relations culture and wage relativities.
PN491
So, in summary the argument of the appellants including the argument they seem to be putting forward today is based on some sort of global view as to the role of the AWU and any other relevant unions as against the CFMEU in the whole of these other industries. And it includes on its face the argument evidence of the AWUs role in relation to production workers. One accepts that in most of those industries that have been the subject of evidence and argument the AWU covers the production workers.
PN492
So, it is not just a matter of saying, oh well give some lip service to those settlements and make the same decision. It is a matter of correctly identifying this time what the relevant employees are and applying the test to that, as I have said, much more limited number of employees than that suggested by the objectors.
PN493
If I could then deal with the alternative proposal and the application of the section 204 tests in relation to that. In our submission a consideration of the alternative proposal could lead only to a finding that the section 204 tests have been satisfied by the CFMEU. In our submission any examination of the alternate proposal as distinct from the proposal - the real change approved by Senior Deputy President Williams - would have it clearly falling within the definition of construction industry as used by Senior Deputy President Williams.
PN494
I'm not saying you should apply that definition of construction industry, or use it, other than for this point. And that is if the alternate rule change falls squarely within that definition it is clear that Senior Deputy President Williams' findings are correct in relation to the area covered by the alternate rule change. Now, of course, this Full Bench found that Senior Deputy President Williams was only satisfied insofar as his definition of the construction industry was concerned.
PN495
If the alternate proposal falls within that definition there has effectively been no challenge to that satisfaction in relation to the alternative proposal before the Full Bench. Because the appeal was run based on a challenge to the extent of the satisfaction based on the wrong identification of the employees. Rather than to say the evidence wasn't there to satisfy the section 204 test within the construction industry.
PN496
In particular, there was no effective challenge to Senior Deputy President Williams' findings - other than the identification of employees point - his findings at paragraph 54 to 81 of his decision. If I could take you to those findings. He deals with the more conveniently the long test commencing at paragraph 54, in particular he says at paragraph 57:
PN497
In this application the comparison ...(reads)... by another organisation other than the AWU.
PN498
And that was the case. The case that was run because Senior Deputy President Williams was one that effectively gave the game away on the section 204 test and concentrated on discretionary matters.
PN499
SENIOR DEPUTY PRESIDENT POLITES: Except for the AWU?
PN500
MR CRAWSHAW: I'm sorry?
PN501
SENIOR DEPUTY PRESIDENT POLITES: That passage says, nobody has won a case like that other than the AWU.
PN502
MR CRAWSHAW: Well, I think - - -
PN503
SENIOR DEPUTY PRESIDENT POLITES: That is how I read it I have got to say.
PN504
MR CRAWSHAW: Well, that is certainly not how I read it. Other than AWU is not an exception to the whole sentence but an exception to or qualifies the words represented by another organisation.
PN505
SENIOR DEPUTY PRESIDENT POLITES: That ignores the meaning of the first use of other to the line after no, the second line. I admit it is not the clearest sentence in the world but I would have thought that was the more likely meaning of it.
PN506
MR CRAWSHAW: Well, we submit to the contrary and in any event that was consistent with the evidence we submit. The fundamental reason why the objections fail under the tests in section 204(4), is that the CFMEU already has the runs on the board in relation to employees doing similar work and even if you don't allow an examination of existing coverage, I withdraw that. Even if you confine a consideration to civil and mechanical construction for example, the CFMEU already has the runs on the board in relation to that area, particularly through its present coverage of trades persons and those covered by the FEDFA rule.
PN507
Now, I want to take you to some of the evidence on the date of these tests. I take you to Mr Sutton's statement, that is exhibit CFMEU4.
PN508
SENIOR DEPUTY PRESIDENT POLITES: Will you be coming back to Mr Bodkin's statements, Mr Crawshaw?
PN509
MR CRAWSHAW: I may be, if you could just leave Mr Bodkin out for the time being. I will try and deal with all the points from Mr Sutton's statement in one go. At paragraph 7 he deals with the awards of the old BWAU and the other predecessors. You will see in particular at 7.6 he refers to the classifications covered by the National Building and Construction Industry Award. At paragraph 7.11 he says:
PN510
From records kept by the CFMEU ...(reads)... in the construction industry in Australia...
PN511
and there is reference there to the Northern Territory and ACT Award and also the Mobile Crane Hiring Award. Then at paragraph 8 there is evidence of the CFMEU involvement in civil mechanical construction. At point 8.3 he says:
PN512
Large contractors who are involved ...(reads)... trades persons such as form work carpenters.
PN513
Then at 8.6:
PN514
Other examples of specialist contractors ...(reads)... they have worked in building construction.
PN515
Then he says:
PN516
Of the type of contractors referred ...(reads)... or the demolition of an existing structure.
PN517
Then there's reference to how CFMEU organisers are traditionally drawn from the construction industry. Then he gives evidence of 8.11:
PN518
I'm aware of many major civil construction projects where the overwhelming ...(reads)... from the AWU.
PN519
Then he goes on to talk about award restructuring in paragraph 10. He refers to collective bargaining and the number of collective bargaining agreements in paragraph 11, 2100 collective bargaining agreements and there are various details as to the percentage of certified agreements obtained at the behest of the CFMEU and while I'm there paragraph 12 deals with what Mr Sutton has to say about the demarcation agreements now.
PN520
He was cross-examined about the demarcation agreements, but you'll find precious little challenge to any of the rest of his statement in the evidence. In our submission that evidence should be accepted in those circumstances. On the question of agreements, Ms Ann Skinner gave evidence, it's exhibit CFMEU 54, of the number of agreements reached by the CFMEU, she did an analysis, maybe she was the first and set a bad precedent.
PN521
But you'll see she's the librarian information resources manager working with the CFMEU and she conducted a search of the information held in Cyrus. You'll see in paragraph 4:
PN522
I downloaded the Excel spreadsheet referred to in point 3 above and selected all ...(reads)... construction industries.
PN523
And you'll see the result of her analysis, AS1 where in terms of the number of agreements the CFMEU had 71.5 of the number of agreements in those industries and the AWU had 4.92 per cent. Fashionable or not the comparison is marked. The results are evidence in the case which I won't take you to but it wasn't seriously challenged that the skills used by the labour in classifications across the various sectors of the construction industry were the same, that's in addition to what Mr Bodkin had to say.
PN524
They're referred to in our original submissions. Also referred to in our original submission was the copious evidence of multi-skilling as a feature of the industry and including the fact that AWU witnesses have given evidence as to multi-skilling. Indeed Mr Tuck gave evidence and this is - yes, I'm referring to our original submissions at pages 36 and 37.
PN525
There's a reference in our original submissions, I don't know where they are in the - or whether they ever were in the appeal book. I think the original appeal book didn't have transcript so the Commission - the reference in our original submissions is to page 37, but in particular I wanted to refer you and I won't take you to the transcript, was at transcript 489 Mr Tuck who was a witness for the AWU, gave evidence that plant operators and carpenters doing labouring work and the old labourer being rubbed out or pushed aside and that goes back to my point about the existing eligibility. Those plant operators and carpenters doing that labouring work would be covered under CFMEUs existing eligibility. The old fashioned labourer who had nothing to do with plant operators or carpenters or any other classification presently covered by the CFMEU wouldn't be covered under the existing eligibility but they are as Mr Todd says, a diminishing breed, not only because of more mechanisation, but also because of the multi-skilling of - some might say de-skilling, but multi-skilling of plant operators and carpenters who do labouring work and Mr Tuck was complaining that they were merely taking over the work of the old labourer.
PN526
Also if you look at page 37 of our submission, there are other transcript references which I once again won't take you to. There's a large body of evidence to support the proposition that construction workers possess and utilise a range of skills and one need only look as far as the qualifications in the way the various workers from the industry describe their classifications in giving their evidence and there's references there to Mr Adams, AWU witnesses again, Mr Adams, labourer/operator, Mr Auld, operator/labourer, Mr Leech, plant operator/labourer and other references to labourers assisting plant operators.
PN527
Just before leaving our original submissions, if the Members of the Bench still have that, can I just take you to our submission therein on the attitude of employees and this is particularly relevant in view of the submission that my learned friend, Mr Kenzie, said about there being evidence that the AWU, I don't want to misquote him but it was paragraph 9, about the attitude of employees to AWU membership. We deal with the question of the attitude of the employees at paragraph 56 of our original submission and I suppose in this sense we join with Mr Kenzie in saying the attitude of the employees is relevant.
PN528
It's not something that was the subject of the decision on the last occasion, but we say at page 56 that it's a highly relevant factor and we also say that the fact that a substantial number of employees in civil construction prefer to be members of the CFMEU is some testament to the effectiveness of the CFMEU as a powerful argument for the CFMEU being given plenary coverage in civil construction. We go on to say the evidence is that where employees in the area of civil construction have had their choice of either belonging to the AWU or joining the CFMEU they have overwhelmingly opted for the CFMEU and that's particularly shown in the area of plant operators where there's existing dual eligibility.
PN529
In the next paragraph, the second last paragraph on page 56, we point to "that in New South Wales the membership amongst plant operators is overwhelmingly in favour of the CFMEU". Mr Hayes made the same concession for Tasmania at transcript 280, I think, he probably repeated the New South Wales point. Mr Harrage put the break up of the membership amongst plant operators in New South Wales at - Mr Harrage put the break up at 98 percent to two percent in favour of the CFMEU, there's a reference in the transcript on that. He described it as theoretical competition only.
PN530
Then, on the next page, page 57, we detail the wide ranging evidence about employees leaving the AWU and joining the CFMEU. It goes on to page 59. If I could then move onto the area of discretion in the public interest. Our primary submission is that section 90 of the Act which has been used by this Commission in previous cases to justify a public interest discretion - our primary submission is that that refers to the arbitral functions of the Commission. If you go to section 90, it says:
PN531
In the performance of its functions the Commission shall take into account ...(reads)... state of the national economy etcetera.
PN532
Now that particular section is found in part 6 of the Act dealing with the arbitral functions of this Commission. Section 204 of the Act is of course found in part 9 division 2 of the Act and in our submissions it's not an arbitral function in the sense set out in part 6, but is the exercise of an administrative function, an administrative function because it was historically performed by the Registrar. We would say - - -
PN533
SENIOR DEPUTY PRESIDENT POLITES: Well, that's a long time ago in history now, isn't it, I mean it's been nearly 20 years.
PN534
MR CRAWSHAW: Yes, but the reason I draw attention to that is that it doesn't detract from the fact that what the Commission does when it's approving a rule change is not the traditional arbitral function found in part 6 and in our submission section 90 is confined to part 6.
PN535
SENIOR DEPUTY PRESIDENT POLITES: The court didn't seem to take that view, did it?
PN536
MR CRAWSHAW: Certainly the precedent of this Commission is against that proposition.
PN537
MR DIXON: And against your own submissions earlier we may well say.
PN538
MR CRAWSHAW: What submission?
PN539
MR DIXON: Section 90 applies.
PN540
MR CRAWSHAW: The court raised this matter in the course of the hearing and I think as my learned friend Mr Dixon was trying to say, it was not a point that we argued before you on the previous occasion and in those circumstances we didn't pursue the matter.
PN541
MR DIXON: Well I'm sorry, that's wrong. We squarely put that section 90 apply.
PN542
MR CRAWSHAW: Yes, and it was dealt with at paragraph 59 of the Full Federal Court judgment. They say:
PN543
We do not consider the approach adopted by the Full Bench involved jurisdictional error ...(reads)... as it had not been raised as an issue.
PN544
Now it formed no part of our case before the Full Federal Court to argue that point. It was raised from the Bench and we quite correctly pointed out that we hadn't raised it before in the appeal and we didn't feel it appropriate or even open to raise it in those proceedings, but now that the matter is for re-determination we believe it's open for us to raise a point that in effect has been left open by the Full Federal Court.
PN545
VICE PRESIDENT McINTYRE: Mr Crawshaw, I wonder if I could just interrupt you for a moment just about the future of this hearing, bearing in mind the time of the day and more particularly the interests of the two interstate Members of the Bench. I was just wondering roughly how much time you estimate you'll need, and your position generally.
PN546
MR CRAWSHAW: I think I could go to about 4.30, but I certainly want the opportunity to deal with the evidence set out in Mr Dixon's submission and the question asked by Senior Deputy President Polites. I don't think - all I'm saying is I need some time to do that. I don't think it would take a great deal of time once we've looked at it, in terms of hearing time.
PN547
VICE PRESIDENT McINTYRE: Then there presumably will be replies by the other people at the Bar Table following that.
PN548
MR CRAWSHAW: It's a matter for them. Perhaps you should ask - - -
PN549
VICE PRESIDENT McINTYRE: Do we need to fix another day, that's really what it boils down to.
PN550
MR CRAWSHAW: I would have thought so.
PN551
MR DIXON: Your Honour, it seems that Mr Crawshaw may well be able to deal with what he has to say in writing. He was of course invited, if not directed, to do so for the purposes of the proceeding.
PN552
VICE PRESIDENT McINTYRE: I think we just said an outline.
PN553
MR DIXON: But we don't even have that on all the issues. But it seems appropriate that he should finish his submissions for as long as the Full Bench can do so today, or is able to sit, and then - - -
PN554
VICE PRESIDENT McINTYRE: That's roughly now.
PN555
MR DIXON: And then he should, in our respectful submission, put the balance of his submission in writing and we'll reply in writing.
PN556
MR CRAWSHAW: Well, I suggest we should be able to put our submissions in the normal way. Could I just say that in the course of this case we've often urged putting things in writing and no need for oral submissions, and even though things have been put in writing my learned friends have come on and addressed at length. It seems on this occasion when faced with this Full Bench's prima facie view, no doubt, from the second Full Bench decision, they don't want to say much, and when we're put to the task of trying to convince you to take the contrary course than what you took on the last occasion, that the rules have changed.
PN557
VICE PRESIDENT McINTYRE: You would like to complete your submissions orally then, Mr Crawshaw?
PN558
MR CRAWSHAW: Yes.
PN559
MR KENZIE: Your Honour, might I be heard briefly. Your Honour, our position is this, that as we understand what is happening now, Mr Crawshaw has addressed in relation to the rule as it was placed before Senior Deputy President Williams. Notwithstanding the debate that took place this morning, and the position as indicated by the Full Bench today as to what the Full Bench regarded as part of the process and what it did not, our friend has arisen and has proceeded to put submissions about the alternative rule that he has proffered, and that is what he's now doing. He is now, as we understand it, doing that.
PN560
MR CRAWSHAW: No, no, I'm going to discretion.
PN561
MR KENZIE: Well, if I could just be heard. Now, insofar as our friend is proceeding to attempt to put matters insofar as they relate to the alternate rule, he is doing that against a background in which there were submissions about the appropriateness of that this morning, and against a background in which the Full Bench has indicated its view. In those circumstances there are proper bases, we do respectfully submit, to ask Mr Crawshaw to put those submissions in writing. So far as one can tell, the Full Bench is hearing Mr Crawshaw in relation to those matters. The Full Bench knows, although we haven't I think - we would have some more to say, that we utterly oppose this process and regard it as entirely inappropriate for a hundred and one reasons, but my friend is embarking on it, not withstanding the indications from the Commission.
PN562
It's in those circumstances that we do submit that he ought to be required to deal with these matters in writing. All of this is against a background in which our friend is now putting out large parts of the evidence; he's going to Mr Bodkin's evidence; he's reading you large slabs of evidence in submissions, against a background in which there have been two Full Bench hearings which that evidence was related to. So there has been two opportunities in which to go to all of these matters. And the only proper basis on which our friend can suggest that he's entitled to do this for a third time, is because it must be being said that there's something new, namely the alternative rule.
PN563
Unless it is clear that our friend is entitled to do this on the basis that it would be wrong to shut him out in relation to the alternative rule, then he should be entitled - he should be made to proceed on the basis that the Full Bench has indicated that that is a matter for another proceeding. And, your Honours, we haven't been heard in relation to the appropriateness of that, and I don't know whether the Bench would now want to hear us there. It can't be said that there's any denial of jurisdiction in relation to a failure to hear Mr Crawshaw in relation to the alternative rule. If he's right on that, then he could keep on producing alternative rules throughout the hearing and we'd never stop.
PN564
It can't be right that he has an entitlement to do this: to raise this at the heal of the hunt, to insist on this going forward without there being a consideration of whether it would require further evidence. It's entirely irregular, but he's doing it. And as he's doing it, and as he's choosing to do it in the face of what the Full Bench has said, there are strong reasons why he should be obliged to put this in writing so it can be dealt with. That's our position, if it please the Commission.
PN565
VICE PRESIDENT McINTYRE: We would prefer to let Mr Crawshaw finish his submissions, which he indicates will take another 30 minutes or so, and to hear the replies orally. And it would just be a matter then of fixing another date. Maybe if the parties could let my associate know what dates might suit them as soon as possible, we'll let you know the date either later today or tomorrow. Or alternatively, I could let my colleagues get away and fix that with you now. I'll get their dates. We'll adjourn and I'll come back on the Bench and discuss it.
SHORT ADJOURNMENT [4.08pm]
NO FURTHER PROCEEDINGS RECORDED
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2002/2496.html