C2002/2542, Transcript of Proceedings [2002] AIRCTrans 3064 (8 August 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT05073
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE, President
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER CRIBB

C2002/2542

APPEAL UNDER SECTION 45 OF THE ACT BY
AUSTRALIA AND NEW ZEALAND BANKING GROUP
AGAINST DECISION OF AND REFUSAL TO EXERCISE
JURISDICTION BY COMMISSIONER EAMES AT
MELBOURNE ON 29 APRIL 2002 IN C2002/1547,
PR917204

MELBOURNE

10.00 AM, THURSDAY, 25 JULY 2002

PN1

MR H. DIXON, SC: I seek leave to appear with my learned friend MR R. BUNTING.

PN2

MR P. GARDNER: I seek leave to appear for the union and with me is MS M. MALONEY.

PN3

JUSTICE GIUDICE: Mr Dixon.

PN4

MR DIXON: If it please the Commission. The appellant has attempted to outline its submission in written form and copies were made available to the Commission and to the respondent yesterday. I hope they have found their way through to members of the Bench.

PN5

JUSTICE GIUDICE: Well, they did, Mr Dixon, but speaking for myself, I haven't had an opportunity to read them. Would you like us to do that before you start or do you want to take us through that?

PN6

MR DIXON: Your Honour, it may be - I am in your Honour's hands but I intend to go to most of the passages in brief form but, principally, support them by references to a number of cases.

PN7

JUSTICE GIUDICE: Yes.

PN8

MR DIXON: I might get some guidance from your Honours and Commissioner about the cases because I know you are all familiar with them. But I will take some direction so that I don't waste the Commission's time in that regard.

PN9

JUSTICE GIUDICE: Yes. Well, perhaps if you deal with the matter in the way you had intended to before I asked that question and we will bear in mind what you have just said about the authorities.

PN10

MR DIXON: If your Honour pleases. The case at first instance concerned an application by the ANZ in reliance of the provisions of the ANZ Group Award and the ANZ/FSU Certified Agreement 1998. The bank applied to be relieved of the obligations which the FSU contended were operative which are contained in the agreement to pay severance pay to employees in circumstances where ANZ have obtained other acceptable employment for staff under notice of termination.

PN11

The effect of the Commission's determination, in our respect submission, at first instance is to deprive the bank of its entitlements to have the application determined. The application is to be found in appeal book 2 at 348. I don't need to go to that at the moment. But I need to just briefly point out some of the background material and ask the members of the Bench to go to the Commission's decision of 29 April which appears in appeal book volume 1.

PN12

The application that is sought is set out on page 4 and the circumstances which pertained to the application are referred to by the Commissioner in paragraphs 9, 10, 11 and 12 where it sets out - he sets out the fact that a joint venture had been entered into between the ANZ and the ING group announcing the creation of a unique, strategic position in funds management and life insurance in Australia and New Zealand. It is to be established on 1 May and they have set out in paragraph 11 the relevant employees who are affected by the application and the numbers are referred to in paragraph 11 and 12.

PN13

The matter is further summarised usefully at paragraphs 23 and 24 where Mr Bunting had advised the Commission that the application sought to deal with the question about:

PN14

Whether redundancy pay is payable in the circumstances arising from the recent announcement and the principal issues whether affected employees who may choose not to accept a transfer to the new employer on essentially the same terms and conditions, performing the same work in the same location should have applied to them the general severance pay standard applicable within ANZ.

PN15

The union accepted that there was to be a transmission of business and that the entitlements which accrued whilst the relevant employees were employed by the ANZ would be retained once their employment continued through the new entity, so that all entitlements which had accrued to date would be secured by operation of the certified agreement and also the award. And that was the position put by the ANZ in any dealings it had with the relevant employees.

PN16

Now, whilst I have been making those introductory remarks I reflected on the matter your Honour, the President, raised with me before and I am still not certain whether it is going to be more time efficient for me to ask your Honour and any other member who hasn't had a chance to read, perhaps to have a brief read of the submissions. It might save time but I - and I only raise that issue for that reason. I might, just as introductory remarks, say that the ANZ contends that there are two specific sources of power in the Commission to deal with the matter. They are referred to in paragraph 2 of our outline.

PN17

One of the issues which occurred at first instance was whether the operation of section 170N precluded the Commission from operating - exercising its arbitral powers in determining the resolution of the dispute between the parties under a particular clause in the award. A crucial ingredient in the application and in the appeal is the degree to which the Commission will read the provisions of the award as part of the agreement, incorporated into the agreement, or, alternatively, in conjunction with the agreement.

PN18

In either case, whether the particular provisions of the award have been expressly incorporated into the certified agreement or whether the terms of the certified agreement are simply to be read in conjunction with the provisions of the award, it is our respectful contention that there is, in either case, jurisdiction for the Commission to resolve this particular localised dispute in accordance with the standard dispute resolution procedures which have been accepted by the Commission and the High Court as dealing with such matters. Having said that, I pause again and - - -

PN19

JUSTICE GIUDICE: Well, why don't we read your submissions. Just give us a few moments to do that, Mr Dixon.

PN20

MR DIXON: If your Honour pleases.

PN21

JUSTICE GIUDICE: Thanks, Mr Dixon.

PN22

MR DIXON: Thank you, your Honour.

PN23

SENIOR DEPUTY PRESIDENT WATSON: Mr Dixon, is it fair to summarise the primary argument you are advising as being as follows, what was sought by ANZ Bank was a private arbitration under clause 11.2 of the award, that being incorporated into the agreement and being a dispute settlement procedure amenable to the application of section 170LW with prior consent of the parties and, therefore, not being an arbitration under part 6 affected by section 170N?

PN24

MR DIXON: With respect, your Honour, that is the first basis or jurisdiction that we say that exists.

PN25

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN26

MR DIXON: And if that is wrong - and in relation to that section 170N does not apply.

PN27

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN28

MR DIXON: If we are wrong in relation to that then, in our respectful submission, the clause 11.2 in the award provides separate power by reason of the parties consenting to a dispute settlement process in relation to a particular set of circumstances in advance. Section 170N would not apply because it is not an exercise of arbitral powers and, in any event, we say that there is no identification in character of the issues that arise from the bargaining notice and those which would be arbitrated if there were arbitration powers under the award.

PN29

SENIOR DEPUTY PRESIDENT WATSON: Yes. And the primary argument relied on the proposition that there is no inconsistency between the agreed redundancy provisions and clause 11.2 of the award?

PN30

MR DIXON: Yes. They are not inconsistent. There is a complementary mechanism provided to resolve an issue in the event that it was to arise where acceptable - other acceptable employment was found.

PN31

SENIOR DEPUTY PRESIDENT WATSON: Can that arise during the terms of the agreement? It seems to provide redundancy provisions and payments to operate, absent any provision to waive their application; they simply applied.

PN32

MR DIXON: Your Honour, the provisions of clause 11 of the award are a mechanism for a resolution of a dispute. With the consent of the parties the Commission may have the power to readjust the arrangement in the event of a particular set of circumstances. And it matters not, in our respectful - - -

PN33

SENIOR DEPUTY PRESIDENT WATSON: But it only operates if there is no inconsistency between the two provisions?

PN34

MR DIXON: There would be no - there is no - once has got to read clause 15 of the award which deals with termination.

PN35

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN36

MR DIXON: That would operate if there was a termination of employment.

PN37

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN38

MR DIXON: If the particular termination amounts to retrenchment within the definition of retrenchment in clause 8, certain rights and obligations may arise. Clause 8 specifically contemplates that alternative employment of one kind or another might be made available to a particular employee. And it provides a - the award then, by incorporation, provides a mechanism by which the Commission is empowered with the consent of the parties to readjust that arrangement if particular circumstances are satisfied.

PN39

It would be akin to a board of reference and a classification dispute as to whether a person does or does not come within a particular classification. And it matters not that the mechanism is within clause 8, which is the standard TCR approach, that the option is granted in the TCR clause or whether a different instrument read in conjunction with all incorporated into the clause provide that mechanism by which a particular dispute can be settled in those circumstances.

PN40

SENIOR DEPUTY PRESIDENT WATSON: And you say clause 8 doesn't specifically provide what will occur in the event of acceptable alternative employment having been provided.

PN41

MR DIXON: Within - clause 8 deals with certain circumstances with acceptable alternative employment but it does not deal with the eventuality of employment being offered, for example, with the new employer, as happened here. And where there is a dispute the parties agreed by way of this mechanism in clause 11 that the Commission may readjust that arrangement. Perhaps I could illustrate the point best by taking - - -

PN42

SENIOR DEPUTY PRESIDENT WATSON: The applications themselves are, in effect, applications to vary the agreement, is that a fair characterisation?

PN43

MR DIXON: It is to readjust the obligation in clause 8.5 of the agreement, a power which is available under section 170LW where there is a local dispute in the same way that provision would apply in the standard TCR clause if incorporated into a certified agreement.

PN44

JUSTICE GIUDICE: 170LW doesn't say anything about awards, does it?

PN45

MR DIXON: I beg your pardon, your Honour.

PN46

JUSTICE GIUDICE: 170LW doesn't say anything about awards.

PN47

MR DIXON: It doesn't, your Honour.

PN48

JUSTICE GIUDICE: So how can a dispute resolution provision over characterised in the award be referable to a power conferred by 170LW which applies to agreements?

PN49

MR DIXON: The starting point, your Honour, is this. We submit, with respect, that the provision in the award has been expressly incorporated into the certified agreement. So that our first argument is that by use of a specific mechanism clause 11.2 is part of the certified agreement. If I will need to take the Commission through the history of that. It is only if that argument fails that one then gets to the next step and then we are not asking the Commission to exercise powers under section 170LW but under the standard constitutional settlement of dispute or further settlement of dispute type argument.

PN50

JUSTICE GIUDICE: If I could just stay with for a moment the particular point I raised with you. I appreciate you hadn't concluded the answer but the answer seems to depend upon the incorporation of the relevant term of the award into the agreement.

PN51

MR DIXON: Yes, your Honour.

PN52

JUSTICE GIUDICE: And for that to rely on clause 1 of the agreement.

PN53

MR DIXON: And another provisions.

PN54

JUSTICE GIUDICE: yes.

PN55

MR DIXON: Well, at clause 1, when one looks at a number of the other provisions one will see that the same formula has been adopted, but principally clause 1.

PN56

JUSTICE GIUDICE: Yes. Clause 1, omitting the opening words, simply says:

PN57

... the provisions of the ANZ Group Award will continue to apply.

PN58

MR DIXON: Yes.

PN59

JUSTICE GIUDICE: And then refers to inconsistency. They are the words you rely upon for the submission that there is an incorporation.

PN60

MR DIXON: In the context of the process that was being adopted.

PN61

JUSTICE GIUDICE: Yes.

PN62

MR DIXON: And I will need to take the Commission to the authorities which, we respectfully submit, support quite strongly that the use of the words "shall apply or continue to apply" is one form of expressing incorporation and I will need to take the Bench to those cases and, also, to analyse the agreement as a whole to show how we get to that position

PN63

JUSTICE GIUDICE: Yes. Could I just take up another point while I have interrupted you. I think this is a point that Senior Deputy President Watson was also asking you about. If the relief were granted, the application were granted, would not a further issue arise as to the effectiveness of that relief in the face of the clear words of clause 8 of the agreement, a legal issue arise?

PN64

MR DIXON: Your Honour, it depends - - -

PN65

JUSTICE GIUDICE: Presumably, your answer is no.

PN66

SENIOR DEPUTY PRESIDENT WATSON: If I can add to that, it seems to me you have an agreement saying in the event of redundancy this shall apply and then you would have either a stand alone order or a varied award saying something different, in the event of suitable alternative employment no redundancy would apply.

PN67

MR DIXON: Your Honour, we would put that - your Honour, we would put that differently. We respectfully submit that, one, the award provides that for the termination provisions in clause 15 it would apply in the event of payments - in the event of termination and notice. If the termination amounts to a redundancy certain provisions in clause 8 would come into operation. Suitable alternative employment, having been found, the parties have agreed that - and for the moment may I leave aside where that agreement is to be found - but the parties have agreed that where other acceptable employment has been found the Commission has the power to vary the entitlement.

PN68

Now, it matters not, in our respectful submission, whether the agreement by which that entitlement can be varied arises from a direct - may I withdraw that. If the mechanism which is provided for expressly in clause 11.2 forms part of the certified agreement there is no difficultly because what the parties have said that the provisions in clause 8.5 will apply, but in the event of alternative, other acceptable employment, then the Commission - the ANZ has the right to apply to the Commission to vary the required payment.

PN69

A provision which cannot be said to be consistent with because on the first instance it is part of the very clause which gives the entitlement. If, however, it is not part of clause 8 or clause 11.2 is not part of the certified agreement one still has this situation, and I am not assuming no incorporation. The parties have made it very clear that the certified agreement and the award must be read in conjunction, standard type provisions recognised by the Commission and put into agreement.

PN70

What that means, in our respectful submission, when read in conjunction - and this is our alternative submission, of course - is that the parties have agreed upon a mechanism by which the entitlement in the certified agreement might be varied. Now, that - if it is read in conjunction with, those are not inconsistent because the certified agreement does not specifically address what might happen in the event of other alternative application - other suitable employment having been found. And I don't think that is the precise terminology.

PN71

But what the parties have agreed is that where there is a dispute about that there is a mechanism by which "the private arbitration" the Commission will be empowered to resolve a dispute about that. In our respectful submission, that could not be said to be inconsistent with the obligations under clause 8.5 because whether it is read as incorporated into or in conjunction with a mechanism has been provided whereby the Commission has, upon application, the right to vary as it will in accordance with its processes determine is appropriate in the particular circumstances of the particular case.

PN72

SENIOR DEPUTY PRESIDENT WATSON: Is the Commission able to vary an agreement in that manner? Isn't the Commission constrained under the provisions of section 170MD for the variation of agreements?

PN73

MR DIXON: Your Honour, it depends on whether that is a formal variation in the formal sense or whether, by way of the private agreement between the parties, they have accepted a process of adjusting their rights and obligations and have implicitly agreed to abide by the outcome, a matter which we respectfully submit is recognised by the High Court in the Gordonstown decision whereby it is not a formal arbitration in the formal sense. This approach is also on all fours with the Westpac decision which Deputy President Duncan applied the same approach, where the parties came - and I will take the Commission to that in due course.

PN74

SENIOR DEPUTY PRESIDENT WATSON: But didn't that involve a provision in the agreement rather than award or are you just saying 11.2 is in the agreement that .....

PN75

MR DIXON: It is in the agreement on the one hand. If it is not in the agreement a mechanism, read in conjunction with the agreement, permits precisely the same result.

PN76

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN77

MR DIXON: And it is not a formal variation because one has got to look at the character of what the parties have agreed to and that is a further settlement or preservation of the dispute that has been settled by the making of a consent award in the certified agreement, particularly in the case where, of course, they were made as part of this process that the parties were undergoing when they came to the Commission.

PN78

SENIOR DEPUTY PRESIDENT WATSON: What is the legal effect of an agreement not to apply a certified agreement or part thereof?

PN79

MR DIXON: That is a matter which the High Court seems to say is governed by the general law and not by the Act. But what is implicit in the parties agreeing to such a process is that they will abide by the outcome, a process which, of course, appears from a long line of authority to have been accepted as an acceptable means of further preserving the dispute. It would not amount to a breach of the certified agreement if the position was changed, but the outcome of the agreement between the parties might be regarded as a breach because they have agreed to that particular process.

PN80

I will take - I will try and highlight that, your Honour, by taking you to the particular provisions of the cases. May I- - -

[10.42am]

PN81

JUSTICE GIUDICE: Mr Dixon, just before you resume what you wanted to say, 8.1 only operates where there is no alternative employment available. The relief sought in relation to the situation in which an opportunity for employment with ING is not taken up, do you say that alternative employment in that situation is - well, it is probably a question of the construction of that phrase "alternative employment".

PN82

MR DIXON: Yes, your Honour.

PN83

JUSTICE GIUDICE: What do you say it means?

PN84

MR DIXON: It is certainly capable of referring to alternative employment within the ANZ in the first instance.

PN85

JUSTICE GIUDICE: Yes.

PN86

MR DIXON: The ANZ has not accepted liability in this case for the payment of redundancy payment but it remains to be asserted - if the FSU continues to assert that redundancy payments are to be made the position that the appellant has taken is that that dispute can be resolved by the matter being heard and determined by way of the mechanism, if the parties agree, and there would be no further issue about it.

PN87

JUSTICE GIUDICE: What is the position in relation to people who take up the ING offer?

PN88

MR DIXON: In relation to them, the union is also making a claim.

PN89

JUSTICE GIUDICE: The union claims they should benefit of these as well?

PN90

MR DIXON: That is really the nub of the issue, your Honour, because employees get the benefit of the transmission provisions in the agreement - - -

PN91

JUSTICE GIUDICE: Yes.

PN92

MR DIXON: - - - so that they get continuity of service. But the argument is that they have been made redundant and under clause 8.5 it amounts to a retrenchment even though there is a transmission of business.

PN93

JUSTICE GIUDICE: Yes.

PN94

MR DIXON: And as a result, their argument is, as we perceive it, that the obligations under clause 8.5 will apply.

PN95

JUSTICE GIUDICE: Yes.

PN96

MR DIXON: If, of course, those particular persons were to be made - employees were to be made redundant by ING within a relatively short period of time it is obvious that the transmission provisions, if they are regarded to apply to the new employer, result in double dipping.

PN97

JUSTICE GIUDICE: But perhaps I didn't ask my question clearly enough or specifically enough. Is it suggested that on transfer, to use a probably inappropriate term, from the bank to ING there would be an immediate entitlement to severance pay under these provisions?

PN98

MR DIXON: That is what the FSU contends, as we understand it.

PN99

JUSTICE GIUDICE: Yes.

PN100

MR DIXON: Where, as your Honour would have noticed, it was made clear that it is the same employment, same entitlements, etcetera.

PN101

JUSTICE GIUDICE: Yes.

PN102

MR DIXON: And in the traditional TCR approach that was always envisaged as a circumstance which would not attract the - - -

PN103

JUSTICE GIUDICE: Well, of course, in the TCR cases I think suitable alternative employment is the term used in a slightly different context to indicate employment other than with the employer. That is why I asked the question as to what alternative employment means in this provision.

PN104

MR DIXON: But it arises in two ways, though, your Honour, because in TCR the Commission said that it was not intended that any entitlements would arise in respect of a true transmission.

PN105

JUSTICE GIUDICE: Yes, that is true.

PN106

MR DIXON: And here we have got the true transmission, so that there is transmission. The formula in TCR and the way in which the awards are drafted, in my respectful submission, contemplated that when that happened the equivalent of clause 11.2 is to be found in the TCR provisions so the parties can come to the Commission or the parties would agree to come to the Commission for the Commission to vary the position.

PN107

JUSTICE GIUDICE: Yes.

PN108

MR DIXON: Now, the Commission, of course, may have done that through the arbitral role by inserting such a provision which might make our argument more difficult, but we don't need to attend to that where the parties have consensually arrived at that position. What has happened here is that, effectively through a technical process the parties have been deprived of the Commission exercising its decision as to whether it is appropriate in these circumstances for the 8.5 obligations to apply despite transmission, despite the fact that we must, in those circumstances - perhaps must is putting it too highly - almost certainly would amount to other acceptable employment or alternative - suitable alternative employment, whatever formulation one might apply to it.

PN109

And it is in that regard that I thought it would be helpful if I, as expeditiously as I could - - -

PN110

JUSTICE GIUDICE: Can I ask you another question about clause 8.1?

PN111

MR DIXON: Yes, your Honour.

PN112

JUSTICE GIUDICE: The provision relating to continuity of service, the transmission provision, that is - - -

PN113

MR DIXON: That could be found in the award.

PN114

JUSTICE GIUDICE: Yes, that is in the award not the agreement.

PN115

MR DIXON: That provision is at appeal book 2 page 171, clause 7.2(b).

PN116

JUSTICE GIUDICE: Yes. Does that have any operation in relation to the issue of when there is a termination of employment, where employment goes from one to the other?

PN117

MR DIXON: Yes, there is certainly an issue about that, your Honour.

PN118

JUSTICE GIUDICE: Yes.

PN119

MR DIXON: And it is for that reason that this dispute can be resolved by the Commission exercising its powers recognising all those issues to avoid the ongoing dispute and just settle the difference between the parties.

PN120

JUSTICE GIUDICE: Yes, I see that. Thank you.

PN121

MR DIXON: May I, as quickly as I can, just ask the Commission to look at the history. In volume 3 there is a statement from Mr Christopher Baker that deals in some detail with the history of the process that was being undertaken and the making of the particular award. The Commission will note in paragraph 2 that earlier there were three industrial instruments applicable, including one described as the ANZ Redeployment and Retrenchment Agreement 1995. Clause 8.1 of the then relevant ANZ Enterprise Agreement '96/97 contemplated consolidation of the various awards including consolidation of the redeployment and retrenchment agreement as appears in paragraph 3. In paragraph 5 he deposes to the fact that the process effectively, that was of consolidation, merged with negotiations for a new certified agreement:

PN122

ANZ proposed in respect of negotiations '97/98 was that there would be a new consolidated and expanded award, a new certified agreement, recognition of a new pay for performance remuneration system.

PN123

The position - - -

PN124

MR GARDNER: Excuse me, your Honour, I don't like to interrupt my learned friend but I want to raise a matter that relates to this material.

PN125

JUSTICE GIUDICE: Yes.

PN126

MR GARDNER: There was a - it was the subject of objection by the union as to material turning on the construction.

PN127

JUSTICE GIUDICE: Yes

PN128

MR GARDNER: Now, we accept that this material was marked and tendered but there certainly was an objection. I wouldn't want - I don't want to interrupt my learned friend telling the history because, obviously, that is of assistance to the Commission. We do make the observation that it was objected to below and that objection is persisted with now - - -

PN129

JUSTICE GIUDICE: Yes.

PN130

MR GARDNER: - - - to the extent that it might be relied upon in accordance with the usual formulation which I think the Commissioner - in fact, the Commissioner did make an observation about that very issue. So the extent that it might be relied upon or the attitude of the parties or their aspirations for what might be there, then we say it is inadmissible, it shouldn't be accepted. We said that below and we say that again here.

PN131

JUSTICE GIUDICE: Well, there might be a matter of substance there, Mr Gardner. The subjective intentions of the parties aren't relevant but - - -

PN132

MR GARDNER: Exactly.

PN133

JUSTICE GIUDICE: - - - common understandings might be.

PN134

MR GARDNER: Exactly.

PN135

JUSTICE GIUDICE: Yes. So it is a question of what it amounts to. Well, we note that and - - -

PN136

MR GARDNER: So we would raise the flag on that issue.

PN137

JUSTICE GIUDICE: Yes, thank you.

PN138

MR DIXON: I shall take the Commission to the authorities which we say entitle us to rely on the particular matters as we - - -

PN139

JUSTICE GIUDICE: Mr Gardner will get his wish then - well, not his wish perhaps.

PN140

MR DIXON: And some interesting recent comments about just what the factual matrix might mean. The position was that, following various discussions, the parties ended up in presenting to the Commission what we called the proposed consent award which was version 8 referred to in paragraph 7 of Mr Baker's statement. That document is to be found at 3.8(1) - I beg your pardon, 3.8(3) of the appeal book. May I go back to the previous pieces of correspondence to try and put this is context.

PN141

At 3.8(2) the Commission will see that the ANZ wrote to who was dealing with one aspect of the parties' consensual arrangements, namely the certified agreement, and Vice President Ross was dealing with the simplification of the award. On 3 July Deputy President Drake was advised that:

PN142

The parties had now finalised simplifying the group award as advised at our conference 9 June we have been undertaking this exercise in conjunction with the enterprise bargaining agreement. As a consequence, we are now agreed on two documents, the award and a certified agreement. It is agreed between the parties that any matters in the award that are not determined by the Commission to be allowable will form part of our certified agreement.

PN143

May I then go to the letter of 8 July to Vice President Ross where ANZ said:

PN144

Please find attached a copy of our draft simplified award. Thank you for hearing the matter at such short notice. You have now seen from correspondence to Deputy President Drake, given the simultaneous nature of the negotiations of our enterprise agreement, it is important that we understand exactly what is to be contained in our award, vis-a-vis our certified agreement prior to putting the enterprise agreement to staff.

PN145

If I then go to the next step in the process. Vice President Ross sent a memorandum to the parties on 9 July in connection with the proposed award, and that is found at annexure H which is page 431. Vice President Ross had obviously reviewed the agreement - the award as part of the award simplification process. He directed a number of comments at the draft simplified award, which is what we have called the proposed consent award in our submissions, as set out at page 431 and 432:

PN146

The parties should make separate application to set aside the following awards.

PN147

And then there are a number of specific matters that his Honour addressed. At page 432 in item 10 his Honour said:

PN148

Appendix A, redeployment and retrenchment, should go into certified agreement.

PN149

Now, may I - and his Honour notes that:

PN150

The above comments are somewhat conservative. It may be argued that a number of the clauses referred to are allowable, but I have taken the view that you want to minimise the risk of any variation to be made to your draft award.

PN151

So the process then was that everything that had been contained in the proposed consent award was split up. The matters that Vice President Ross indicated are allowable went into the consent award. The balance of the matters went into the new agreement, together with some other matters that the parties had separately agreed upon in their negotiations and those formed part of the certified agreement. The matter then came before his Honour, as one sees from page 433. The parties acted on Vice President Ross' direction or suggestion. A draft simplified award was provided on disk with the changes made.

PN152

The proceedings then came before Vice President Ross on 12 August 1998. These appear at page 434 through to 438. The award simplification process took place by a variation under section 113 by consent, as appears at about line 8 to 12 on 435. Then at page 436 his Honour said:

PN153

I am satisfied -

PN154

this is at line 16 to the following matters -

PN155

the applicant has made reasonable attempts to reach agreement -

PN156

etcetera:

PN157

Once varied in accordance with the application before me the award will only deal with allowable award matters as matters which are incidental -

PN158

etcetera:

PN159

The application is consistent with the criteria in item 51 -

PN160

and so on. And then his Honour at line 28 says:

PN161

I will not turn to deal with a number of related applications including the setting aside the number of arrangements including the ANZ Redeployment and Retrenchment Agreement.

PN162

And that his Honour - he sets aside those matters on his own motion at 437. At 438 is a later publication of the decision. The award, as made by consent, is then to be found at page 440. May I ask the Commission to go back to page 383.

PN163

SENIOR DEPUTY PRESIDENT WATSON: Is it reasonable to say that the present dilemma arose because in the draft original award, which you are now referring to, at 391 clause 3.4(1) which is the present 11.2 of the award, really has nothing to do with transmission of business. It should have been included as a part of the redundancy/retrenchment provisions and gone to the agreement with the rest of the retrenchment/redundancy provisions.

PN164

MR DIXON: It would have - I probably wouldn't be here - - -

PN165

JUSTICE GIUDICE: We wouldn't be here.

PN166

MR DIXON: - - - if that had happened, your Honour. The only reason I hesitated was to say that I think your Honour suggested that 3.4 may have had nothing to do with redundancy - - -

PN167

SENIOR DEPUTY PRESIDENT WATSON: The transmission of business.

PN168

MR DIXON: The transmission of business.

PN169

SENIOR DEPUTY PRESIDENT WATSON: Which is a provision ..... that it appears under.

PN170

MR DIXON: 3.4, as it appears at 391, was - is pretty much the TCR provision, which one will find in the earlier award as well. It, clearly, had operation in conjunction with a redundancy type argument. In this proposed consent award at 418 one finds - in the same document we found the redeployment and retrenchment as an appendix A. So at 418 we have got what is now duplicated into clause 8 of the certified agreement and 3.4, at page 391, makes its way into two different places in the consent award that is made on 12 August.

PN171

But of course - so when the parties presented themselves to the Commission with their proposed consent award we had in one document provisions which were clearly intended to operate as one, if the particular circumstances arose. The parties went through the process of splitting their agreement into two instruments and a technical point is now raised that they are deprived of the rights which they clearly contemplated they had when they started the process. That must be viewed in the context of the test as to whether it could reasonably be said that these parties, it was their comment intention that the rights which existed in 3.4(1) under any circumstances in the agreement are removed because of the process that they adopted.

PN172

JUSTICE GIUDICE: Is there any evidence indicating that the issue of entitlement to severance pay was an issue between the parties at this time? In other words, was there any issue between them as to whether the pre-existing award provisions should be altered?

PN173

MR DIXON: Your Honour, there doesn't seem to be any material which would suggest that the parties contemplated through the process a change of what existed when they presented the consent award, the proposed consent award. It was - was your Honour's question directed to that or to a wider proposition?

PN174

JUSTICE GIUDICE: Well, you made a submission that the simplification process you have just described led to a change in the - well, on the union's view, led to a change in the pre-existing entitlements. My question was really directed to whether there was any issue that there should be a change.

PN175

MR DIXON: No, no, and that is what I understood your Honour to be saying.

PN176

JUSTICE GIUDICE: Yes.

PN177

MR DIXON: And there are some cases, as your Honour would be aware, where Courts and tribunals have determined that and that is absent here, in our respectful submission. We have provided a bundle of cases which I hand up a volume to the Bench. I am reasonably confident that your Honours and Commissioner are familiar with most all the cases that we have referred to here. On the particular topic which I have just been addressing, might I ask your Honours, Commissioner, to go to tab 22.

PN178

SENIOR DEPUTY PRESIDENT WATSON: I am not familiar with R v Smith and Ors, Mr Dixon, you might need to take me to that.

PN179

JUSTICE GIUDICE: Smith's case?

PN180

MR DIXON: Although we tried through a typographical error to make it more recent it should be 1873 not 1973, and I apologise for that. In Short v Hercus the question arose to the degree to which the Commission would look, or the Court would look at the history provisions in the interpretation of an instrument. In my respectful submission, the most useful judgment is that of Burchett J starting at 515 of volume 40 FCR and at 517 his Honour sets out the question of whether it is legitimate for the purpose of construing a clause in an award to look at what was called the history of the provision. I invite the Commission to stop me if I am going over old ground. His Honour refers to a number of cases where different views have been taken about that and then at the bottom of 517 he says:

PN181

No doubt, one must read an expression in this context.

PN182

At the top of page 518 there are basically rules of common sense. The next paragraph:

PN183

The context of an expression may thus be more than the words that are immediate neighbours. Context may extend to the entire document of which it is part or other documents with which there is an association.

PN184

The rest of that passage, in rather attractive language that I would not be able to emulate, his Honour says:

PN185

When an expression was transplanted it may have brought with it some of the soil in which it once grew retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significant standing and bearing in alien ground.

PN186

That certainly is what is being tried here, not by us by the approach that the union is taking. Then in the next passage his Honour said:

PN187

Where there is seen to be a difficulty the Court can often go the history of the matter. A number of illustrations may be found. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the Court then forbidden to look past the document itself that is before it. The respondent says that the instant award is clear. We must shut our eyes to what went before.

PN188

Further down:

PN189

Where the circumstances allow the Court to conclude that a clause in an award is the produce of a history out of which it grew to be adopted in its present form only a kind of wilful judicial blindness could lead the Court to deny itself in the light of that history to prefer it to be appear unaided at some obscurity in the language.

PN190

And then his Honour said at the bottom:

PN191

But even if the language read alone appeared illicitly clear the tendency of recent decisions -

PN192

and this is the other answer to the argument put -

PN193

would seem to require the Court to look at the full context. Only then will some of the new answers of the language be perceived.

PN194

And there is reference to Gadalfa in that context. Then halfway down 519:

PN195

The fact that the words are frequently susceptible -

PN196

I beg your pardon:

PN197

The fact is that words are frequently susceptible to more than one meaning ..... that the ambiguity may be borne with the readers clarity of thought -

PN198

and so on. And there are also passages at 523 where his Honour Drummond J agreed with Burchett J that the redundancy:

PN199

Even though the redundancy clause is free of ambiguity recourse may be had to other matters.

[11.10am]

PN200

The line of approach adopted there was commented upon and agreed with my Marshall J in the decision of Australian Municipal Administrative Clerical and Services Union v The Treasurer ATIR 345. I would simply draw the Commissions' attention to the relevant passages starting at about point 6 on 346 through to 347. Then in Pickard v John Heine the relevant passages in Volume 35 CLR page 1 are to be found in an off-quoted passage from Isaacs J judgment starting at about point 6 on page 9 through to the end of the paragraph, the first paragraph on page 10.

PN201

JUSTICE GIUDICE: What about Isaacs J observation that:

PN202

As the interpretation I favour was disputed at the bar it must be because there is ambiguity.

PN203

MR DIXON: That is the provision which is often quoted as - and your Honour will see that that is commented upon in Short v Hercus. It seems a great reliance on the bar one had but it is illustrated, in our respectful submission, of the fact that two versions can be formulated from a careful reading of the document.

PN204

JUSTICE GIUDICE: Two reasonable versions.

PN205

MR DIXON: Two reasonable, yes. Burchett J comments upon that in the other one.

PN206

JUSTICE GIUDICE: Yes.

PN207

MR DIXON: But the passage at page 10 is quite useful where his Honour said:

PN208

I am thereby able to place myself in the position of the arbitration court. Just as a Court construing a will endeavours to place itself in the testators armchair in order to understand what he said, so I endeavour to place myself notionally amid the surroundings of the arbitration court.

PN209

Notionally here, if one puts one - - -

PN210

JUSTICE GIUDICE: But here it was the parties, wasn't it?

PN211

MR DIXON: That is what I was about to indicate.

PN212

JUSTICE GIUDICE: Yes.

PN213

MR DIXON: If one looks at the testator or at what the parties intended then it is difficult to evince a common intention that this process denied them the rights which they clearly brought to the Commission for incorporation in industrial instruments of one kind or another. The decision in Barlow v Qantas Airways, which is at tab 25, goes even further where his Honour the then Chief Justice of the Industrial Relations Court, Wilcox J, read a provision in the agreement in one form and said that:

PN214

If he read that agreement on its face he would come to a view. It was only when the transcript of proceedings as to what occurred -

PN215

and this picks up what I think your Honour, the President, raised with me earlier -

PN216

revealed that there had been no issue in the making of the changes in the new instrument before Bolton J in the Commission, but it was apparent that the parties never intended their new draft to change the position which had existed before and by access to the transcript it was possible to re-write, in a sense, or re-word the agreement.

PN217

The passages - the relevant passages in his Honour's judgment which was taken on appeal and not overturned on appeal, are at page 207 and following, I am starting reading at the bottom of 206. And his Honour clearly looked at the history, including the transcript. Reference was not made in that case to Short v Hercus but had Short v Hercus been applied it would have been our respectful submission added to his Honour's conclusion. So that is a further illustration of quite extensive examination, not only of the history of the award but actually of the award making process and what the parties intended, as to whether there was any change intended or not.

PN218

Lastly, in relation to other Australian cases, might I hand up an additional authority, Western Newspapers v Warren, reported at Volume 56 IR 340. Moore J at 351 refers to Short v Hercus. This involved difficulties interpreting particular phrases in later awards where there was a long history in the newspaper industry of earlier words and incorporation. At the bottom of 356 to the top of 357 there are particular passages which we would invite the Commission to bear in mind. His Honour at 357 also indicates that:

PN219

The authority support the proposition that attempt should be made to give effect to every part of the document and not to discolour any words.

PN220

A matter which I will return to. In a recent, fairly recent House of Lords decision, Investors Compensation Scheme v West Bromwick Building Society (1998) 1 AER there is an interesting and helpful analysis by the House of Lords and in particular Lord Hoffman at 114 to 115 as to what the full scope and effect of context means following Prynn v Simmonds and cases like that. At page 114 at paragraph (g) his Lordship starts to analyse or summarise the scope of materials that in construing contracts, which is most appropriate in the present circumstances, one might look at and it is said:

PN221

Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

PN222

And his Honour - his Lordship elaborates on that. But if one applies that test here it is clear that there was never any intention to create inconsistency which is now being argued against the ANZ by this process.

PN223

JUSTICE GIUDICE: Of what particular provisions do you say we should use these authorities to construe? I understand the argument on a general level that it was never intended that the situation contended for by the FSU should arise, but where are the particular provisions, the words that we should pay regard to?

PN224

MR DIXON: Combined with what I am about to take the Commission to in relation to the incorporation point - - -

PN225

JUSTICE GIUDICE: Yes.

PN226

MR DIXON: - - - it is relevant to incorporation and it is relevant to the argument about inconsistency where, even though one - we were not to conclude that clause 11.2 is expressly incorporated into clause 8 in the certified agreement, when read in conjunction with they supplement and are not inconsistent and - - -

PN227

JUSTICE GIUDICE: But both of those are relevant to clause 1, the issue of whether there has been incorporation, whether clause 1 should be read to be a specific incorporation and clause - and the second point in clause 1 as to whether there should be construed to be an inconsistency between the two.

PN228

MR DIXON: Although your Honour will see, as I will come to in a moment, there is clause 3 is a separate to read in conjunction provision.

PN229

JUSTICE GIUDICE: Yes.

PN230

MR DIXON: Yes. Now, that brings me to the concept of incorporation and, as we outlined in paragraph 11 of our submissions, there is no magical formula or specific words that need to be used to arrive at incorporation. The reference to Smith should be 1873. And in Family Court of Australia, as the Commission will recall, comment was made, and I will come back to it later, about the meaning of in conjunction with. We contend that the parties here went to some length in ensuring incorporation and no inconsistency.

PN231

Two specific means are adopted to achieve that result. The first is clause 1 and then the particular wording in clause 1 by the use of the words "shall continue to apply". Those are significant words which have been interpreted by the courts as a means of incorporation. The decisions in that regard - our submissions in support of our contentions on incorporation then continue through from paragraph 15 through to 20. And I know that they have now been read but I won't repeat those, but they are supported, in our respectful submission, by the decisions referred to in paragraph 20.

PN232

May I, in that regard, ask the Commission to go to those decisions, the first being Seymour v Stawell Timber Industries 39 IR 289 at tab 4 of the bundle. This was a decision in the Federal Court concerning whether there was incorporation into a Federal award State provisions in relation to apprentices. At page 289 the Commission will see that Northrop J, who ultimately agrees with Gray J but Keely J took a different view, says that:

PN233

The substantial question raised in these proceedings is whether part 3 of clause (e)(35) of the Carpenters and Joiners Award 1967 imposes an obligation upon the respondent to pay to its apprentices the rates of pay prescribed by the award.

PN234

And the provision said:

PN235

Except where inconsistent with this division the regulations of the Apprenticeship Commission of Victoria shall apply in apprentices in that State. The question is, by use of that wording "shall apply" was it simply regarded as recognising that those provisions will apply by operation of State law or were they embodied into the award by the parties or the Commission and, therefore, were enforceable under the award.

PN236

And the Court concluded that it was the latter case by - and that the term "shall apply" was sufficient, read with the way in which the parties went about things, to expressly incorporate the State law into the Federal award and, therefore, was enforceable under the Federal award.

PN237

SENIOR DEPUTY PRESIDENT WATSON: Mr Dixon, I am a little puzzled. You characterised the two issues, incorporation and then inconsistency. Don't we get down simply to inconsistency because clause 1 and the phrase "will continue to apply" that you are relying on is then subject to the provision, however, in the event of inconsistency, the provision of the agreement will prevail? So one still needs to address inconsistency, even in the event of incorporation.

PN238

MR DIXON: Yes, your Honour.

PN239

SENIOR DEPUTY PRESIDENT WATSON: So it is really only an issue of inconsistency, is it not?

PN240

MR DIXON: The issue does arise differently, though.

PN241

SENIOR DEPUTY PRESIDENT WATSON: If the provision is incorporated then the powers that are available are the powers available under section 170LW. If the provision is not incorporated, and I am leaving inconsistency aside, then it is necessary to look at whether the powers are available under the constitutional conciliation head. We recognise that if it were to be concluded in either event that there is an inconsistency there is a difficulty that we say these provisions are not inconsistent, they complement each other and provide a mechanism for dealing with the particular situation, whether read incorporated or in conjunction.

PN242

SENIOR DEPUTY PRESIDENT WATSON: Yes. The Commission will note Northrop Js approach at page 290 and he said at about point 3:

PN243

As a general rule the draftsman of the award has used the verb "apply" in the sense of bringing a law into contact with facts to put into practical operation. The draftsman has used the words "apply" to make the award binding upon employers.

PN244

And then he refers to Gray Js decision to which I will come in a moment:

PN245

The draftsman in his use of the verb "apply" in part 3 has been consistent with this general use of the word.

PN246

And we will demonstrate that that is so in the present case. Further down in that paragraph:

PN247

The draftsman has used the word "apply" in the sense of bringing the regulations to the State authorities should it bear as part of the award.

PN248

His Honour Gray Js decision - I should draw attention to Keely Js decision at 294 and 295 and 6 where his Honour comes to a different conclusion and, therefore, is, in effect, in dissent. He refers and distinguishes the case of McManus. I will simply make a copy of that decision available to the Full Bench because it might be of assistance. I don't need, I believe, to specifically take the Commission to the provisions, but I make a copy available because it features in this judgment.

PN249

JUSTICE GIUDICE: Thank you.

PN250

MR DIXON: Might I then move on to Gray Js analysis which one finds at 304. It doesn't start there but his Honour makes comment about the Court needing to strive to give meaning to the words in a document, this is at about point 6. At 306 in the paragraph at point 3 his Honour makes reference to John Heine v Pickard and also to McManus, but I move on to 307 and there his Honour refers back to what Smithers J said in McManus at 380 where his Honour said there was a presumption about a third way down the page at 307. Gray J then said:

PN251

With all respect to his Honour, I have serious doubts whether such a presumption exists. In my view, the question of construction should be resolved upon the terms of the award in each case. Looking at the instrument as a whole but without any predisposition as to its effect. If this approach is taken in the present case there are two factors which weigh most heavily. The first is that the word "apply" is used. In a number of other clauses in the award in circumstances which make it clear that what is being applied is being given full force and effect.

PN252

The concept that I took the Commission to earlier. A little further down at about point 6 his Honour said:

PN253

Part of clause (e)(16)(b) provides that this sub-clause shall not apply.

PN254

So that is a separate category that his Honour pays attention to showing that the use of that formulation or a variation of that formulation leads to the same result. And then he says:

PN255

It is true that there are other provisions in the award which do incorporate by reference to the provisions of the Building Trades Construction Award and certain provisions of State law and which use more specific wording than the word "apply" to accomplish this. In their context, however, these provisions are not surprising. They do not detract from the construction of the word "apply" in clause (e)(35) point 3.

PN256

And then his Honour says:

PN257

The second important factor is that when the framers of the award did seek specifically to exclude the operation of the award in a particular state they did so with clarity.

PN258

And at 308 through to 309 his Honour makes reference to looking at other materials for the purposes of construing the award. Now, we have sought to illustrate that - I am sorry, just before I do that, may I ask the Commission to also have regard for a decision in Blackadder v Ramsey which is at tab 6 where at page 16 Madgwick J was asked to consider whether particular provisions in the Annual Holidays Act had been incorporated into an AWA by use of the terminology - this appears at about point 9 on the page there, "See Annual Holidays Act 1944". His Honour said that that did not, in his view, amount to incorporation and he distinguished that formulation, at the top of page 17, from what Gray J had done in Seymour's case, but he does not appear to disagree with the approach taken in Seymour's case.

PN259

JUSTICE GIUDICE: One of the consequences, I suppose, of incorporation is that the obligations under the primary instrument become enforceable under the instrument into which they are incorporated.

PN260

MR DIXON: Yes, your Honour.

PN261

JUSTICE GIUDICE: Would it follow, then, that any breach of the award, except in relation to inconsistent provisions, would also be a breach of the agreement?

PN262

MR DIXON: It would very much depend on the nature of what is incorporated, I think, your Honour.

PN263

JUSTICE GIUDICE: Well, take a simple clause in posing an obligation in relation to some condition of employment, be it sick leave or annual leave or something else, if the words in clause 1 incorporate words of incorporation would it follow that for each of those stipulations in the award would be breaches of .....

PN264

MR DIXON: It may well be the case that - - -

PN265

JUSTICE GIUDICE: It would be an unlikely result, wouldn't it, whether one puts it as a matter of object of intention or otherwise.

PN266

MR DIXON: I wonder if I may just return to that in a minute - - -

PN267

JUSTICE GIUDICE: Yes.

PN268

MR DIXON: - - - because I think that the difficulty that your Honour refers to became apparent in some of the earlier cases that if it is incorporated one can't vary the award because are you then varying - and the Commission in a decision which your Honour was involved in, which I will take you back to in a moment, considered that. I think the real issue must be as to what is incorporated. If there was a provision - if there were identical provisions, for example, then the question of inconsistency might apply. The certified agreement - - -

PN269

JUSTICE GIUDICE: Yes, I follow that, yes.

PN270

MR DIXON: The certified agreement being - if - - -

PN271

JUSTICE GIUDICE: Something like salaries which might be dealt with, I haven't looked, but might be dealt with in both instances, yes.

PN272

MR DIXON: Here they are dealt with in both the - the award provides the safety net, the certified agreement takes the same classification adds in a percentage and does that. So but, of course, we are not in that territory at all where - - -

PN273

JUSTICE GIUDICE: No, but the words of clause 1 of the agreement are general.

PN274

MR DIXON: Yes.

PN275

JUSTICE GIUDICE: So we would have to consider the consequences of the - if your argument about incorporation is correct what the consequences to that are.

PN276

MR DIXON: Yes.

PN277

JUSTICE GIUDICE: Yes. There is one way of testing whether that is likely to be a proper construction.

PN278

MR DIXON: I accept that, your Honour. But one - there would be no bar to two instruments having - I am sorry. If two instruments have identical terms then I think the certified agreement - that would probably give rise to an inconsistency, although one doesn't use inconsistency here in the terms of section 109 of the constitution for reasons that we will seek to elaborate in a moment. One would then prosecute probably only under the certified agreement.

PN279

So it is not clear, your Honour, when you would have both obligations applying, giving rise to a double breach, as it were, if that is a matter that is causing your Honour some concern.

PN280

JUSTICE GIUDICE: Yes. Well, it is just raised by the issue in the case you took us to a moment ago, Seymour, the apprenticeship provisions or the other provisions applied then, presumably, the point of the case was it was a breach of the award.

PN281

MR DIXON: It would be a breach of the award.

PN282

JUSTICE GIUDICE: Yes.

PN283

MR DIXON: But whether - that case, of course, as to whether there had been double breach the Federal instrument might override the State law in that particular situation.

PN284

JUSTICE GIUDICE: Yes.

PN285

MR DIXON: But I think your Honour's concerns in relation to dual breach would be overcome, that if the obligations are the same then it would only be the certified agreement because of provisions giving it superiority that would apply.

PN286

JUSTICE GIUDICE: Yes. It is not only the question of dual breach. The penalties are dramatically different. I use the word "dramatically" but probably shouldn't use that as ...... like that. But the penalties under 178 for breach of an award are significantly less than the penalties for breach of a certified agreement.

PN287

MR DIXON: But that would be at the parties' costs. If they have agreed to insert, for the time being in their certified agreement, provisions which they are obliged, they have got to carry the consequence. One has got to look at it also, with respect, your Honour, in the context that the award, of course, will live on unless cancelled, providing a safety net purpose whereas the parties can subsequently change the certified agreement and not incorporate any particular provisions.

PN288

But it would not be inconsistent for the parties to have a certified agreement which incorporates a number of particular award clauses and adds to them in the certified agreement.

PN289

JUSTICE GIUDICE: Yes.

PN290

MR DIXON: What we - - -

PN291

JUSTICE GIUDICE: Mr Dixon, do you have any idea, assuming you don't have any other interruptions which is an entirely dangerous assumption, how much longer you would be?

PN292

MR DIXON: I am probably going to be another hour.

PN293

JUSTICE GIUDICE: Yes.

PN294

MR DIXON: I will try and I might be just a little more, your Honour.

PN295

JUSTICE GIUDICE: Yes. Well, I am not asking you to restrict your submission. But I think we will take a break for 5 or 10 minutes.

SHORT ADJOURNMENT [11.41am]

RESUMED [11.52am]

PN296

JUSTICE GIUDICE: Yes, Mr Dixon.

PN297

MR DIXON: Your Honour, what we have done is to analyse the agreement to highlight the use of the word "and formula will apply and continue to apply and shall not apply" and produced it in a table in support of our contentions that this case comes within the formulation used in Seymour's case and that that case is sufficient authority. May I just very briefly seek to illustrate some points. One will note, for example, in clause 1 at page 213 "will continue to apply" and then in 4.1 similar formulation is used as to what will apply, obviously intended to indicate what is binding on the parties.

PN298

Similar language is used at the top of page 214 in relation to 4.2. Clause - the others - clause 6.2 is a similar formulation to that in Seymour's case. But may I move on to clause 8. Clause 8 itself adopts a similar language. It says:

PN299

This section applies to employees of ANZ -

PN300

etcetera, and then it sets out the provision. So very similar language. And the parties obviously intended that these would be provisions that would be binding upon or be operative in relation to those particular employees within the particular categories. And where it is not intended that something is to apply, as highlighted in the second column, express provision has been made in that regard as well. May I just go back briefly to a matter which your Honour, the President, raised with me about various instruments being incorporated and applying.

PN301

The decision I had in mind is an earlier one which - the Family Court decision which is at tab 3 - it was one of your Honour's predecessors on the bench - which examined the concept of incorporating a large number of earlier awards into a later award. And that would not, it seem - the consequences of that would not prevent incorporation. At page 3 one will see that the - well, from page 2 there was an award rationalisation process and the dispute concerned the operation of certain terms of the principal agreement and the provisions of division 3A of the Act as it then was. At page 3 at about point 5 and then through to point 7:

PN302

Thus this clause has the effect of incorporating by reference all the terms of the listed awards which are consistent with the principal agreement into the agreement. It goes further and incorporates all variations to the awards.

PN303

Then at the bottom of page 3 it said:

PN304

We would add that the terms of the awards do not become terms of the principal agreement if the principal agreement provided that the award were to be read in conjunction with -

PN305

so that there is a distinction drawn.

PN306

JUSTICE GIUDICE: Sorry, where is that, Mr Dixon?

PN307

MR DIXON: Bottom of page 3 of - - -

PN308

JUSTICE GIUDICE: I see, yes.

PN309

MR DIXON: So the footnoting makes that complicated, your Honour.

PN310

JUSTICE GIUDICE: No, it is just the - yes, the format has been - - -

PN311

MR DIXON: Yes, I apologise for that.

PN312

SENIOR DEPUTY PRESIDENT WATSON: It is no longer a footnote.

PN313

JUSTICE GIUDICE: It is, in fact, not a footnote, is it?

PN314

MR DIXON: That is right, it is just a note.

PN315

JUSTICE GIUDICE: Yes.

PN316

MR DIXON: Thank you. And it had certain consequences but it was not a process which is frowned upon where you could actually incorporate provisions of that kind. And one might well find that happening, if the Commission pleases, where parties are seeking to preserve all entitlements and to prevent, for example, the award provisions not applying other than by way of express inconsistency and this, of course, is such a case.

PN317

JUSTICE GIUDICE: In that case the words were "shall form part of this agreement".

PN318

MR DIXON: There was a very much clearer - the formulation is different, your Honour.

PN319

JUSTICE GIUDICE: Yes.

PN320

MR DIXON: I am not suggesting that that - I was picking up on the other point that your Honour made.

PN321

JUSTICE GIUDICE: Yes.

PN322

MR DIXON: It is at about point 3 on page 3 that the formulation appeared. May I illustrate or seek to illustrate some of the other difficulties which arise from the union's approach. It effectively requires - if all one was to do here was to use the words "in conjunction with" one, effectively, must put it to one side and not give meaning to the very clear words and formulation used in clause 1. But as we set out in paragraph 23 of our submissions, the nature of the wording of the provisions support the contention that they should be read as one instrument.

PN323

The severance pay which ANZ may be required to pay in the event of retrenchment is provided for in clause 3 that:

PN324

The parties agree to the Commission upon application varying that requirement. In the absence of such incorporation clause 11.2 of the award will be referring to the required severance pay which is nowhere provided for in the award.

PN325

A matter which seems to have caused the Commission at first instance some concern but - - -

PN326

JUSTICE GIUDICE: Do we have the terms of the pre-existing award?

PN327

MR DIXON: Yes, I - it is at - I was going to - it starts at 541, your Honour.

PN328

JUSTICE GIUDICE: Volume 3, is it?

PN329

MR DIXON: That is volume 3. Now, it is a document which cried out for award simplification but I think - - -

PN330

JUSTICE GIUDICE: A lot of very eminent, important people had a hand in drafting this award.

PN331

MR DIXON: It is just a change of times, your Honour. At 588 there are - if your Honour is looking at particular clauses, at 588 one would find the severance pay clause which in the award incorporated a severance pay obligation. The suitable alternative employment provision, which survives in the later award, is found in clause 39.3.3 on that page.

PN332

JUSTICE GIUDICE: Yes. The last part of clause 39.3.3 is the clause in question here in the award. So it was during the drafting process separated from the severance pay provision.

PN333

MR DIXON: It is a little more complex than that, your Honour - - -

PN334

JUSTICE GIUDICE: Yes.

PN335

MR DIXON: - - - in the sense that one had the severance pay provisions, which are here in 39.3.3, effectively, a TCR standard.

PN336

JUSTICE GIUDICE: Yes.

PN337

MR DIXON: The parties had separately agreed to a higher standard - - -

PN338

JUSTICE GIUDICE: And more generous.

PN339

MR DIXON: - - - which was in the redeployment agreement, which is one of the agreements that was cancelled by Vice President Ross.

PN340

JUSTICE GIUDICE: Yes.

PN341

MR DIXON: So those provisions, together with these provisions, were translated into a proposed consent award, the most relevant ones. Clause 39.3.7, transmission of business provision at 589 was also in the original award and that makes its way into clause 11 of the award as finally made.

PN342

JUSTICE GIUDICE: Is that in the same terms, 39.3.7? Is that in the same terms - - -

PN343

MR DIXON: Yes, I think so, your Honour.

PN344

JUSTICE GIUDICE: - - - as clause 11.1, is it?

PN345

MR DIXON: I am reasonably confident that that is - apart from - - -

PN346

JUSTICE GIUDICE: I am sorry, it is not 11.1 it is 7.2.

PN347

MR DIXON: It is at 7.2 in page 171.

PN348

JUSTICE GIUDICE: Yes.

PN349

MR DIXON: Apart from some terminology like staff member as opposed to employee - - -

PN350

JUSTICE GIUDICE: Yes.

PN351

MR DIXON: - - - they are the same. This was the 1991 award which was varied by way of the orders that Vice President Ross made. When this was made in 1991 there wasn't a separate certified agreement, there was, I am instructed, an unregistered agreement that later became registered and then finally cancelled.

PN352

JUSTICE GIUDICE: Do the other provisions of clause 39 survive either in the agreement or in the award?

PN353

MR DIXON: Such as employees leave during notice? Your Honour, there is - - -

PN354

JUSTICE GIUDICE: Perhaps you could give us a note about that in due course. It is just it may be important in dealing with your argument about the context in which all of this occurred.

PN355

MR DIXON: If your Honour pleases. On the question of the operation of these two provisions, we say that if there is no incorporation and one was to read them in conjunction, as we say in paragraph 24, then reading them in conjunction leads to the same result because they are not inconsistent. May I just indicate to the Commission how Commissioner Eames dealt with this matter at the first instance. At appeal book 1 the Commission referred to the two aspects of the application and notes in 125 that there is no severance pay clause contained in the award and distinguishes it from the Westpac agreement, or seeks to do so and I will return to that later. Then in 128 the Commissioner said:

PN356

Whilst the timing of the making of both the award and the agreement indicates both were made at the same time, I accept the submission of Ms Maloney that they are not cognate instruments as such and must be read in their own terms.

PN357

It appears that the Commission did not even go so far as to read the two in conjunction with, irrespective an incorporation argument which was squarely put. At the top of page 21 in 131, paragraph 131, the Commission said:

PN358

In my view, once that was done, having regard to Gadalfa, one must look at each document and read them as individual instruments unless there is contained within each or either instrument a cross reference to the other. In the relevant sections, transmission of business, severance pay, where alternative employment was obtained and both redeployment and transmission, there was not.

PN359

But that is not, in our respectful submission, an accurate statement. It ignores clause 1 and it even ignores the combination of clause 11.2 read in conjunction with other alternative employment which may arise in a number of ways under clause 8 of the agreement, other alternative employment within ANZ or other alternative employment outside of ANZ. I have effectively dealt with most of our submissions which appear under the heading "No Inconsistency" - - -

PN360

JUSTICE GIUDICE: You rely on clause 3 of the agreement in relation to this argument?

PN361

MR DIXON: Yes.

PN362

JUSTICE GIUDICE: Yes.

PN363

MR DIXON: Whatever one might say about what the parties did, they went to great lengths to try and ensure that the two instruments fully complemented each other at the end of the day and that apart from the inconsistency which the statute expressly required and they could not overcome, they wanted the award to operate to its fullest extent and to do so through the industrial instrument. May I simply add this to our submissions in relation to inconsistency. We respectfully submit that one ought not to approach this on the basis of the statutory tests which the constitution require for inconsistency under section 109.

PN364

We highlight the fact that the awards and certified agreements are designed to work together to complement each other. The process in the Act encourages that so that one would not deal with this as a superior instrument in all respects using covering the field type arguments in the wider context. They should be read as instruments which are in many instances only capable of full meaning when read together. In some respects it is more akin to interpreting State legislation which might operate independently and it is only where there is a very clear intention or direct conflict that one would say that a later State instrument or a different State legislative scheme would oust the earlier one.

PN365

JUSTICE GIUDICE: So that is the only way in which one can give meaning to 11.2 of the award, in your submission?

PN366

MR DIXON: Yes.

PN367

JUSTICE GIUDICE: Otherwise it doesn't - - -

PN368

MR DIXON: When it talks about the required severance pay, for one thing, your Honour, it is referring to the required severance pay dealt with in 8.

PN369

JUSTICE GIUDICE: Yes.

PN370

MR DIXON: When there is reference to alternative other employment that is a reference to the various kinds of alternative employment, either within ANZ or outside of ANZ which is contemplated in clause 8 of the certified agreement.

PN371

SENIOR DEPUTY PRESIDENT WATSON: I am sorry, so you are saying in clause 8.1, alternative employment means within or outside of ANZ?

PN372

MR DIXON: It is capable of that and so that one - if one then goes - - -

PN373

SENIOR DEPUTY PRESIDENT WATSON: Well, if that were the interpretation, 11.2 would be nonsensical, would it not, because it provides for the ANZ to apply in circumstances where there isn't a redundancy to vary the required severance pay.

PN374

MR DIXON: Your Honour, it might - were there a question of whether it is acceptable in a particular set of circumstances - in 8.1 where there is reference to alternative employment is not available and - - -

PN375

SENIOR DEPUTY PRESIDENT WATSON: Well, 8.1 says, if you take acceptable out, any employment.

PN376

MR DIXON: Yes.

PN377

SENIOR DEPUTY PRESIDENT WATSON: The ANZ meets that requirement. Is not obliged to apply the severance pay unless there are any other requirements. So 11.2 would be totally nonsensical in that context, wouldn't it, or would the ANZ then vary in circumstances where it were acceptable employment to vary the severance pay entitlements, presumably to apply some severance pay entitlements?

PN378

MR DIXON: Your Honour, the question of - for example, in clause 8.2.3 - - -

PN379

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN380

MR DIXON: - - - starts:

PN381

...will not be retrenched until all reasonable alternatives for continuing employment have been explored and there is no suitable alternative employment available.

PN382

Or if there is a dispute as to the availability of suitable alternative employment that - it may - 8.2.4 contemplates, for example, redeployment within the ANZ group which might bring the matter within a claim that there is suitable alternative employment available. And if there is a dispute as to whether that is suitable alternative employment refused 11.2 may have some work to do.

PN383

SENIOR DEPUTY PRESIDENT WATSON: But it is not retrenchment where alternative employment, suitable or otherwise, is available, is it?

PN384

MR DIXON: It is not drafted in the clearest of ways.

PN385

SENIOR DEPUTY PRESIDENT WATSON: I think there might be common agreement on that.

PN386

MR DIXON: But one sees that the provisions are designed to operate together. There is no, in my respectful submission, there is no doubt that 11.2 is designed to provide the mechanism by which a dispute under clause 8, in one form or another, about suitable or other acceptable employment may be determined. May I hand up two decisions which deal with the way in which State legislation ought to be ..... I know it is not directly in point but the Commission might find some assistance in that given the history of the matter here.

PN387

The two cases I wish to draw to your attention is, firstly, Butler v Attorney-General for the State of Victoria [1961] HCA 32; 106 CLR 268 and the other one is Saraswati, S-a-r-a-s-w-a-t-i v R [1991] HCA 21; 100 ALR 193 at 204. The relevant passages are at 276 and 277 in Butler. Those were dissenting judgments of Fullagar and Windeyer JJ. But as the Commission will see, in the decision of Saraswati at 204, Gaudron J makes reference to the judgment and says that:

PN388

It is a basic of construction that in the absence of express words and earlier statutory provisions not repeated, altered or derogated from by a later provision unless an intention to that effect is necessary to be implied. There must be very strong grounds to support that implication for there is a general presumption that the legislature intended that both provisions should operate to the extent that they would otherwise overlap, one should be read as subject to the other.

PN389

I know that this is talking about the legislature but it is the closest analogy that we can find interpreting documents which otherwise are of equal status in giving it as much effect to that which the parties intended as possible law. That leads us to the submission that this was a power available to the Commission under section 170LW of the Act and our submissions in that regard are set out at pages paragraphs 38 and following. I perhaps should, on pain of going over ground that is very familiar to the Commission, just highlight the particular passages, first, in Bain, tab 8 of the bundle of documents.

PN390

It is a case which is, of course, very familiar to the Commission and members of the bench and Brennan and Deane JJ in volume 51 ALR started at 478 to 469 there were the relevant passages emphasising the Commission's powers of conciliation for certification of an agreement pursuant to section 28 of the 1904 Act, a memorandum of agreement between the association and two respondent companies. Then at about point 8, the paragraph starting there, their Honours highlight the fact that the Commission, in certifying such a memorandum and which then made it into a consent award, was exercising conciliation powers:

PN391

Exercise will only, where the parties to an industrial dispute have reached agreement on terms.

PN392

And then draws a distinction at 479 to:

PN393

The fact that once the stage of arbitration is reached the ambit of the particular interstate industrial dispute is the yardstick, those limited arrived from the nature of arbitration -

PN394

etcetera. This approach was highlighted, in my respectful submission, by the High Court in the CFMEU v AIRC, a copy of which should be at tab 9 of the bundle and in the judgment of the Court, starting at paragraph 24, highlights the fact that:

PN395

The making of a consent award does not involve the exercise of arbitral powers.

PN396

Paragraph 26:

PN397

So far as concerns arbitrated provisions with respect to dispute resolution procedures, it should be noted that the dispute as to the powers of the Commission should but does not have is not an industrial dispute and will not ground an award by which the Commission gives itself power to do that which is otherwise authorised to do. Moreover, an arbitrated dispute resolution provision will be invalid to the extend that it purports to confer judicial power on the Commission or otherwise.

PN398

And the Court then goes on to draw the distinction between that and non-arbitrated dispute settlement procedure as appears in paragraph 27 and highlights those powers are much wider and even the exercise of judicial powers may be possible and there is reference to Hegarty. Might I ask the Commission to pay regard also to what is said about Hegarty at paragraph 29 and then in 30 where their Honours emphasise the significant difference between agreed and arbitrated dispute settlement procedures which we have here. Whatever way one looks at it, the procedures are consented to by the parties under either one of the instruments.

PN399

In our respectful submission, the claim here was about the application of the provisions of the industrial instrument, as is provided for in section 170LW. The decision of Alcoa of Australia, which is referred to in paragraph 41 of our submissions, we respectfully submit, supports that proposition as does the decision of Deputy President Duncan in the Westpac Banking Corporation decision. And there is also some support for the proposition in CPSU v Telstra, a case which is at tab 11.

[12.23pm]

PN400

I am sorry, the page numbers I have that wrong. Paragraphs 12, 13 and 15 which the passages in paragraph - the first part of the quote from National Pack and at the end of that first paragraph:

PN401

The parties have entered into an agreement under which they have agreed that in certain specific circumstances a problem, disagreement or dispute is to be resolved by a form of arbitration, that is by the determination of a matter by a third party and that, in those circumstances, that determination will be accepted by the parties to the agreement.

PN402

Clearly, is a relevant proposition for the present purposes. The Commission would be familiar with the constitutional jurisdictional limits and foundation for such provisions deal with in Hegarty and also commented on in some detail in the decision in Qantas Airways Limited v Australian Services Union, a Full Bench on which Commissioner Cribb sat. That case is at tab 13 and, again, in my respectful submission, there are some useful comments in that which provide the analysis of the powers of the Commission underpinning what it could do in a case like this.

PN403

There could be no clearer situation where, in a particular given set of circumstances, the application of an award was in dispute as to whether the powers under section 47 - I beg your pardon, 170LW will be available. The situation in the Westpac decision, to which I referred earlier, was one in which Senior Deputy President Duncan, and I apologise to my earlier mis-description of his title, came to similar conclusions. It is at tab 14 of the volume of cases.

PN404

His Honour dealt with the question of jurisdiction under section 170LW in a decision of 10 October 2000. At paragraph 12 he sets out what the general issues were and then makes reference to 170LW and also to the Qantas decision. His Honour then, at pages 17 and 18, says:

PN405

It is noted the FSU submitted the application actually seeks variation of the agreement, it does. However, the application is specifically provided for in the - - -

PN406

JUSTICE GIUDICE: I am sorry, what paragraph?

PN407

MR DIXON: 17, your Honour.

PN408

JUSTICE GIUDICE: 17, thanks.

PN409

MR DIXON: I beg your pardon.

PN410

JUSTICE GIUDICE: Yes, thanks.

PN411

MR DIXON: His Honour accepted:

PN412

The submission that the agreement simply provides a mechanism for providing for something other than what is specified by - may be applicable in the specific circumstances.

PN413

He said that it was in keeping with the decision of the Co-Operative Bulk Handling Limited and also R v Hegarty, at paragraph 18. The particular clauses that his Honour was concerned with are to be found in what I might describe the merit determination of that case which immediately follows in the bundle at 15 where the redundancy clause contained in the relevant agreement is set out in paragraph 3. There is a transmission of business provision in sub-clause 5 of the relevant certified agreement clause and then the last paragraph, just above paragraph 4, was the provision which was interpreted as giving power under section 170LW:

PN414

Notwithstanding anything contained elsewhere in this appendix where Westpac has obtained acceptable alternative employment for an employee and considers that a lesser severance payment is appropriate, Westpac will advise the union and employee -

PN415

etcetera, and then:

PN416

May make application to the Commission for conciliation or arbitration if necessary.

PN417

That was regarded as a provision within the meaning of section 170LW. The powers under section 170LW were applicable and it was an application over the application of the certified agreement. One of the consequences of the arguments put to us - against us by the FSU about inconsistency between the award and the certified agreement leads to a number of other anomalies, as I outline in the submissions. If there is this separation, and one can't pay regard in relation to redundancy at clause 8 to what is contained in the award, then one would ask why would there be - why the transmission of business provisions would not be in the same category and the service which accrues under the transmission of business provisions would necessarily be required to go over. I have put that very badly and I apologise for that.

PN418

May I - I was dealing with, in paragraph 36 - I have tried to summarise that position where we say length of service with a previous employer would not be counted as continuous service with the new employer, if there is an inconsistency between clause 8.5 of the agreement and the scheme created by clauses 7.2 and 11.2 of the award. I went back into an earlier section. Now, if we are wrong on the incorporation point and section 170LW is not available then, in our submission, the powers of the Commission under the traditional provisions for dispute settlement recognised in Bain and the like are available under the award.

PN419

It matters not that the mechanism for the resolution of the dispute is in the award and not in the certified agreement when the two are read in conjunction. In paragraph 52 and following we set out the history, some of which the Commission is now aware of, of the award, the 1991 award, and its terms. What is very clear is that at every stage that there has been changes to the industrial regulation between the parties, in 1991 and then in 1998, it has been by consent. The award simplification process resulted in consent variations to the award and resulted in the provisions which were not allowable being consented to in the certified agreement.

PN420

This is important, in our respectful submission, in picking up what the High Court said in the CFMEU v AIRC case about the difference between arbitrated dispute settlement clauses and non-arbitrated settlement dispute clauses. We are here faced with the consent provision which allows the Commission to do a great deal under the award to resolve a dispute about the application of the required severance pay which is provided for in the certified agreement.

PN421

In paragraph 56 we make reference to the Co-Operative Bulk Handling Western Australian Grain Industry Award which is at tab 16. The relevant passages or pages I would simply ask the Commission to be note, are to be found at pages 20 to 22. There is also in the Australian Liquor Hospitality and Miscellaneous Workers decision at tab 17 an example of the exercise of powers under a provision being recognised as conciliation powers. Might I ask the Commission to go to that, it is at tab 17 print M0820, a decision of the Full Bench of 12 April 1995.

PN422

The question arose in this case as to whether Deputy President Drake had performed conciliation powers earlier on in the proceedings or whether she had performed arbitration powers, and at page 6 of the decision the Full Bench said:

PN423

We consider that the distinction between the exercise of conciliation and arbitration powers is clearly maintained -

PN424

etcetera. In the next paragraph:

PN425

It may at first sight appear incongruous that a member of the Commission publishing a decision after hearing the parties as to a disagreement between them, and whether the Commission should take some action, is regarded as exercising the power of conciliation and not arbitration. We think closer analysis reveals that the result is not so surprising -

PN426

etcetera. Of course, that, in our respectful submission, is consistent with what the High Court authorities have maintained through that process because, as we set out in paragraph 58, in discharging the functions allowed for within the consent provision to determine the issue as arbitrator the Commission is not performing formal arbitration and the Commission at first instance, in our respectful submission, erred in coming to a different view on that matter.

PN427

The limitation which appears on the Commission's powers is enunciated, for example, in the National Tertiary Education Union decision which is at tab 18 of the brief. It is not a limitation which is relevant here because what the Commission is being asked to do would clearly be something that it would be empowered to do, in any event, in its arbitral role. That decision at paragraphs - well, it is page 27 and following, analyses Hegarty and the various powers they are in support of in our submission of the appellant's arguments.

PN428

We then submit that the fact that item 50 and 51 procedures were undertaken is relevant to the matter.

PN429

JUSTICE GIUDICE: Mr Dixon, before you get off the - you were just there referring, I think, about clauses 60 [sic] and 61 [sic] of your outline?

PN430

MR DIXON: Yes, your Honour.

PN431

JUSTICE GIUDICE: Yes. I am not quite sure what the reliance is on Bain. Bain's case was about whether or not particular provisions in an agreement were within the ambit of the original dispute. It was in that context that the obiter - I shouldn't say the obiter, perhaps the dicta, of the Brennan and Deane JJ was made that it may not be necessary to rely on the strict or to apply, I should say, the strict doctrine of ambit where the agreement is obviously reached as a result of conciliation rather than some arbitration process where ambit might be more important. I am not quite sure where that takes us in this context.

PN432

MR DIXON: I think all we were trying to achieve in this submission, your Honour, was this. Unlike section 170LW where such restriction might not apply, if one is dealing with a dispute settlement clause under the award there may still be limitations on the Commission's powers. But in this case such limitations do not apply because there is nothing that is being asked of the Commission here which would not be part of the original dispute and/or which would not be, in any event, available to the Commission in its arbitral role. I don't wish to put it higher than that.

PN433

JUSTICE GIUDICE: Yes, I see.

PN434

MR DIXON: The other relevance of Bain, your Honour, would be, of course, in relation to section 170N because they are powers of conciliation that are being exercised they do not attract the prohibition under section 170N which is against the performance of arbitral functions formerly under the Act. That is the next issue which I need to address. So to summarise briefly where I have got to, we respectfully submit that once section 170LW was available, if that was not the case then clause 11.2 of the award provided the power for the Commission at first instance to deal with the matter.

PN435

The powers that would be exercised under the award are conciliation powers and, therefore, they do not attract the operation of section 170 as was argued at first instance and in respect of which the Commission agreed with the union's contentions against ours.

PN436

SENIOR DEPUTY PRESIDENT WATSON: Mr Dixon, the dispute settlement, is the dispute settlement procedure in clause 18 consistent, of the agreement, consistent with what you say the dispute procedure is under the agreement, clause - under the award, clause 10 and clause 11.2 and you are relying particularly on 11.2, to the effect that the dispute procedure in the agreement is inconsistent with the award dispute procedures and overrides them?

PN437

MR DIXON: I may have missed something you said, your Honour, but clause 11 by itself, clause 11.2, provides a dispute settlement mechanism in respect of a particular set of circumstances which might arise.

PN438

SENIOR DEPUTY PRESIDENT WATSON: Yes. Well, is that inconsistent with clause 18 in the agreement which provides for a dispute settlement process in the event of a dispute in relation to any matter arising under the agreement which you say incorporates the alternative employment issue?

PN439

MR DIXON: No, your Honour, because the dispute settlement procedure which is incorporated does not permit for arbitration. The parties are entitled, in respect of a particular - unless there is consent, no arbitration unless there is consent - the parties are entitled in relation, separately, in relation to a particular eventuality which they foresee to consent to the resolution of that dispute by agreeing that the Commission - that the applicant appellant, ANZ, can apply to the Commission for variation and implicit in that is a consent to the Commission exercising its conciliation powers in the sense used in Bain to resolve that dispute.

PN440

And it - no inconsistency arises where you have got a specific power consented to by the parties in relation to a specific set of circumstances.

PN441

SENIOR DEPUTY PRESIDENT WATSON: Except the 11.2 power arises out of the award which only applies if not inconsistent with the agreement. The agreement seems to say, in relation to any matter arising out of the agreement, arbitration requires the consent of the parties.

PN442

MR DIXON: But where the parties separately consent to a particular set of circumstances, as they have here - - -

PN443

SENIOR DEPUTY PRESIDENT WATSON: In the award.

PN444

MR DIXON: - - - in the award, and one reads them in conjunction with the two clauses, this is not the process of the parties simply following a dispute settlement procedure. They consent in advance to the powers being exercised by the Commission. If I call it a dispute settlement procedure in that sense, it is a fairly global description of a specific consent to the exercise of powers.

PN445

SENIOR DEPUTY PRESIDENT WATSON: In the award

PN446

MR DIXON: Yes.

PN447

SENIOR DEPUTY PRESIDENT WATSON: My question is really, does the dispute procedure in the agreement effectively negate the effect of that award provision? I think you answered it and I will have to consider your answer where you are saying .....

PN448

MR DIXON: Perhaps I can say, I can go back one. Of course, if that provision is incorporated into the certified agreement, as we contend it should be, then that difficulty doesn't arise because the specific would override the general within the certified agreement. The question which the Commission would then need to ask, that if it is not incorporated into the certified agreement and the clause 11.2 is simply to be read in conjunction with the award - I am sorry, in conjunction with the whole of clause 8 and the dispute settlement procedures incorporated into the certified agreement, the question then is whether one would interpret, in the context of the historical development of these two instruments where there was always been in existence the right of the parties to apply to the Commission to vary a negation of that right because of what has been inserted into clause 18 of the agreement, certified agreement.

PN449

It would be our respectful submission that in testing the inconsistency one has got to construe the documents as a whole, complementary, in conjunction with, and look at the intention of the parties and ask whether, particularly because of the wording in clause 1 which says, "...unless expressly stated to the contrary" the two cannot operate side by side. In my respectful submission, they are clearly are able to work side by side because in respect of one particularly identified issue the parties have agreed to go further than the general process which might be adopted.

PN450

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN451

MR DIXON: In our respectful submission, section 170N does not extend to the operation of the existing provisions for the settlement of the dispute which arises by the exercise of powers under clause 11.1, either incorporated - if, of course, there is no incorporation. So we only get to section 170N if our incorporation point does not find favour with the Commission. The - - -

PN452

JUSTICE GIUDICE: What form would the decision of the Commission take, assuming we are in the realm of your first alterative, that is that there is no incorporation, that they are to be read in conjunction and the Commission is empowered to decide the issue, what form would that decision take? Would it be an order under the Act? Would it be simply a decision? Because the significance of the question, to my mind at least, is what powers would the Commission be exercising? Would they be the power to make an award, to vary something, to - - -

PN453

MR DIXON: Your Honour, the power is - all the powers that would be available to the Commission, either by way of arbitration or conciliation, are exercisable. But they are not formal powers in the sense of the Commission exercising its arbitral powers because the process would be part of the conciliation function of the Commission.

PN454

JUSTICE GIUDICE: Yes. But what would the decision look like?

PN455

MR DIXON: The Commission would publish a determination which the parties, in effect, in advance, have agreed to comply with as to what should apply in the particular set of circumstances. If one accepts the authorities that such a course is a conciliation process but the outcome is implicitly agreed to in advance, non compliance with the outcome would not result in breach of the award but in breach of the obligations of the parties under their agreement, submitting to the arbitrator, the third party, a determination of the matter.

PN456

JUSTICE GIUDICE: Yes. Well, the High Court's decision on section 170LW is, of course, a very important one but the Court has not had an opportunity to consider - I am not sure that anybody else has - exactly what the implications are for the exercise of powers in a very practical way. That is, would, for example, section 143 apply? But in any event, perhaps you don't have to confront those difficulties. You are more concerned with the source nature of the power rather than the incidence of its operation.

PN457

MR DIXON: Might I just pick up one thing. I am not sure, your Honour, whether, if we are within section 170LW, that those concerns arise because the power is about the application of the agreement.

PN458

JUSTICE GIUDICE: Yes, I follow that.

PN459

MR DIXON: It is the latter. If it is only read in conjunction with and one incorporates by that means a reading together of the two instruments the - and to that one has then got to take what the High Court said in relation to agreements and translate them to consent awards.

PN460

JUSTICE GIUDICE: Yes.

PN461

MR DIXON: But we don't need to go that far because under consent awards the Bain/Hegarty line, like a board of reference determining a particular set of circumstances, ought, in my respectful submission, to get us home as to what the Commission would be doing. It doesn't seem to have been suggested anywhere that I am aware of, that that function that the Commission would be performing by way of conciliation powers needs to consider the, sort of, difficulties which your Honour envisages from something wider than what LW might have permitted, which is a private agreement between the parties.

PN462

JUSTICE GIUDICE: Yes. Well, I think so. Is that a convenient time, Mr Dixon?

PN463

MR DIXON: I am sorry, yes, thank you.

PN464

JUSTICE GIUDICE: Yes. Mr Gardner, we have perhaps detained Mr Dixon a bit longer than he might have anticipated and you might have anticipated. The question of how much time will be required for your submissions might be appropriate at this stage. We only have the matter listed for one day.

PN465

MR GARDNER: Your Honour, I would be hopeful to be able to deal with it. It may be that Mr Dixon might need to put something briefly in reply - - -

PN466

JUSTICE GIUDICE: Yes.

PN467

MR GARDNER: - - - perhaps in writing when we get to the end of the day. But I would be optimistic that we would be able to finish - - -

PN468

JUSTICE GIUDICE: We wouldn't want to deprive you of the opportunity to make what oral submissions you wish to make. That is really our main concern.

PN469

MR GARDNER: Yes. Could we - I can see that there is quite a lot of material that is being waved around the place. I would - - -

PN470

JUSTICE GIUDICE: Yes. Well, I think the best thing is to leave it for the moment and we can sit - no, unfortunately, we can't sit beyond 4. Well, we will have to see how we go. We might have to make some other arrangements to conclude the submissions. We will adjourn now until 2.15.

LUNCHEON ADJOURNMENT [12.54pm]

RESUMED [2.15pm]

PN471

JUSTICE GIUDICE: Thank you, Mr Dixon.

PN472

MR DIXON: Your Honour, we have prepared a short summary of the ultimate destination of the provisions that came out of clause 39 and I can tender the summary. It is in tabular form and I have handed a copy to our learned friend. A reasonable conclusion, in my respectful submission, is that effectively all the relevant provisions of the 1991 award made their way into one of the two agreements. There is some omissions because of the statutory changes such as unfair dismissal, notification to the relevant authorities and the like.

PN473

JUSTICE GIUDICE: Yes, thank you.

PN474

MR DIXON: Might I add one other remark about matters that were raised before the luncheon adjournment in response, I think, primarily to a question from Senior Deputy President Watson on clause 18 of the certified agreement. Your Honour, the position, of course, is this that to the extent that consent is required, consent has been given. Consent has been given by the parties in clause 11.2 of the award and it matters not that that consent is recorded in the award or that it is in a separate instrument.

PN475

That must be regarded, in my respectful submission, as sufficient consent for the purpose of any matter to the extent that clause 18 operates, particularly in regard to the history of the way in which the matters developed. Might I then deal with the potential application of section 170N of the Act. There are four bases upon which, in our respectful submission, the operation of that provision is inapplicable. The first is that the powers that would be excisable under clause 11.2 of the award would be not arbitration powers but conciliation powers for the reasons that we advanced before the luncheon adjournment.

PN476

The second proposition is that section 170N does not extend to the operation of existing provisions in agreements or awards which are being applied to a particular set of circumstances. It is not designed to prevent steps from being taken to make an agreed settlement of a dispute more effective by reason of a specific dispute settlement process. The explanatory memorandum which was tendered in the first instance and which was made in the course of the amendments to section 170N when certain anomalies became evident after its initial introduction is set out at page 248 of the Appeal Book volume 2.

PN477

I must point out, of course, that this is an explanatory memorandum being produced at the time of the amendment and under item 3 at page 248 the memorandum it is set out that section 170N, this is 1.6:

PN478

It is not intended to preclude the exercise of arbitral powers to settle a dispute under a dispute settlement procedure in an award, to vary an award to include stand down provisions or to simplify an award pursuant to schedule 5 of the WROLA Act. However, an unintended consequence of section 170N is that it may prevent the Commission from varying the award to include safety net provisions.

PN479

And then the relevant amendment was made. Now although that is not speaking at the time that the original section was introduced it is of some assistance, in my respectful submission. Might I also draw the Commission's attention to two cases which provide support for our contentions. The first is the Maritime Union of Australia decision which I need to tender, at print Q2520, 30 June 1998. It is a decision of Senior Deputy President Marsh. She was dealing with an application by the MUA to vary the Stevedore Industry Award under section 113.

PN480

The particular provisions - the case deals with a number of other issues, section 89A and the like, but the particular paragraphs to which we wanted to draw attention appear at page 5 and page 6. At the bottom of page 5 her Honour said:

PN481

Subject to the prohibition on arbitration contained in section 170N of the Act I see no inhibition to an award being made pursuant ...(reads)... for matters which may be allowable -

PN482

and so on. And then at the top of page 6 she says:

PN483

It may well be that section 170N does not in any event restrict the power conferred on the Commission under section 113 -

PN484

etcetera, relying on Bain, and we respectfully submit that her Honour is correct in that observation, even though it is an observation, but it does find support and is consistent with the submission that we made earlier today. The other decision to which I wish to refer from which one gains some assistance as to the nature of what section 170N is aimed at is the decision of Jenny Craig Weight Loss Centre v ALHMWU, print PR917945 of 20 May 2002.

PN485

It is a Full Bench decision, Senior Deputy President Watson presided, and it was a question of characterising what was the subject, true subject matter of the bargaining notice and as I understand the decision what was concluded was that an exercise of power, such as one that involves remedying an uncertainty under the award would not be caught by section 170N and on ..... reasoning the same conclusion might be reached and we respectfully submit ought to be reached where a function is being performed under a particular clause which has been given to the parties in advance.

PN486

The arguments for the appellant are at paragraphs 16, 17 and 18 and the Commission's Full Bench's decision at paragraphs 34, 35 and then 40 where it was said:

PN487

An application to vary the award to remove an ambiguity or uncertainty is of a different character from the matters contained in the bargaining notice.

PN488

That went a step further, of course, because what the Full Bench did was to examine the character of what is in the bargaining notice and that was very different from the character of what was being asked of the Commission in remedying an uncertainty. The third ground upon which we say section 170N does not apply is that this issue was not of a character that was in issue between the negotiating parties under the notification of bargaining period.

PN489

Might I draw attention to what we submit in paragraph 70. The appellant submits that the application or operation of the relevant provisions constituting existing rights operating on the occurrence of particular events is not a matter that is at issue between the negotiating parties. In Appeal Book volume 2 at 242 one will find the bargaining notice, the initiating of a bargaining period and at 243 there is simply:

PN490

That one of the matters that should be dealt with by agreement is redeployment, redundancy and retrenchment provisions.

PN491

The union in its submissions tendered other documents amplifying that but none of that material, in my respectful submission, was of a character which could alter or went to altering existing rights such as the right, for example, to apply by consent to vary the provision. So for that reason as well we say that section 170N does not apply.

PN492

The fourth reason is that the certified agreement made pursuant to the notice of initiating of a bargaining period could only operate with effect from the date of its certification, section 170LX(1), so that the rights of the parties and the obligations and the mechanism for resolving an issue which have already accrued and in respect of which the Commission had been asked to exercise its powers pursuant to the parties' consent could not, in our respectful submission, be the subject matter of a certified agreement that was going to come into operation at a later date, if it was made, and secondly, which was not going to apply to the employees whose employment had been, if I may use the word, transmitted to the new employer.

PN493

In paragraph 72 of the submission there is a typographical error in the third line. It should read "employment will not be subject to the agreement". And we say the rights of those employees could not be a matter at issue within the meaning of section 170N. The case therefore can be summarised very briefly as follows. It is a case of particular factual context. The instruments must be considered not in isolation but with the clear knowledge of the history of what the parties agreed to, presented to the Commission and how that matter unfolded.

PN494

The process, in our respectful submission, led to the incorporation of the relevant award provisions into the agreement. If that contention is correct that is the end of the matter in my respectful submission because the powers under section 170LW would clearly be available and one need not look at the award power or any of the other issues. It is a conclusion, namely that there is incorporation, which in the particular facts of this case is clearly open and which ought to have been made at first instance.

PN495

However, as I have submitted, that if we are wrong the remedy is not removed because it is available through the other means. On the question of leave to appeal our submissions are set out at page 13, relying on well known authorities to the Commission. In my respectful submission this is a case justifying leave under both limbs of section 45 - the particular public interest one but also the more - the other criteria that are often regarded as granting leave as set out in sub-paragraphs (a), (b) and (c) of paragraph 75 of the submission.

PN496

Might I, in conclusion, say something very briefly about remedy. If the Commission upholds the appeal it is our respectful submission that the appropriate order should be that the decision at first instance be quashed and that it be ordered that the application be remitted for hearing and determination on the merits in accordance with the powers available to the Commission under the instruments and the Act. If the Commission pleases.

PN497

JUSTICE GIUDICE: Just one final matter, Mr Dixon, that crossed my mind. 170LW is a grant of a specific power, if it could be characterised that way, which is not replicated elsewhere in the Act, I don't think. But while there is a specific provision which deals with the manner in which the Commission may be empowered to deal with particular disputes so as to clothe the Commission with the power of private arbitration, as the High Court described it, there is no power of that kind, I don't think, in part VI. Is that significant?

PN498

MR DIXON: Well, your Honour, there of course is the Board of Reference power. There is the power for the Commission in the making of an award - - -

PN499

JUSTICE GIUDICE: But this is not a Board of Reference?

PN500

MR DIXON: No.

PN501

JUSTICE GIUDICE: No.

PN502

MR DIXON: That is right.

PN503

JUSTICE GIUDICE: Yes.

PN504

MR DIXON: But I - I am sorry, your Honour, I didn't properly develop that point. May I go back one. There is the power for the Commission to insert into an award a dispute settlement process - this is under part VI.

PN505

JUSTICE GIUDICE: Yes.

PN506

MR DIXON: And it is in - - -

PN507

JUSTICE GIUDICE: Well, it is an allowable award matter.

PN508

MR DIXON: Yes.

PN509

JUSTICE GIUDICE: Are there other provisions dealing with dispute settlement in part VI?

PN510

MR DIXON: There is also.

PN511

JUSTICE GIUDICE: I am sorry, obviously there are provisions dealing with dispute settlement, but dispute settlement provisions of the kind we are talking about?

PN512

MR DIXON: Well, it was section 91 - - -

PN513

JUSTICE GIUDICE: Yes.

PN514

MR DIXON: - - - which is:

PN515

The Commission shall, where it appears practical and appropriate, encourage the parties to agree to procedures for preventing and settling disputes with a view to agreed procedures being included in the award.

PN516

That would, in my respectful submission, empower the Commission to have made clause 11.2 with a internal mechanism in it for the resolution of the dispute in the same way as the Commission could, in that instance, have incorporated a Board of Reference in relation to a particular matter and the Board of Reference power, of course:

PN517

The Commission may, by an award or an order made under the application of an organisation or a person bound by the award, appoint or give power to appoint, for the purpose of the award, a Board of Reference consisting of two or more persons, assign to the Board of Reference the function, and the Board of Reference may be constituted by a Commissioner.

PN518

So if one goes back to the issue in Bain's case, for example, it appears that it was accepted that a dispute settlement process was within power and that, provided there was ambit, the Commission could, by way of its conciliation powers, give effect to that agreement. So it would not be necessary to have an ..... of section 170LW if the parties have agreed to a formula which requires their consent to the Commission exercising a role in determining a dispute between them.

PN519

JUSTICE GIUDICE: Yes, but I think the significance of the question I am asking or perhaps the issue I am trying to get at is this, the High Court described the power that is enabled by section 170LW as being a power of private arbitration, necessarily something separate from the powers conferred otherwise to prevent and settle disputes in accordance with the Act and that was a - wasn't obviously a conclusion arrived at lightly but a conclusion which does away with some of the, or obviates the need to look at some of the other elements which are otherwise required to be present for the Commission to have jurisdiction, such as interstate disputes and so on.

PN520

So my question really is, if there is to be a power of that kind, in one part of the Act we have it specifically conferred but we don't have it specifically conferred elsewhere.

PN521

MR DIXON: And is ..... that if our incorporation point is right then the power is there.

PN522

JUSTICE GIUDICE: Yes, well, that is - - -

PN523

MR DIXON: But, your Honour, might - - -

PN524

JUSTICE GIUDICE: That that is an answer if that is right, yes.

PN525

MR DIXON: Might I just come back to a matter your Honour raised with me a moment ago about what the High Court said in that decision. I just wanted to clarify whether the comments by the High Court about private arbitration is where the parties agree to submit - this is in paragraph 31:

PN526

Where parties agree to submit their differences for decision by a third party the decision-maker does not exercise judicial power but a power of private arbitration.

PN527

Then it was said:

PN528

In case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding on its force, rather its effect, if any, depends on the law which operates in respect of it.

PN529

But as I understood the position as to what the High Court then says in paragraph 34:

PN530

The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs ...(reads)... of that agreement depends on general law -

PN531

which is a different point. I am not - I mean, I am not seeking to detract from what your Honour said but in one sense it is only if the clause goes further, bearing in mind the origins of clause 170LW, it was thought to provide more than could have been done within the constraints of the general powers available to the Commission and it is only if the parties give to the private arbitrator powers beyond those which the constitution or the legislation give that that general law content of their agreement takes particular effect. That is one way of reading what their Honours seem to have had in mind.

PN532

JUSTICE GIUDICE: Yes.

PN533

MR DIXON: And I am - but fundamentally the scope of the powers which the Commission is being asked to exercise here would not come within - outside of the powers that would be available by way of conciliation or arbitration under the general provisions in the Act or the constitution.

PN534

JUSTICE GIUDICE: Yes, I see, so it would only be if there was a question of exercising what would otherwise be judicial power or something of that kind that LW would be important. Is that - - -

PN535

MR DIXON: I am sorry, sir, I didn't hear - - -

PN536

JUSTICE GIUDICE: It would only be a question if - - -

PN537

MR DIXON: Yes.

PN538

JUSTICE GIUDICE: If, for example, it were otherwise exercising judicial power LW might be important, is that the way you put it?

PN539

MR DIXON: Where that issue arises?

PN540

JUSTICE GIUDICE: Yes.

PN541

MR DIXON: Yes. Might I also draw your Honour's attention to paragraph 111(1)(b) which allows the Commission to make an award order including one by consent of the parties.

PN542

JUSTICE GIUDICE: Yes.

PN543

MR DIXON: That, of course, would - where the parties in advance consent to an order being made would form part of the conciliation process. Thank you, your Honour.

PN544

JUSTICE GIUDICE: Thank you. Mr Gardner.

PN545

MR GARDNER: Thank you, your Honour. There was, your Honours, Commissioner, there was a reference this morning about the basis upon which we are here and we would only be here - and it probably goes without saying but it is worth saying, we are only here arising out of the relationship between the parties. It hasn't been capable of resolution in other ways.

PN546

What I want to do is address the jurisdictional issues first since it is perhaps worth bearing in mind that it is the decision of the Commissioner that there was no jurisdiction and it is perhaps worth going to the decision which is in volume 1 of the Appeal Books where he begins his conclusions at paragraph 122 and what the Commissioner does is, through to paragraph - that is Appeal Book page 20 - what he does is at paragraph 141 of the decision he simply deals with the jurisdictional issue.

PN547

A range of other things were agitated before the Commissioner but that is really what his decision is about. What I propose doing is dealing with the suggestion that section 170LW provides a basis for a jurisdiction and then I want to address the question of incorporation, then the question of 170N and the way in which it is said that it doesn't apply. I then want to address the issue of consent or private arbitration, the construction issues, inconsistency point and then the question of whether there are matters at issue and then disposition.

PN548

But turning first then to section 170LW. In the Commissioner's reasons he, at paragraph 133, makes some observations, succinctly put from the presiding member this morning, and that is that section 170LW has application to agreements, not awards, and that was what the Commissioner decided and it is submitted that that is a perfectly sustainable finding in this matter. The reliance on the Westpac case, and reliance was placed on that case both below and today, is of no assistance to the Bank in circumstances where, I remind the Bench of this, that there was in that case capacity under the agreement itself to apply to the Commission and for there to be arbitration on the issue.

PN549

The Westpac case is quite unlike this one and that clause, or the relevant provision, is in the Appeal Book volume 3 at page 667. It is also at tag 15. In that case as well an application was actually made under section 170LW and rule 66. It might be recalled that the application in this matter is headed an application to vary or make an order and we will come to that later on about - on the question of incorporation. The next point we make, and to summarise what Deputy President Duncan said, he said that the dispute was contemplated by the agreement and here it is submitted that is not the case at all.

PN550

SENIOR DEPUTY PRESIDENT WATSON: But that does come back to the incorporation point, doesn't it?

PN551

MR GARDNER: It does indeed and one of the difficulties here is that we are - - -

PN552

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN553

MR GARDNER: - - - coming back on ourselves because of the nature of the argument and so I am going to have to ask you to bear with me on that.

PN554

SENIOR DEPUTY PRESIDENT WATSON; Yes.

PN555

MR GARDNER: Because I will come to them without backtracking. So we say that the 170LW argument advanced by the Bank necessarily says, well, clause 11.2 is called up or incorporated which I will come to. But it is also said that clause 11.2 is in fact a procedure or a dispute settling clause within the meaning of section 170LW. Now it is perhaps worth reminding myself, at least, if not the Bench of what 170LW says about the question because it refers to procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement.

PN556

That is the condition precedent. In the absence of that then 170LW doesn't get any further and it is submitted that clause 11.2, which is set out in a number of spots but conveniently at paragraph 39 of the Commission's decision, on page 9 of the Appeal Book. It is submitted that a provision that permits the Bank to apply to the Commission to vary, which is what this provision is, is not a procedure of the kind contemplated by section 170LW because it - what it is, in truth it is a leave reserved type clause and the Commissioner is familiar with those sort of clauses and it owes its origin to the termination change redundancy provision.

[2.47pm]

PN557

It is clear that it is not a dispute settlement procedure clause particularly in circumstances where both the agreement at clause 18 has one that satisfies section 170LT(a) and there is also one in clause 10 of the award. It is submitted that on no view can that clause 11.2, properly understood, be regarded as a procedure for the settlement of disputes as required by section 170LW. It is also - 170LW also is concerned about disputes or the settlement of disputes over the application of the agreement.

PN558

It is submitted that what was sought in this application or the application before the Commissioner was not, in effect, a dispute over the application of the agreement at all. What it was was it was sought to be exercised a leave reserved provision. On either formulation, that is the first of the formulations or the second of the formulations, the dispute, if there was one between the parties, was over the capacity to have the matter arbitrated at all. It is submitted that there was no real dispute or no dispute of the requisite kind given the unambiguous terms of the agreement.

PN559

Section 170LW we emphasise is not a source of power independent of its terms but it is dependent upon the requisite procedures being the certified agreement. The effect of the Bank's approach in this matter is really, as I think was observed this morning, seeking a variation of the agreement other than under section 170N(d). It is submitted that it is a mechanism to avoid what is the clear scheme of the Act for the variation of an agreement.

PN560

Now one of the issues that I - before dealing with the question of incorporation I make the observation that the Bank says, well, clause 11.2 is incorporated into and is part of the agreement and yet points the Commission to the history of the matter and the conscious decision, so it is said, of the parties to make two different industrial instruments. Before Commissioner Eames the question of incorporation was not directly addressed in the way it has been on appeal.

PN561

It was dealt with in a different way and I will demonstrate that. That said, the way incorporation is dealt with before this Full Bench it is submitted is not satisfactory. First we observe that the certified agreement and the awards are not acts of Parliament of the kind the authorities - to which the Bench has been referred. The first two tabs are dealing with acts of Parliament. The second observation we make is that the two instruments concerned, that is the award and the certified agreement, are not instruments of an equal kind at all, as was suggested that the comparison of state acts of parliament might be.

PN562

Rather the parties were clearly conscious by the terms of the certified agreement itself of the different standing or hierarchy between the two instruments. The next observation we make about incorporation, and it is really clause 1 of the certified agreement that is relied upon, is that the Commission should have regard to the nature of the instrument itself and my learned friend, it is submitted, gave insufficient attention to the nature of a certified agreement and the process by which it had to be drawn to the attention of 21,000 employees of the Bank by which the parties were - and that is obviously going to have an impact on the way in which the document is drawn.

PN563

Clause 1 of the agreement is no more than an explanation to the 21,000-odd employees of the Bank that the provisions of the award would, in the language of the agreement itself, continue to apply. It is submitted that for that provision to be construed as an incorporation provision would in no way reflect the nature of the industrial instrument with which we are concerned. Furthermore, it would be puzzling as to why clause 3 would be provided or inserted by the parties if on one hand there is a provision to incorporate, which we don't accept. It would be an odd process then to include a clause 3 that uses the conventional formulation that the award is to be read in conjunction with and the Commission is conscious that that is a conventional formulation following the observations of the Commission that have been referred to this morning.

PN564

We draw particular attention in clause 1 of the agreement to the expression "continue". It is submitted that it is that word that really is, in plain English, fatal to the Bank's submissions in this matter. It is central, in our submission, to an understanding of the way in which that clause operates. One might ask if clause 10 of the award, that is the dispute settlement clause of the award, was incorporated why bother having clause 18 which is the certified agreement dispute settlement clause.

PN565

JUSTICE GIUDICE: Just on the use of the word "continue", what was the timing of the making of the award and the agreement?

PN566

MR GARDNER: As I understand it, your Honour, the - - -

PN567

JUSTICE GIUDICE: It is recorded somewhere, isn't it?

PN568

MR GARDNER: Yes, it is.

PN569

JUSTICE GIUDICE: Yes.

PN570

MR GARDNER: The award was made and the agreement certified on the same day though the date of issue of the award was later on. You were taken this morning to the transcript of the making of the award. The agreement was certified on the same day. But, of course, there had to be the process of the circulation of the agreement and getting the approval and all those sorts of things and the relevant statutory declarations are at the back of volume 3, which is where I get the 21,000 people from.

PN571

And we say about that that the Commission should be very slow to take the sending out of a certified agreement and its approval as reflective of simply the consent of two parties or the negotiating parties as if the provisions of the Act have no role to play or can be ignored or give the industrial instrument, the certified agreement, no different standing from the terms of the consent award itself. We say it is significant that that process had to be gone through and that it had to be approved.

PN572

We invite the Commission, in looking at the agreement, to contrast the approach taken in clauses 12, 13 and 14 to - the approach taken in those clauses where the parties have taken some care to identify the way in which the relevant industrial instruments will come into effect, including collective negotiations, the way in which the agreement itself can be varied, the way in which Australian workplace agreements might come into effect, with the suggestion that they have been so casual in clause 1 as simply to use the word continue to apply.

PN573

Throughout the written submissions or in a number of spots in the written submissions of the Bank there are references to incorporation and there is also references to clause 11.2 as itself being a procedure for the prevention and settlement of industrial disputes. We emphasise that in our submission it is not such a provision at all. In relation to the issue of apply and the use of apply in the clause it is submitted that the aide-memoire on the use of apply in the agreement provided by my learned friend is unhelpful in circumstances where - does the Commission have a copy of that aide?

PN574

JUSTICE GIUDICE: Yes.

PN575

MR GARDNER: Yes. It deals in clause 1 with "will continue to apply" and I have drawn attention to the significance of continue. In the next clause it draws attention to clause 4.1 and suggests that there it is - the "will apply" governs it seems - what is suggested is governs both the award provisions and the conditions that follow. It is submitted that the sensible reading of the clause is that it is only the following conditions that will apply as terms of the certified agreement and that the preliminary words are of much the same character as an observation to assist 21,000 people to read it sensibly.

PN576

The same we would say applies for 4.2 and the - we don't accept the way in which that has been set out. We say it is an unduly constraining approach to the terms of the agreement and doesn't reflect the plain language in which the parties have dealt with it. Further we say that the decision in Seymour, which was at tab 4 - could I invite the Commission to go to that case. It was Seymour v Stawell Timber Industries, a decision of the Full Court of the Federal Court, and the Commission was taken to page 307.

PN577

SENIOR DEPUTY PRESIDENT WATSON: Which tab is that, Mr Gardner?

PN578

MR GARDNER: Tab 4, your Honour.

PN579

SENIOR DEPUTY PRESIDENT WATSON: Thank you. At page?

PN580

MR GARDNER: 307. It was the judgment of Gray J. We refer to point 8 on the page where his Honour refers to the second important factor:

PN581

Where the framers did seek specifically to exclude the operation of the award in a particular state they did so with great clarity.

PN582

It is submitted that when this agreement is examined the care with which the parties have addressed provisions of the award, which they say is to continue to apply, the provisions for the future variation of the agreement, provision for AWAs, and so on, belies a submission that the use of the word "will continue to apply" in clause 1 could properly be regarded as incorporation by some form of reference or incorporation. As I observe, the decisions of - I withdraw that.

PN583

Turning then to section 170N and the Bank's submission really that seek to avoid its effect and they refer, one basis upon which that is done is that the operation of existing provisions for dispute settling matters aren't caught by section 170N and reference is made in that regard to the explanatory memorandum. We, in this regard, repeat our submissions in relation to clause 11.2 and we observe that it really is classically drafted by reference to section 113.

PN584

That is its flavour; that is, apply to vary. It is not of the nature of a dispute settlement matter at all and it shouldn't be thought that it is some mere incidental operational matter, that the question in issue isn't some operational matter. What we had was a single ANZ employer award with massive redundancies involved. It wasn't a mere - the issue wasn't a mere maintenance of a settlement, it was the provision for a removal or the variation of the general prescription contained in the certified agreement.

PN585

It is submitted that section 170N has application in circumstances where an application is made to, as here, vary the award or seek an order by arbitration of the provision. Now leave aside, for the moment, the effect of any prescription that might arise. The next basis on which section 170N is said not to apply is because of that it reflects consent arbitration not paid under part VI and that it was really, it is really an aspect of conciliation.

PN586

Well, we say a number of things about that. The first is that the consent award continues in its operation by section 149(1) and that the variation of that award involves, in our submission, consent award or not, the variation of the award involves the exercise of arbitral power and that 11.2 again, we come back to it, doesn't render the exercise of the Commission's power something other than arbitral. It is submitted that the approach adopted by the Bank really confuses the act or the power that is involved in invoking the Commission's jurisdiction to vary the award with what is really the spent conciliation exercise reflected in the consent award.

PN587

It is submitted that the provision in 11.2 doesn't involve the parties in any way agreeing to a procedure and certainly it does not involve the parties consenting to the Commission's determination of an adjustment to the severance pay requirements. Can I illustrate that by suggesting that were the Bank to persist with the application there would be nothing to stop, in our submission, the union making an application under section 111(1)(g). Now that observation has equal application to the suggestion that there is also some form of consent arbitration but I will come to that later.

PN588

But the capacity to make an application under section 111(1)(g) is entirely inconsistent with an arbitration agreement or an agreement to refer matters to an arbitrator for determination.

PN589

JUSTICE GIUDICE: It seems to me to run together two of your arguments, the first of them being this isn't an agreement for a procedure. Now if that be the case, if one is simply summoning up a power to vary under 111 or 113 then one could readily see that 111(1)(g) might be available, but the central question is whether this does amount to a consent arrangement for variation to the required severance pay, whatever that is - - -

PN590

MR GARDNER: Or wherever that is.

PN591

JUSTICE GIUDICE: Or wherever it is, yes. I am not sure that I understood your submission on why this isn't an agreed procedure or why 11.2 doesn't contain an agreed procedure. It seems to provide that in a consent document that in the circumstances set out an application can be made to vary the obligation. Isn't that an agreement as to those matters?

PN592

MR GARDNER: In our submission it is not, your Honour. It is not particularly if you look at the language of the clause and, I suppose, its origins too when you think of the TCR which is where it all really comes from. The original TCR Full Bench talked about - this is, I am just quoting, I won't provide it but it is the TCR test case (1984) 8 IR 75 where the Full Bench referred to instances where the employer might argue that there are circumstances that might warrant an application for relief from the obligation to pay the general prescription and then they say:

PN593

We do not wish to prevent an employer making an application to be exempted from the general prescription pursuant to this decision in cases where an employer obtains acceptable alternative employment.

PN594

And then in the supplementary decision, the 9 IR 115 at 135, the test case is:

PN595

An employer in a particular redundancy case may make application to the Commission to have the general severance pay prescription varied if he/she obtains acceptable alternative employment for an employee.

PN596

The provision with which we are dealing here owes its roots to that provision and it is submitted that for that to be construed, that entitlement to make an application to vary the general provision to be construed as a consent procedure would be to stretch the notions of what anyone ever thought was a process for consent arbitration. After all it provides only that an employer can make an application.

PN597

JUSTICE GIUDICE: Yes, I am not suggesting, which I took to be a related point you were making, that the provision necessarily binds you to the result in the sense that - or binds your client to the result in the sense that no appeal would be available or no challenge could be made. That seems to me to be a different question to the situation which seems to be one simply of agreement that if a certain situation arises that an application can be made.

PN598

MR GARDNER: Well - - -

PN599

JUSTICE GIUDICE: In any event whether there is a real difference that is important in this case I suppose depends upon the findings on a number of other matters but in a certain scenario, to use a much over-used word, it might be important.

PN600

MR GARDNER: Well, that is true, that is quite true, your Honour, but we would strongly resist the suggestion that the language of that kind is such as to be a procedure for the settlement of a dispute of the kind we have talked about and - I will deal with it now because it is related. I wasn't going to deal with it until later on but in terms of an arbitration agreement it actually becomes very important and that - can I take the Commission to the decision of the High Court in CFMEU v Australian Industrial Relations Commission, that is at tab 9.

PN601

My learned friend has just taken you to the very provisions but I - - -

PN602

JUSTICE GIUDICE: The case is badly named, of course. The Commission's decision was quashed by the Federal Court.

PN603

MR GARDNER: Yes.

PN604

JUSTICE GIUDICE: And reinstated by the High Court. The case is named as though it were a case against the Commission. It is a matter of importance to three of us in the room anyway.

[3.15pm]

PN605

MR GARDNER: It is.

PN606

MR DIXON: Perhaps not the only omission that occurred, your Honour.

PN607

MR GARDNER: Can I take the Commission to paragraph 31 at page 69 of the report. There the Court says:

PN608

Where the parties agree to submit their differences for decision by a third party -

PN609

that language is of very real significance and can I explain why by reference to an extract from the Victorian Commercial Arbitration Act 1984 of which I have copies. The Commercial Arbitration Act 1984 and you will see in section 3(2) that:

PN610

The Act applies to an arbitration agreement, whether made before or after the commencement of the Act and to an arbitration under such an agreement.

PN611

And the definition of an arbitration agreement, found on page 4 in section 4(1). It means:

PN612

An agreement in writing to refer present or future disputes to arbitration.

PN613

The High Court, in using the language in paragraph 31 they have, has been cautious and effectively adopt what is the general law or common law position which is also reflected here in the statute - for the parties to agree to refer present or future disputes to arbitration. It is submitted that in this situation the provision concern is not such an agreement at all and indeed when the High Court refer to the need, in paragraph 34, to the underlying agreement and arbitration agreement depending on the general law, they draw attention to the general law and the need for the relevant agreement to be to refer the, in the language of the provision, to refer - for the parties to referring present or future disputes to arbitration.

PN614

Clause 11.2 doesn't do that. What clause 11.2 does is that it says that one of the parties can make an application and it is submitted that that is of real significance to the Bank's submissions in relation to there being some form of arbitration agreement. But it is also of significance in relation to the question of whether it is a, really a dispute settlement procedure. I went off there - - -

PN615

JUSTICE GIUDICE: Because you were provoked.

PN616

MR GARDNER: - - - because I was provoked, yes, your Honour. I was dealing then with, really with the argument that section 170N doesn't apply because it is - the arbitration isn't of the kind referred to, that is a part VI kind. It was also submitted that this private arbitration motion provided a separate head of power which I have alluded to briefly. Can I just pick up one thing that fell from your Honour right at the end of my learned friend's submissions and that is if there was a power of private arbitration what was it that Commissioner Eames was up to, was it really on a private frolic of his own, because it seems to me that that is one possible consequence of the Bank's submission, that there is a private arbitration going on - well, what exactly is Commissioner Eames doing there.

PN617

Did he have anyone's permission or was he performing it at the wish or will of the parties. It is submitted that that itself tells against the notion that there is a private arbitration agreement of the kind contemplated. He was moonlighting perhaps.

PN618

JUSTICE GIUDICE: That would put us in the same category.

PN619

MR GARDNER: Yes, your Honour.

PN620

JUSTICE GIUDICE: Not a very attractive thought.

PN621

SENIOR DEPUTY PRESIDENT WATSON: Working unreasonable hours.

PN622

MR GARDNER: I have drawn attention to the language and its - the background of the language in the TCR case and we reiterate the submission that clause 11.2 is not a private arbitration agreement. It is submitted that the onus in establishing such agreement is on the Bank and it is not good enough, in our submission, to simply refer to the High Court's decision, the fact that there is this notion of private arbitration, and not actually come to grips with the rigours or the requirements of arbitration and of the requirements of arbitration agreements and in circumstances where what we have is a conventional, though not in identical TCR terms but a conventional provision providing for an application to vary a general prescription, it is a very long shot to then say that that is a private arbitration agreement or private arbitration clause.

PN623

In terms of private arbitration we note that one consequence of the ANZs argument, and for our part we don't necessarily accept it, but one consequence of the ANZs argument is that - clause 10 of the award, which is a dispute settlement procedure, If it is a consent provision, as is said, and it is incorporated any referral then that the Commission had, any referral then to the Commission means that the Commission has effectively consent arbitration powers for any matter referred to which the parties are bound to the outcome and so on. It must be said that that hasn't been the position adopted by the parties in relation to it but that seems to be - is a consequence.

PN624

I referred before to an application under section 111(1)(g). Can I just remind the Commission, as a matter of the history of this proceeding, that the union made application under section 111(1)(g) before Commissioner Eames and that was done at Appeal Book pages 102 and 117. I won't trouble you with it now but we didn't file any notice of contention on that point given that it was unnecessary given the conclusion on jurisdiction but it was there.

PN625

The reason I raise it is to point to what would be the consequence of the Bank being permitted to run its case and then say being successful and having a nil severance outcome in an award given the impact of the two industrial instruments, namely the certified agreement in clause 8.5 and the award to be made or the order to be made and it is submitted that really, that it would be a futility because any such award or order would have to be inconsistent with the provisions of 8.5 and I will come to inconsistency shortly.

PN626

There was some criticism made of Commissioner Eames in relation to his dealing with the two instruments and the way in which they were to be treated as cognate instruments or treated in conjunction. Can I ask the Commission to actually go to the Commissioner's decision on this issue. At paragraph 128, which is at page 20 of the Appeal Book, the Commissioner said:

PN627

I accept the submission of Ms Maloney that they are not cognate instruments as such and must be read in their own terms.

PN628

And then over the page, at paragraph 131, he says he must look at each document and read them and so on. Now my learned friend was critical of those conclusions but can I draw the Commission's attention to what it is or the submissions to which the Commissioner was responding. In Appeal Book 1 at page 43 in transcript Mr Bunting at paragraph 95 indicates that he will demonstrate that the two instruments were made together as part of one joint exercise with the ultimate formulation of what fitted where were determined rather arbitrarily.

PN629

Then at page 46 at paragraph 109 he refers to reading the documents together as a matter of generality and then at paragraph 113 he says:

PN630

The drafting of the certified agreement was done together with the award. They are really cognate instruments. As clause 1 of the agreement indicates, and the history, they come from a common exercise and are inextricably associated with each other. Each of them sheds light on the other, each of them needs each other to complete the picture.

PN631

And then he talks about their combined effect. Over the page at paragraph 118 they are selected consensually - no, I am sorry that - at page 48 at paragraph 122 it really, there is something at 121 but at 122 in the last sentence of that paragraph:

PN632

And the history of the making of the two instruments makes it crystal clear, we say, that there is a mutual intention that clause 8 of the agreement should be read conformably with and not override 7.2 and 11.2 in the award.

PN633

And then at the bottom of paragraph 123. Then at page 76 of the Appeal Book at the bottom of paragraph 335 Mr Bunting says that, about four lines from the bottom:

PN634

We submit to make good the proposition that this agreement, as reflected in two documents, an award and a certified agreement, should be read in a way that takes account of its common ancestry, that they are cognate documents, each properly to be read in a way that takes account of the other.

PN635

At page 125 of the Appeal Book at the bottom of paragraph 653:

PN636

And in clause 8 of the agreement the additional provisions or the general provisions, if you like, in relation to redundancy, redeployment -

PN637

etcetera -

PN638

...all of those provisions were intended to have operation and effect. All of them were intended to have, if you like, an equality of status.

PN639

And at paragraph 657 there is a reference to directing and mandating that the award will apply. At page 126 at paragraph 661 at the bottom of the page, four lines from the bottom before the quote:

PN640

We submit that there really should be no doubt that the words of the agreement and relevant words of the award are to be read conformably or put another way, none of them should be taken and interpreted without some knowledge of the intended operation of the others.

PN641

And then page 129 at paragraph 675, third line:

PN642

Once the proper construction of the certified agreement is undertaken along the lines we have submitted -

PN643

and I won't repeat it all, then manifestly the answer is "yes" -

PN644

...you have a whole scheme contemplated in and mandated by either certified agreement and in particular I refer to clauses 1 and 8 and the scheme includes clauses 7.2 and 11.2 of the award intended to operate by virtue of and together with the agreement.

PN645

It is submitted that is an important passage because that gives the sense of what it is that the Commissioner, in his decision, is having to address. Appeal Book at page 139, paragraph 756:

PN646

There is a process identified and reserved by the parties in their various consent instruments, the agreement, the consent award, which, as we have said, should be read in an integrated way.

PN647

Now there have been a number of words used and in particular the Commissioner appears to have used the word "cognate" and Mr Bunting used "conformable" on a number of occasions. Can I just provide an extract from the Macquarie Dictionary about cognate and conformable just to assist the Bench in the submission I am about to make. I wonder, your Honour, if your Associate might assist me. The criticism directed at the Commissioner was that he held that they weren't cognate instruments and in one sense that is true, he was in error, because there was this common related by birth or common ancestry or whatever.

PN648

The point I am emphasising is that in the context of the submissions made it was being - a lot more was being said of the two instruments than simply that they were related or that they were cognate.

PN649

JUSTICE GIUDICE: Mr Gardner, it is really a bit of a distraction, isn't it, what words were used?

PN650

MR GARDNER: Well, it is.

PN651

JUSTICE GIUDICE: Yes.

PN652

MR GARDNER: But it is submitted that the Commissioner was in error in holding as he did and what I am simply submitting is, well, in fairness the submission put to him went well beyond the use of cognate.

PN653

JUSTICE GIUDICE: Yes.

PN654

MR GARDNER: And we resist the attack on the Commissioner's decision to that extent and we say that his decision in the circumstances is supportable and fairly supportable because he is dealing with two industrial instruments, he is dealing with industrial instruments that take care to refer one to the other and that the criticism made by the Bank on the Commissioner's decision is, in the context, unfair.

PN655

JUSTICE GIUDICE: Yes. I wonder what the OED says.

PN656

MR GARDNER: Harmonious. I think harmonious. This one does too, I think. Conformable, in harmony. In reading these documents, and particularly the certified agreement, it is submitted that the Commission should be cautious to what I think was referred to this morning as, in connection with one authority, to re-jig the agreement. That wasn't quite the word, that was the sense I had. Can I provide the Commission with a decision of Finkelstein J in CFMEU v Amcor Ltd of 13 May 2002.

PN657

In that matter his Honour had to construe the terms of a certified agreement which provided at paragraph 7 on page 3 for redundancy and the question arose, and over the top of page 4 there was a payment for severance and the question arose as to whether there had been a redundancy or not and his Honour dealt with the question of whether there was a redundancy and he refers at page 5 paragraph 11 to the TCR case and he reaches his conclusion on page 7 at paragraph 16 that in deciding whether someone is redundant, refers to the situation where an employee has been dismissed for a particular reason.

PN658

Then the complaint was that there was, in effect, something missing from the certified agreement and the passage I want to take the Commission to is at paragraph 18 on page 8 where his Honour said:

PN659

There comes a point when a Court of construction must resist the temptation of forcing a meaning to a bargain which the parties didn't ...(reads)... thought it could not be filled by the Court -

PN660

and there is a reference -

PN661

it now appears to be accepted that a Court can fill a gap when words have been omitted or where, because of inadvertence, Parliament has failed to deal with a matter required to be dealt with if the purpose of the Act is to be achieved -

PN662

and there is references -

PN663

However, before the Court can undertake that task it must be possible to state with certainty precisely what Parliament would have inserted in the statute had its attention been drawn to the omission -

PN664

there is a reference -

PN665

Here if the same reasoning allowed the Court to fill a gap in a certified agreement I can only surmise what the parties would have done.

PN666

Now it is submitted that you are dealing in this matter with a certified agreement and an award and it is not the same as two acts of Parliament, it is not the same as construing an award in award breach circumstances and it is submitted that the Commission should be cautious in simply construing particular provisions against their terms by reference to the filling of gap and saying, well, really what the parties meant or thought was this or that or the other thing, particularly in the case where you have got a certified agreement which is a very different sort of industrial instrument. In terms of the history of the 1991 award - - -

PN667

JUSTICE GIUDICE: Before you leave that decision of Finkelstein J, that matter has gone on appeal, I think, hasn't it?

PN668

MR GARDNER: An appeal has been foreshadowed. I don't think it has actually been filed, but I am pretty sure it is going to - it will go to appeal.

PN669

JUSTICE GIUDICE: Yes. I think his Honour made an order.

PN670

MR GARDNER: His Honour had made an order.

PN671

JUSTICE GIUDICE: Yes.

PN672

MR GARDNER: There was a delay between this decision and then an order and then the order was made.

PN673

JUSTICE GIUDICE: And an appeal is expected.

PN674

MR GARDNER: An appeal has been foreshadowed and expected, yes.

PN675

JUSTICE GIUDICE: Thank you.

PN676

MR GARDNER: The history of the 1991 award, and we haven't had a chance to check what - the table provided by my learned friend but we have got no reason to believe that it is anything other than accurate, but what it does show is that it is not simply a case of direct transfer, one provision to another provision, but that the parties have had to turn their mind to the making of a certified agreement and the making of an award, they had to turn their minds to what to leave in and what to put out and it is not, as one of the cases was referred to this morning, simply an exercise of reordering an existing award provision.

PN677

It was a more complex exercise than that and the Commission should be slow here just to decide that it can be construed in a particular way. There was an observation in terms of dealing with the issue of construction generally about or an exchange between your Honour Justice Giudice and my friend about ambiguity and uncertainty and the need for perhaps having two reasonable versions to deal with and it is submitted that this material, the arguments advanced in relation to clause 1, really stretch the limits and indeed we submit don't reach the limits of a reasonable version at all, given the nature of the provision.

[3.45pm]

PN678

The question of inconsistency between clause 8 and clause 11.2 of the - clause 8 of the agreement and 11.2 of the award, the complaint by the Bank is that the Commissioner should have concluded that there was no inconsistency and in his decision at paragraph 132 on page 21 he refers to the award making reference to the severance pay, the absence of a clause in the award but no reference to the agreement provision. Then he makes a reference to treating them as cognate documents and he says he is not prepared to accept that submission.

PN679

It is submitted that he, in the context of this matter and his dealing with the question of jurisdiction he doesn't really have to make a finding on this issue because all he goes, he only goes as far as section 170LY(1) and clause 1 itself. That is that the award is to be read or - sorry, I withdraw that. Section 170LY(1) and clause 3 of the agreement, that is that the - I withdraw it again. It is clause 1 of the agreement, and the reference to inconsistency.

PN680

The Commissioner didn't have to go any further than that in circumstances where all he was doing was - well, all he did was to find on jurisdiction. It is submitted any outcome made under clause 11.2 would have to be inconsistent with clause 8.5 because it would derogate in a direct way from the operation of clause 8, again on the assumption of no incorporation. On the question of inconsistency it is true that the section 109 constitutional approach of covering the field and the like is not appropriate in making this sort of assessment, but here what we would have, it is submitted, is a direct inconsistency.

PN681

Can I pick up one issue dealt with by Senior Deputy President Watson and that is whether there is an inconsistency between clause 11.2 of the award and clause 18 of the agreement and it is submitted that that would be the case and the - my learned friend's response that the specific circumstances of 11.2 would still give 11.2 room to operate it is submitted is not an answer to the terms of clause 18 of the agreement itself.

PN682

JUSTICE GIUDICE: What room does 11.2 have to operate?

PN683

MR GARDNER: 11.2 really can't operate.

PN684

JUSTICE GIUDICE: At all?

PN685

MR GARDNER: That is right.

PN686

JUSTICE GIUDICE: In any situation?

PN687

MR GARDNER: Oh, in circumstances where there wasn't a bargaining period, no, I don't think so. I think it has no work to do and I think that is a consequence of what happened and that is a consequence of the industrial instruments that the parties have got.

PN688

JUSTICE GIUDICE: So the term "the required severance pay" refers to the provisions of the agreement or - - -

PN689

MR GARDNER: Well, that is a fact.

PN690

JUSTICE GIUDICE: Yes.

PN691

MR GARDNER: The required severance pay, that is a fact. There is a required severance pay in the certified agreement.

PN692

JUSTICE GIUDICE: Under the agreement, yes. Do you say because of the operation of the provisions of the Act which give the agreement primacy 11.2 can't operate? Is that how you put it?

PN693

MR GARDNER: The terms of the Act itself say agreement has primacy. The parties knew about that. They went to great - they spent time in their agreement saying that the award provisions would continue to apply. Now that is the position. That is where we are and it is submitted that the Commission really is in the position of having to let the matter rest as it is, that it doesn't have jurisdiction to permit the variation sought. The parties went about the exercise, they created an award. A certified agreement went through all of the usual processes and provided a general prescription. There is no severance in the award. The suggestion - - -

PN694

JUSTICE GIUDICE: You have not yet addressed, I don't think, clause 3 of the agreement. You are coming to that in due course?

PN695

MR GARDNER: Well, I will deal with it right now. I referred to it in one context - - -

PN696

JUSTICE GIUDICE: Mr Gardner, we unfortunately are going to have to adjourn at 4 and so now might be a good time to explore how the case is to be concluded.

PN697

MR GARDNER: Yes.

PN698

JUSTICE GIUDICE: As I indicated before lunch we would not want to restrict your opportunity to make oral submissions given that we have certainly given a fair amount of latitude to Mr Dixon and explored a number of issues with him. Does that mean that we would need to sit again?

PN699

MR GARDNER: Your Honour, that would be my preference. I have been, I must admit, sort of trying to move it along but it is - - -

PN700

JUSTICE GIUDICE: Yes.

PN701

MR GARDNER: I am just not going to do it.

PN702

JUSTICE GIUDICE: No, well, there is a lot to cover so - how long do you think we would need, Mr Gardner and Mr Dixon?

PN703

MR GARDNER: Look, I would have thought an hour at the outside, your Honour, for what I have got left to say.

PN704

JUSTICE GIUDICE: Yes. Mr Dixon.

PN705

MR DIXON: I would be under an hour, probably half an hour. I might be able to supplement what I want to say in writing if there is any period of time - - -

PN706

JUSTICE GIUDICE: Yes, well, that may be an option but if we are going to sit again it is probably better to finish it orally. Mr Dixon, one question because you are not a local, if you are able to find some time tomorrow would that be possible for you?

PN707

MR DIXON: I would - - -

PN708

JUSTICE GIUDICE: It is a conditional question. I am not sure that we can.

PN709

MR DIXON: Your Honour, I would make every endeavour to try and accommodate that. I have in fact a Melbourne client arriving in Sydney to see me tomorrow and they chose to see me in Sydney but I will try if - I may be able to prevent that from happening. I will do my best to try and achieve that result.

PN710

JUSTICE GIUDICE: Well, it might be worth exploring that possibility. Mr Gardner, would that be a possibility for you?

PN711

MR GARDNER: Yes, your Honour.

PN712

JUSTICE GIUDICE: Yes. You are in some doubt about tomorrow?

PN713

MR GARDNER: Yes. There are - - -

PN714

JUSTICE GIUDICE: Yes, well, look, it is not going to be easy in any event so - - -

PN715

MR GARDNER: If it is not going to be easy in any event there are two matters I have got a problem with tomorrow.

PN716

JUSTICE GIUDICE: Yes, I see. Well, I think the best thing might be if we adjourn for a few moments and we will try and come up with a number of possibilities when we can get together and see if something can be worked out that way. Mr Gardner, I think you were going on to another point so is that a convenient time to break your submissions?

PN717

MR GARDNER: I think it is, your Honour, yes.

PN718

MR DIXON: Your Honour, just - - -

PN719

JUSTICE GIUDICE: Yes, Mr Dixon.

PN720

MR DIXON: Would your Honour like me to explore the possibility of tomorrow or - - -

PN721

JUSTICE GIUDICE: Look, I think in the circumstances it is going to be too difficult in any event.

PN722

MR DIXON: If your Honour pleases.

PN723

JUSTICE GIUDICE: So it might be better not to inconvenience any more people than we probably will already. Yes, we will adjourn for a few minutes.

SHORT ADJOURNMENT [3.57pm]

RESUMED [4.06pm]

PN724

JUSTICE GIUDICE: Gentlemen, we have got a number of possible dates. The first is the afternoon of 30 July which is next Tuesday. Mr Gardner?

PN725

MR GARDNER: That is fine by me, your Honour, yes.

PN726

JUSTICE GIUDICE: Yes. Mr Dixon?

PN727

MR DIXON: It requires some change, your Honour, but if I may see the options without inconveniencing - - -

PN728

JUSTICE GIUDICE: Well, the other possibility next week is the afternoon of Friday which is the 2nd.

PN729

MR GARDNER: That would be a preference in fact.

PN730

JUSTICE GIUDICE: Yes.

PN731

MR DIXON: It would suit me.

PN732

JUSTICE GIUDICE: It would suit you better too, Mr Dixon?

PN733

MR DIXON: If that suits the Commission.

PN734

JUSTICE GIUDICE: Well, in that event we will make it 2.15 on Friday the 2nd. Yes. Any other matters before we adjourn? Thank you, gentlemen. We will adjourn until Friday, 2 August 2.15.

ADJOURNED UNTIL FRIDAY, 2 AUGUST 2002 [4.07pm]