C0025/398, Transcript of Proceedings [2002] AIRCTrans 3265 (26 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00253 of 1998
C No 24453 of 1999
C2001/6462
C2002/1918

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE HOTEL MANAGERIAL STAFF
(FEDERAL) AWARD 1974 - LIQUOR AND
ACCOMMODATION INDUSTRY
RE CONDITIONS OF EMPLOYMENT

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

and

AUSTRALIAN HOTELS ASSOCIATION and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions of employment

HOTEL MANAGERIAL STAFF (FEDERAL) AWARD 1974

Application under section 113 of the Act by
Club Managers' Association, Australia to set
aside award

CLUB MANAGERS' ASSOCIATION, AUSTRALIA

and

AUSTRALIAN HOTELS ASSOCIATION

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions

SYDNEY

2.36 PM, THURSDAY, 8 AUGUST 2002

Continued from 14.3.02

Hearing continuing

PN328

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please?

PN329

MR P. COOPER: I appear on behalf of the Club Managers Association Australia.

PN330

MR N. SWANSCOTT: Commissioner, I appear with Ms Bennett for the Australian Liquor Hospitality and Miscellaneous Workers Union.

PN331

MS S. ZEITZ: May it please the Commission I seek leave to appear with Ms Bergmann Manna for the Australian Hotels Association.

PN332

MR B.D. HODGKINSON: May it please the Commission I seek leave to appear as senior counsel instructed jointly by Clayton Utz, solicitors, and Australian Business Lawyers in the interests of two large hotel groups that can be summarised for present purposes as Accor Hotels and as the Six Continents Hotels.

PN333

The purpose of seeking leave to appear is to in turn seek leave to intervene on behalf of those parties and the various subsidiary companies that operate hotels in the Australian hotel industry in the proceedings generally as we understand that the proceedings are essentially all being heard together or concurrently and we understand the utility of that in an industrial sense and we would seek an opportunity to advance reasons if necessary for the intervention including the handing up of an affidavit which will set out in a factual sense the position of the two corporate entities that we seek to appear for.

PN334

THE SENIOR DEPUTY PRESIDENT: Each of those members of the AHA are they?

PN335

MR HODGKINSON: They are.

PN336

THE SENIOR DEPUTY PRESIDENT: Well, I'll hear what the other parties have to say about your application for leave to appear. Mr Cooper?

PN337

MR COOPER: Commissioner, I would oppose their leave to intervene in this matter. In one of the matters that - - -

PN338

THE SENIOR DEPUTY PRESIDENT: We're dealing at the moment with leave to appear to apply for leave to intervene.

PN339

MR COOPER: Leave to appear because this matter is up for a directions in respect of the C numbers and we will wish to pursue with the matter of our C number 1918 of 2002 which is subject to a log of claims dispute finding by this commission. I think that leave to appear in this matter is not related as the parties to that dispute finding involve three parties, CMAA, the LHMU and the AHA and this association does not wish to be party to any internal problems that one of the parties may have with its membership so we're here to seek a modernised award in respect of coverage of hotel managerial staff. It's on that basis we oppose their application and leave to appear in this matter. Thank you.

PN340

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Cooper. What do you say, Mr Swanscott?

PN341

MR SWANSCOTT: Your Honour, as I understand it your original question was on whether Mr Hodgkinson should be granted leave to appear as a legal representative. I've no objection to that but of course that's without prejudice to the position we take on any substantive application for intervention.

PN342

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Swanscott. Do you wish to say anything, Ms Zeitz?

PN343

MS ZEITZ: I take it from that there's no objection to leave to appear for the AHA and I certainly have no objection to my friend.

PN344

THE SENIOR DEPUTY PRESIDENT: Mr Hodgkinson, I'll grant leave to appear. Did you wish to make your application for leave to intervene now?

PN345

MR HODGKINSON: Indeed, it would be most convenient that it be dealt with at the outset, your Honour. Can I hand up an affidavit of Mark Sant? The purpose of the affidavit as I've already indicated is to outline the factual position upon which we seek to rely.

PN346

THE SENIOR DEPUTY PRESIDENT: Just let me read that.

PN347

MR HODGKINSON: Certainly.

PN348

THE SENIOR DEPUTY PRESIDENT: Have you provided a copy of this to the other parties?

PN349

MR HODGKINSON: I've just passed copies down the bar table at the same time, your Honour.

PN350

THE SENIOR DEPUTY PRESIDENT: Just take a seat for the minute. Yes, Mr Hodgkinson?

PN351

MR HODGKINSON: The next document upon which I would rely is a chronology document. It's my understanding, your Honour, that the commission has already received certain correspondence which has been sent from time to time identifying the possibility of an intervention application on behalf of Accor and SCH.

PN352

THE SENIOR DEPUTY PRESIDENT: I've received copies of correspondence copied to me via electronic means. I don't know that I've received it all but - - -

PN353

MR HODGKINSON: I think it would be fair to say that you've received some of it. What we've done is produced a chronology which identifies we think relevant events for the purposes of considering the application and I hand that up.

PN354

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I have read that.

PN355

MR HODGKINSON: The starting point, with respect, is that the logs of claims have been served on the AHA in respect of that organisation and its members of which both of the corporate clients that I represent both retain membership of the AHA.

PN356

The next matter to identify is then the scope of the logs from which any award might emanate are sufficient to encompass the operation of those corporate clients and therefore impact of the business arrangements they have and the employment arrangements that they have with their membership. In that sense and in every real sense we say that there is a direct impact of these logs of claims and these applications being considered by the Commission on the activities of my clients, as affecting as it does their legal rights and obligations.

PN357

It is undoubted that if you were to make an award in terms of the scope sought within the logs and in terms of the scope sought within what we understand is at least a draught, then that award would impose upon my clients obligations that would be legally enforceable against them and in respect of which they would be required to comply.

PN358

Can I then go to the affidavit of Mr Sant, although I will do it briefly, essentially to identify that the corporate organisations are of some size and the consequence of that, we say, is this creation of legal obligations will have a significant impact. You will see, commencing at paragraph number 8 the description of the SCH Organisation notifying you in paragraph 9 that it operates or manages 28 hotels in Australia, has some 2400 employees and approximately 415 of that 2400 could be covered by the draft proposal or, put another way, covered by the scope of the logs that have been served in this matter.

PN359

If one then goes to paragraph 12 one sees that ACCOR is dealt with;

PN360

It is the largest accommodation hotel operator and manager in Australia.

PN361

And then you will see various trading names identified. It operates or manages 90 hotels in Australia, has some 8200 employees and approximately 1000 of those 8200 could be covered by the draft award of affected by the scope of the logs sought.

PN362

So the direct impact of which I have spoken is one of significance. We have for abundant caution, although we know that the coverage and scope of the AHA is well known to the Commission, attached as MS5 the eligibility for membership rule which demonstrates the capacity of the AHA to enrol and represent as members a wide variety of companies and employers operating in the hotel and liquor industry in Australia.

PN363

We say when one considers firstly the role of the AHA it is as a consequence of service on them that my clients are potentially bound by any orders made or awards made by the Commission. Secondly, one can see that the AHA has a vast range of membership the interests of which will not always coincide and will not always, certainly not within the scope of this application, necessarily be the same or even similar.

PN364

The chronology document which I have handed up identifies a number of dates and steps taken on those dates, importantly for present considerations, although prior to June of 2002 the fact of award proceedings had been notified the content of any proposal in respect of an award, had not been notified before 19 June to the ACCOR organisation and had not been notified for 26 June to the Six Continents organisations.

PN365

THE SENIOR DEPUTY PRESIDENT: So you say that those businesses, I will refer to them as, I will reserve 'organisations' for the Union and employer association, those businesses had no knowledge prior to June 2002 of the processes within the Commission to simplify the Hotel Managerial Staff Award?

PN366

MR HODGKINSON: They had no knowledge of the proposals in respect of that process. They were aware of the fact of the process but not what it was proposed would constitute the new award structured either as a consequence of the simplification process enlivened as it is by one of the applications.

PN367

THE SENIOR DEPUTY PRESIDENT: Where does it say that in the affidavit?

PN368

MR HODGKINSON: In the chronology document.

PN369

THE SENIOR DEPUTY PRESIDENT: But where does it say that in the affidavit.

PN370

MR HODGKINSON: It doesn't but in the chronology document we make it clear that each of the first occasions, one 19 June and one 29 June in respect of ACCOR and Six Continents respectively, but that was the first time that content was made known. For reasons that I'll come to that may ultimately be a lesser consideration required of you in the determination of the intervention application in any event because relying upon the principles in intervention applications in any circumstance where a party or potential party to an award or process adopted by the Commission which could result in the creation of legal rights can demonstrate that those legal rights will directly affect them then the principles of natural justice require that the Commission allow an opportunity for them to be heard and I'll come to why that is the appropriate approach to this question of intervention.

PN371

It's important to note and I'm sure that the Commission is well aware of it that intervention is of course a statutory consideration arising under section 43 of the Workplace Relations Act. Commissioner, can I take you and I will take you to some decisions both of the Commission in court session and - I'm sorry, the Full Bench of the Commission and in respect of the High Court dealing with the question of intervention. I won't deal with the cases at large. I don't want to take up the Commission's time and indeed I suspect that the cases and the principles are well known to the Commission but it is important to have the proper basis set out before the Commission.

PN372

If I first might draw attention to a decision of the Full Bench in the matter of the Federated Clerks and The Crown and the right of State of Victoria. I have a bundle of decisions which will be in order which they're referred. The bundle is large, the references are much more confined.

PN373

THE SENIOR DEPUTY PRESIDENT: I'm pleased to hear that, Mr Hodgkinson. You've been provided two copies to me, have you, is that right?

PN374

MR HODGKINSON: I thought only one but you can have two if you want them.

PN375

THE SENIOR DEPUTY PRESIDENT: I think these files are getting big enough as it is, thanks.

PN376

MR HODGKINSON: Commissioner, the first decision in the Federated Clerks and The Crown and the right of the State of Victoria. It's print K7272. If I just draw your attention very briefly to the first page under the heading "decision", second paragraph, you can see that the matter there arising arose out of the service of a log of claims and certain claims made in them for an award and that the question to be considered was whether or not the Crown in the right of the State of Victoria was to intervene. You'll remember in an historical sense that Victoria passed legislation getting rid of its own State Industrial Relations Commission and providing essentially no mechanism.

PN377

As a consequence of that there was a flurry in this Commission of applications for awards and the Victorian Government through various counsel opposed each and every one of the awards. This was one of that course of conduct. Importantly, if you would go to page 9, the Full Bench identifies in the second paragraph the question they there consider whether Deputy President Williams should have granted Victoria leave to intervene and then this is said:

PN378

His Honour would have had a duty to do so if Victoria had an interest such as to refuse ...(reads)... a denial of natural justice.

PN379

I just pause there. Essentially we say we have such an interest and that the cases to which I will take you will identify why that's the case but it is because the applications here directly affect the businesses, I'm happy to adopt that terminology, I see its appropriateness, the businesses that we represent and in doing that create legal rights and obligations which will bind those businesses. Then there's a reference to Re Grimshaw, ex parte Australian Telephone and Phonogram Officers Association and from which there's a quote but which in turn quotes The Queen v Ludeke, ex parte Customs Officers Association of Australia and draws from that decision, a decision to which I will take you directly, four principles. The first two are the most important for present purposes.

PN380

The third identifies the category or the discretion vested in the Commission to deal with persons not directly affected and essentially the proposition is that if you are not directly affected by the application there may still be in the view of the Commission a basis for the granting of intervention but it does not flow as a consequence of the principles of natural justice. It arises as a consequence of the exercise of the discretion conferred under section 43 of the Workplace Relations Act. That has importance we say, your Honour, because it creates the two categories of party that might seek leave to intervene which categories require different considerations. The first category is those directly affected. The second category is those indirectly affected.

PN381

I've drawn attention to that decision. I don't need to go to it further. I don't suggest by not going to other parts of the decision that you may not wish to look at them yourself. I'm trying to merely highlight those important sections from which principle can be discerned. If I could ask you then to go to, I think, the second case in the bundle which is The Queen v Ludeke found for the record at [1985] HCA 31; (1985) 155 CLR 513. This is a decision of the High Court and they deal with the question of intervention. Unfortunately it's not a joint judgment so one needs to look at the various judges' deliberations on the point. The first of those was the then Chief Justice Gibbs J.

PN382

At page 516 his judgment commences but I wish to draw attention at 519 to the last paragraph. His Honour says this:

PN383

The critical question is whether the prosecutor will be denied natural justice ...(reads)... to the limited extent allowed by Ludeke J.

PN384

Now I just pause there. The word prosecutor is used only because within the High Court at the time the means of taking such a case to the High Court was the prosecution of one of the prerogative writs. So it doesn't carry any particular magic.

PN385

THE SENIOR DEPUTY PRESIDENT: No, I am familiar with this decision.

PN386

MR HODGKINSON: But, importantly, what's being identified by the Chief Justice is the requirements of natural justice. Then his Honour goes on to say:

PN387

It may be said immediately that it is clear that notwithstanding the wide ...(reads)... the rules of natural justice.

PN388

Then there's a reference to the Angliss Group case and to the State Electricity Commission decision and then this is said by his Honour:

PN389

That means that a person whose rights will be directly affected ...(reads)... before the order is made.

PN390

Now with respect his Honour expresses it very clearly. If there's a direct impact as a consequence of the application being considered by the Commission then that person upon whom the direct impact is visited must be given a right to be heard.

PN391

That's a consequence of the Commission being bound by the rules of natural justice. I point without reading from it, to the balance of that page where his Honour deals with the indirect effect and the fact that the Commission retains a discretion in circumstances where there is only an indirect impact to grant intervention but makes it clear that in that circumstance, the rules of natural justice don't require the Commission to grant the right to be heard.

PN392

I then refer to Mason Js decision which commences at page 521 and draw attention to page 522, just above the middle of that page about point 4 there's a sentence commencing "In general the applicant is required." So:

PN393

In general the applicant is required to have an interest which is a substantial interest ...(reads)... rather than merely consequential.

PN394

That's another description with respect, along the same line, in different terms I accept but identified that what is necessary in the determination of these applications is to see whether the applicant for intervention has a legal liability which will be directly enlarged or diminished or a legal right which will be affected by the application being considered by the Commission. The next reference in a case to which I wish to draw attention is still in Mason Js judgment at page 527, you'll see at the top of the page and these words are used by his Honour:

PN395

Indeed, the principal object of intervention is to ensure that all interested parties will ...(reads)... of controversy in several proceedings.

PN396

With respect, my client's interests fall within that category by making the application to intervene we are identifying an interest which can be dealt with within the confines of the proceedings, thereby potentially eradicating any need for other sets of proceedings. Then if I could take your Honour to the end of the last full paragraph starting at about point 5 you'll see a sentence starting, "I do not doubt." So:

PN397

I do not doubt in some circumstances, the refusal of leave to intervene ...(reads)... affecting his rights or interests.

PN398

So his Honour has returned, with respect to him, to the concept that if you were in circumstances where the direct effect is made out to deny the right to be heard, it would in fact be a denial of natural justice, having earlier identified that the Commission is bound to provide or bound by the rules of natural justice. I then refer to Brennan J whose judgment commences on that same page, 627 and you will see that he opens by agreeing with the Chief Justice and if you would go then to page 528 at about point 9 on that page there is a sentence commencing "Generally speaking":

PN399

A decision that will affect adversely a persons legal rights or his propriety or financial interests ...(reads)... can be reasonably given.

PN400

What we would point to, of course, is legal rights, financial interests, propriety or financial interests and we also point to the fact that the opportunity can now be reasonably given, these proceedings thus far not having moved to beyond the conciliation phase in which my clients, if it continues in conciliation we'll, of course, participate if they are granted leave to intervene. But the opportunity exists at the present time.

PN401

THE SENIOR DEPUTY PRESIDENT: Just picking up that point, that need not necessarily be so, given what was said in the Digg's case about the option of limited intervention.

PN402

MR HODGKINSON: There is scope within the powers of the Commission to grant intervention generally or to grant intervention on terms, that is, to limit the capacity in which the intervener may participate in the proceedings. The first point I would make is that that concept would not in any way adversely impact on what Brennan J says in that paragraph that I've just read, that is, there is an opportunity in my respectful submission, in these proceedings for my clients to be heard.

PN403

Now, it may be that you would say that you would not wish to hear them for instance, in respect of the interests of, if I might call them, the pubs because they don't run or are not involved in the running of pubs, they are involved in the running of accommodation or residential hotels and you might see that there is no requirement for them to participate in the fact that these logs are wider than residential or accommodation hotels.

PN404

Let me assure the Commission of this, my clients do not seek to advance positions in respect of the interest of others, they seek to advance positions only in respect of their area of this industry. They acknowledge that these applications go wider than their area of this industry and in that they do go wider and in that the Commission and the other parties may deal with issues that are wider than their legitimate areas of business interests, they would not be seeking to participate, in any event.

PN405

If I could then draw attention to the judgment of Deane J which commences at page 529 of the report and in particular to page 530 and about point 3 on the page there is a sentence starting, "In hearings such proceedings the Commission" and continues:

PN406

Is bound to observe the rules of procedural fairness which are commonly referred to as the principles of natural justice.

PN407

The Angliss Group case is quoted again:

PN408

Whilst the precise content may vary according to the circumstances of the particular case ...(reads)... and adequate opportunity to be heard.

PN409

So again, his Honour has returned to this same approach, that is, identify that those who are directly affected by the application have a right to be heard as a consequence of the principles of natural justice, that leaving the other category who would be reliant upon the Commission's exercise of discretion in order to have an opportunity to be heard those people indirectly affect. At page 531 in the second paragraph on that page this said:

PN410

A person or organisation who makes application to the Commission for leave to intervene ...(reads)... of whether or not leave to intervene should be granted...

PN411

That is, of course, the opportunity it provided us with in the hearing of this application:

PN412

...whether any such leave should be subject to limitations or whether or not ...(reads)... or subjected to limitations.

PN413

So I draw attention to that, having already acknowledged that in answer to your question your Honour, that there is the capacity and we don't deny the capacity to the Commission to put some limitations and his Honour then goes on in the next sentence to say:

PN414

The commission will however be acting in breach of those principles ...(reads)... the decision in that regard. Unless -

PN415

and this is the proviso which we respectfully submit is important for present considerations:

PN416

... it appears that the non party has a direct interest in the proceedings ...(reads)... sought or proposed to make.

PN417

Now with respect the totality of that paragraph in my respectful submission comes down to this: if the party has a direct interest of the kind about which I have already addressed then the party has a right to be heard which right will be granted to it by the commission upon application to commission to intervene. The commission does not have to provide it with the opportunity if it does not seek it itself. That is the importance firstly the intervention process.

PN418

Secondly, that in order to discharge the obligations created by the rules of natural justice, the opportunity to the party directly affected is an opportunity to be heard in respect of its legitimate interests. Whilst the commission could impose upon such a party restrictions as to its capacity to participate, those restrictions could not legitimately be imposed in circumstances where they had the effect of denying the opportunity to be heard in respect of legitimate interest or to be heard in respect of only part of its legitimate interest.

PN419

So we would say in these proceedings you may well determine that you do not want to hear my clients as I have said by way of example in respect of pubs and what happens in pubs and what ought to be done in terms of the award but you would not in the exercise of your discretion in relation to intervention deny to my clients the opportunity to be heard in respect of the full gamut of their legitimate business interest. That is of course the importance of that affidavit to show you what type of scope that might have and why we have annexed to it those lists of companies and hotels that are affected through the two businesses that we seek to represent.

PN420

It is only important to note that Dawson J on page 532 agreed with the Chief Justice. Now the wash up of all of those quotations with respect is that the principles are clear and they are as we have stated them, the High Court essentially being in agreement although they may well have expressed them slightly differently. That case of course is the case that was referred to and relied upon by the Full Bench in that federated clerks decision.

PN421

Could I take you to one further judgment then, and that is the judgement in re Media Entertainment & Arts Alliance and Another ex parte O'Nell and Others [1994] HCA 1; (1994) 179 CLR 84 and that is also contained in the bundle. In this case, what had happened is that there was an award application made by the Media Entertainment & Arts Alliance and the employer party was Hoyts. There was a consideration given by the commission to differential junior rates.

PN422

Indeed the parties had not sought it but the commission decided that it was appropriate given what the commission had heard. Having made then the award a group of non union members who were junior employees sought to intervene in the proceedings to be heard in respect of the matter. No I do not want to go into further detail but that sort of sets the factual parameter. At page 92 of the report, the High Court refers to and relies upon the decision in Queen v Ladique ex parte Custom Officers, the decision to which we have been.

PN423

The importance of this decision is to note that the High Court, having had an opportunity in different circumstances to reconsider this question of intervention reaffirms what was said in Ladique's case and therefore restates those principles to which I have already taken the commission. It follows in my respectful submission that the intervention application made here on behalf of these business is one based upon the proposition that their rights and obligations as set out by the High Court and the various passages will be directly affected and as a consequence of the application of the rules of natural justice there would be a requirement that they be heard in the proceedings. Those would be the submissions in support of the intervention.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Hodgkinson. Mr Cooper, Mr Swanscott did you want to say anything now? Sorry I will perhaps ask the AHA first what their position is.

PN425

MS ZEITZ: Your Honour my submissions are relatively brief, we do oppose intervention and we do so on the basis that these submissions that my friend has put and the cases upon which he relies are not matters that we say to which the commission should attach great weight and we say it for this reason: there is certainly no argument that the business will be directly affected. Nor is there any evidence that the rights or interests of those seeking to intervene are not encompassed within the case that will be put on their behalf as members of the AHA.

PN426

The cases to which my friend has referred are all cases where are persons who had no other representation within the construct of the particular proceedings sought to intervene and represent that they had a particular interest, be that direct or indirect. The Hoyts case to which my friend refers quite clearly identified non union members who were not heard. The members of the union who might have disagreed with the view that their representative organisation took, did not apply and I daresay would not have been heard had they applied because the commission quite rightly would have said, if that is an internal matter within your organisation that is where it should be dealt with.

PN427

We say that the interests of the two organisations and their respective corporate identities and businesses that they represent are encompassed within the AHAs submission. The AHA, the commission will recall on the last occasion that this matter was in conference, indicated to the commission two things, one, that it was ready to proceed to arbitration in relation to what we understand to be the substantive issues in dispute in particular the classification and wage rates, and there are a couple other ancillary matters.

PN428

Secondly that the AHA oppose the making of an interim award to apply while that process was being undertaking. Now in those circumstances when the matter proceeds to arbitration, my client would envisage that given the great level of concern that has been identified both in correspondence to yourself and in the context of these proceedings. Both of the organisations would provide a lead role in the provisional evidence material facilities for inspections and the things that will necessarily go to ensuring that the commission is fully informed.

PN429

THE SENIOR DEPUTY PRESIDENT: Sorry to interrupt, both of the organisations you mean the AHA and the unions, do you?

PN430

MS ZEITZ: Yes, but I also mean in the context of the AHAs case bot Accor and Six Continents. They have made their position very clear and we would envisage therefore that their direct contribution to the presentation of material would be significant. We also indicate that, as far as we are aware, the chronology that was handed up to your Honour, I don't believe it has been marked - - -

PN431

THE SENIOR DEPUTY PRESIDENT: I understood it was a working document. I don't think there is any evidence to support it as an accurate reflection.

PN432

MS ZEITZ: I understand that to be the case. I could just indicate that on my instructions on 16 May at a National Accommodation Division meeting of my client's organisation which the Chief Executive, I think it is Mr Eisenberg of the ACCOR group attended, there was a full briefing given at that stage by the organisation regarding the process of these proceedings.

PN433

THE SENIOR DEPUTY PRESIDENT: That was 16 May 2002?

PN434

MS ZEITZ: Yes, that appears not to have been included, I assume inadvertently. We also indicate that through the auspices of the New South Wales branch, there have been meetings attended by both organisations during June and July where they have been given an opportunity to participate in discussion.

PN435

They have obviously, simply by the presence of my friend, indicated today in very clear terms the degree of their interest but we say that is capable of being adequately recognised through the AHA. It is a registered organisation in the Commission and all of the cases to which my friend has referred on that basis we would distinguish quite clearly from this application.

PN436

THE SENIOR DEPUTY PRESIDENT: Mr Swanscott?

PN437

MR SWANSCOTT: Mr Cooper has just gone out to make an urgent phone call. I indicate that the LHMU supports the position taken by the AHA in relation to the intervention. In one sense Mr Hodgkinson's position is reminiscent of Senator Murray in the Australian Democrats, a sort of back bench member of the AHA.

PN438

We agree that the cases cited are easily distinguishable as the clients that Mr Hodgkinson represents as parties principle as members of the AHA and the intervention application is, in essence, an application for dual representation for those interests. We say there is no denial of natural justice because as members of the AHA, the AHA represents the interests and reflects the input of all of its membership as that is a requirement of the Act. Without taking you to those relevant sections, sections 195 and 196 of the Act require the AHA to have rules which allow for the internal issues that have been foreshadowed to be raised within the registered organisation.

PN439

We note that in the submission that has been for intervention there is no evidence that the Mr Hodgkinson's clients have pursued whatever issues it is that concern them, although we still aren't clear on what they are, through the AHA's internal structures in accordance with the AHA's rules. Nor is there evidence that has sought to bring whatever issues it is that concern them directly to the attention of either the Club Managers Association or the LHMU.

PN440

THE SENIOR DEPUTY PRESIDENT: Have there been any approaches by them to speak with you about those matters?

PN441

MR SWANSCOTT: No. In relation to both sets of clients, Mr Cooper forwarded to me correspondence from the two instructing solicitors which sought opinions on their application for intervention but we have had no direct requests for any discussion and no information at all as to the issues that appear to be motivating the application for intervention. We are still, so to speak, in the dark as to what is agitating Mr Hodgkinson's clients in the simplification of an award which already binds those clients.

PN442

THE SENIOR DEPUTY PRESIDENT: Do you know how long Mr Cooper is going to be?

PN443

MR SWANSCOTT: No, but I can reasonably anticipate that he will adopt my submission.

PN444

THE SENIOR DEPUTY PRESIDENT: Do you know if he wants to add something?

PN445

MR SWANSCOTT: I don't know that.

PN446

THE SENIOR DEPUTY PRESIDENT: Perhaps I will stand the matter down for five minutes because I don't want to proceed without giving him that choice.

SHORT ADJOURNMENT [3.29pm]

RESUMES [3.35pm]

PN447

THE SENIOR DEPUTY PRESIDENT: Mr Cooper, did you wish to make any additional submissions?

PN448

MR COOPER: Yes, I would also like to apologise for my brief absence. I had to deal with something urgently. I anticipated this was a short directions hearing and my understanding was that if there was to be an argument about intervention that it may have been dealt with at a later time with separate hearings as such. I feel a little bit ambushed this afternoon by having this material put upon us. My colleague from the LHMU has advised me of what happened in my absence and I would support the position that the AHA and the LHMU has submitted.

PN449

Our approach to this matter, as the Commission is well and truly aware of, is that in good faith we have served a log of claims on an organisation purporting to represent a membership group and I intimated in my opening remarks to the Commission, all probably misguided, the fact that we thought that that log of claims and the negotiations we are trying to achieve, minimum considerations, conditions of employment and rates of salary covering a group of employees eligible to belong to both of the registered unions involved in these matters and also members of the AHA, we are seeking that area.

PN450

We feel a little bit disheartened that very late in the piece other members of the AHA have raised concerns about the way they are being represented and I believe that to be an internal situation with their organisation. We are negotiating with the AHA, we have served a log of claims on that organisation to move forward with a modernised award. We are trying to seek to identify that the old 1974 award is dead in the water, it is out of ambit through a log of claims which the Commission has identified and we wanted to move forward.

PN451

I find this process of intervention of parties who belong to a registered organisation most unhelpful to progress the matter further. We are still, at this stage, with all the communications received from these purported interveners, of what any of concerns are. We have sat down across the table with the AHA on numerous occasions to pinpoint what matters of concern they may have. We have identified those concerns and accommodated those concerns. With the assistance of this Commission we have gone through a check-list of those matters and tried to accommodate them through transitional clauses and a recommendation to the Commission which has tried to assist the parties to progress it further.

PN452

We took a step further to that, which your recommendation was suggesting a level A and B managerial position as a minimal consideration. What we took the further was saying to have the one classification level to at least put in place a minimum rate of salary for a hotel manager. I think this intervention is very much an interference with this process before the Commission at the moment. Thank you.

PN453

THE SENIOR DEPUTY PRESIDENT: Mr Hodgkinson, do you want to say something in reply?

PN454

MR HODGKINSON: I do. The AHA's attitude is surprising. It is surprising in the sense that we have notified the AHA of the intention to intervene, we have sought from the AHA assurances that the interests that we would seek to represent here would be represented in their submissions and we have proposed a mechanism for those interests to be represented, which was denied to us by the AHA.

PN455

Now, it's a bit contrary, I have the exchange of letters that demonstrates that, being letters from Clayton Utz dated 2 August, another letter dated 5 August, that was in response, and then final response dated 6 August from the AHA. I can hand those letters up.

PN456

THE SENIOR DEPUTY PRESIDENT: I think I have been copied in those letters.

PN457

MR HODGKINSON: I think that's the case, and I certainly - you may not have been copied in relation to the letter of 2 August, proposing a protocol.

PN458

THE SENIOR DEPUTY PRESIDENT: I believe I was but I'll have a look at it, that might be the best way.

PN459

MR HODGKINSON: I'll just hand up those three letters just in case, I have copies of them.

PN460

THE SENIOR DEPUTY PRESIDENT: Yes, I have seen that.

PN461

MR HODGKINSON: Thank you. Now your Honour, the first proposition we advance is this. My friend's attempt to distinguish had to acknowledge that direct legal rights were affected by this application by my clients. The High Court didn't make the distinguishment, the High Court said if you are a person seeking to intervene and you can establish direct rights being affected, then natural justice requires that you be heard.

PN462

THE SENIOR DEPUTY PRESIDENT: Why can I not rely upon the principle that organisations represent their membership?

PN463

MR HODGKINSON: Well, for two reasons. Firstly the AHA have not provided to you any basis upon which you could determined that they were able to adequately represent the interests sought to be articulated by my clients, particularly in circumstances where my clients have taken the step of coming here today prepared to argue this matter. That is, there must be at least a gulf between the AHA and its interests, and those interests that my clients seek to articulate.

PN464

The second proposition is this, that the AHA has a wide variety of membership, and I refer to this in the opening remarks that I made in support of this application. It may well be legitimate for the AHA to adopt positions in support of that wide membership, and you will note in the letter of 6 August they refer to 8000 members.

PN465

THE SENIOR DEPUTY PRESIDENT: Sorry, but the conduct of the affairs of the organisation are regulated by the rules of the organisation, and it seems to me that wide variety of membership could be accommodated under the rules of the organisation. It may be voting because of the size, it may be by other means, but the fact that the rules provide for the management of the organisation itself must be taken into account, I think, in determining that the AHA is here as an organisation representing its entire membership.

PN466

MR HODGKINSON: Indeed, but the sections of the Act to which you refer, section 195 to 196, they are general mechanisms for management of an organisation. Nowhere in those mechanisms is there a requirement that an organisation articulate on behalf of a particular section of that organisation, a view that that section wishes to have expressed to the Commission.

PN467

THE SENIOR DEPUTY PRESIDENT: What I am saying is the rights of the varying interests of the members of an organisation can be regulated by different voting rights, for example.

PN468

MR HODGKINSON: That may well be the case depending on the rules, that's quite clearly right. The High Court makes it clear when you are faced with an actual intervention application, what you have to determine firstly is are there direct effect by the application on the legal rights or obligations of the parties seeking to intervene. If that is determined in favour of a direct effect being established, then in accordance with the rules of natural justice you must provide them with respect, with a right to be heard. That's all we week.

PN469

THE SENIOR DEPUTY PRESIDENT: I haven't heard any objection to the proposition that their legal rights are directly affected, or will be directly affected, by an award of the Commission. What I am saying is they are members of the AHA, as I understand it, and I am entitled as I understand it to rely on the fact that the AHA is here representing their rights, and in that way they are being heard.

PN470

MR HODGKINSON: You cannot be satisfied of the last part of that, with respect. There is no basis for determining that the parties that I seek to represent are in fact being heard. The only thing you could determine is that the AHA is a registered organisation and therefore must have management rules in compliance with the Act, and secondly that it is here, what you can't determine is that my client's rights are being articulated in the course of the AHAs submissions, whatever they may be, at any particular time. That is more the case when you are faced with an actual application or intervention, because it's not a question of just saying, there's an organisation that could look after your interest.

PN471

What you have to determine in accordance with the authorities is, do you have an interest, if you have an interest I need to give you a right to be heard. The other problem created by the AHAs approach is an incredibly artificial one. What it forces upon my client is consideration of resignation from that organisation. They don't participate in the industrial landscape of Australian life, they participate fully, they participate in an sense of being long-standing members of the industrial landscape. They come here to the Commission seeking an opportunity, which they say is being denied to them by the association, so that their positions can be determined. They're not seeking a position to have anything other than you consider their position and determine it in the totality of this matter.

PN472

You will remember that quotation that I took you to that said it was desirable to have one proceedings, rather than a number. If my clients were simply wishing to step outside or snipe, if you like, what they would do is sit back and then put revocation applications on, or something of that kind.

PN473

THE SENIOR DEPUTY PRESIDENT: But what does the Commission do in circumstances where all of the members of the organisation want to come along and be heard, do you allow everybody in?

PN474

MR HODGKINSON: If that may have to be the case in appropriate circumstances, yes.

PN475

THE SENIOR DEPUTY PRESIDENT: And in circumstances where there is no evidence that any one of them has made any endeavour to negotiate with the organisations concerned about their particular interest.

PN476

MR HODGKINSON: The problem with that is that's horse and cart stuff. What we have got here is the two organisations clearly stating, we are negotiating with the AHA. What will happen as a consequence of the grading of the intervention application is that they will see another party and they will no doubt be prepared, as my clients are, to negotiate with that other party. But at the moment what they say is, we are negotiating with the AHA.

PN477

That's all we have to negotiate, we don't have to deal with anybody else, so that you've really got to grant the intervention in order to create the circumstance for the negotiation itself, in that undoubtedly the Commission would, given the process of the matter to date which has involved a series of Commission sponsored negotiations and initiatives, want the parties to participate in that. That will be created by the granting, not the denial, of the application. You have of course got the correspondence which does establish that between my clients and the AHA, my clients tried to establish within the AHA an acceptable process whereby their interests were in fact going to be represented in that negotiation process.

PN478

THE SENIOR DEPUTY PRESIDENT: But they are seeking to run the whole show by directing the AHA to do only what they want. I know they put a qualification on it, but is it a real qualification?

PN479

MR HODGKINSON: Yes, it's a qualification as to reasonable, firstly, that must mean it has a confine in terms of their legitimate business interest, it can't be wider than that. Secondly, it has a process of discussion in which they have an input.

PN480

Now, the AHA in the representation of its other membership may well have other positions but what cannot be denied is that my clients are here seeking that opportunity to put to the commission at an appropriate stage in proceedings, that is, the proceedings are not near end, the AHA tells you today that they oppose the making of the award and they oppose the making of the interim award and they want the matter to go to arbitration. So that clearly the case or cases because there are four separate proceedings are not at end. It's not just as it was suggested a case of simplification for also the award or logs of claims on which awards are sought to be dealt with - - -

PN481

THE SENIOR DEPUTY PRESIDENT: The simplification process is virtually finished. The only thing that needs to be done with that is the setting aside of that former award. The only matter that is really of substance so far as your clients are concerned is the making of the new award, the section 99 dispute matter.

PN482

MR HODGKINSON: It would quite clearly but those matters have become encompassed in a process where the commission is being asked to deal with a package if you like which is not either an inconvenient or inappropriate package. One could readily understand why the parties have asked the commission to deal with the concept of simplification, rescission and new awards in respect of the particular industry at one time. It seems to have a practicality to it.

PN483

THE SENIOR DEPUTY PRESIDENT: Are your clients aware that the arbitration will not take place until November?

PN484

MR HODGKINSON: Yes, they are.

PN485

THE SENIOR DEPUTY PRESIDENT: Well, in those circumstances would they not have sufficient time between now and then to, in accordance with their rights under the rules, have the AHA take note of their positions and represent their interests?

PN486

MR HODGKINSON: We'd say there's no direct way of doing that within the rules of the AHA and in terms of the approach of the AHA even to the extent that they stand here and object to the intervention that there's unlikely to be agreement at this point about that process. Now, as I put earlier what that really forces is consideration by my clients as to whether or not they ought remain members of the AHA. That in a real sense is an artificial constraint that the commission wouldn't encourage.

PN487

The commission would encourage the opposite but by denying the right to be heard in circumstances where they feel strongly enough to have articulated this application then that consideration becomes a real one and they may well choose in order to preserve their rights or to have their position protected to reconsider membership of the AHA. What that does then is fragment the commission's process because there would then be a need for roping in and the like if that was going to be pursued or alternatively there would be a need for a different proceedings to be commenced. Whether that whole process can take place within the framework presently contemplated by the commission is of course dependent upon what actions undertaken and how quickly by the various parties that would have to move that process.

PN488

That's not a desirable outcome. It's not a desirable outcome for anybody, in particular with respect not for the commission but that is a legitimate course that is required to be thought through and potentially acted upon if the intervention application itself is denied.

PN489

THE SENIOR DEPUTY PRESIDENT: All right, did you wish to say anything else?

PN490

MR HODGKINSON: No, those - - -

PN491

THE SENIOR DEPUTY PRESIDENT: There are two cases I want to have a look at, and if I propose to refer to those in the decision I finally make I will first of all provide copies of the two parties to you.

PN492

MR HODGKINSON: I am indebted to you.

PN493

MS ZEITZ: Your Honour, I don't wish to go tit for that on this, but I would just like to place some very minor matters on the record, not necessarily for you to take into account but for the purposes of publicly assuring the organisations that the AHA will through its internal mechanisms ensure that they are heard, and their concerns taken into account, and to refer by way of illustration to the recent variation to the hospitality industry award where the casinos had substantial divergence of interests between themselves, and the AHA was able to successfully represent and identify within the proceedings those concerns.

PN494

That is a matter of public record, and quite specifically accommodates the concerns that had been raised and accommodated those individually before the Commission. I simply refer to that, I don't specifically ask you to take that into account in your deliberations. You have other issues, but that concern having been raised I wish to place on the public record, if the Commission pleases.

PN495

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN496

MR HODGKINSON: I'm sorry, your Honour, what I want to say in answer to that is what's demonstrated in the chronology is that that facilitation has not been provided to date, and my clients have to act in the particular circumstances of this case in light of those facts.

PN497

THE SENIOR DEPUTY PRESIDENT: Yes but again, I repeat what I said before, the arbitration is scheduled for November, why wouldn't your client have an opportunity in that intervening period to make such representations at it wishes to make to the organisation?

PN498

MR HODGKINSON: Firstly, I repeat but only very briefly what I said, that is that the rules of the AHA don't provide that direct capacity for a group of members, who might represent a significant part of the industry in total, to themselves direct the AHA. Secondly can I add another practical consideration, it's one that I didn't raise before.

PN499

The potential is that if one were to leave it to that process, and it didn't take place to the satisfaction of my clients, it would prejudice the hearing. That is, my clients might come and say we have done X, Y and Z, undeniable attempts to have the AHA recognise its interest, which interest could be objectively determined as being legitimate, and undeniably have that attempt frustrated or rebuffed by the AHA, leaving my clients the position of seeking to have the whole process of the Award adjourned in circumstances where the Commission, I respectfully submit, would have to have regard to those facts.

PN500

Now, that's not a desirable thing either. My clients really, by making this intervention application, are facilitating. If it left to a time between now and November, the process that the Commission presently envisages, in which my clients seek to participate, may well itself be frustrated. That as I put is not a desirable outcome, nor something that my clients seek to achieve, but it is a real and practical consideration. I have just been given some more information in terms of communication and state branch structures and the like, but I think the position we have advanced to the Commission is that which is demonstrated by the chronology.

PN501

It's all very well for the AHA to stand up here today and say "We'll look after these people, we'll advance their interests". They haven't done it to date, the mechanisms within the AHA have not provided a basis for it to be done to date, and there is no basis for determining that any mechanism within that organisation will provide that opportunity for the future. It's simply not there, and in those circumstances my clients have been forced to the position that they articulate today, a position consistent with authority.

PN502

MS ZEITZ: This is something completely different, your Honour. I note that originally this matter was listed for directions and there are a number of matters, do I understand that your Honour is now going to adjourn to consider this application?

PN503

THE SENIOR DEPUTY PRESIDENT: Yes, I won't take long, there are just two recent Full Bench decisions that I know talk about representation and rights of organisations and things like that. Does any party have a proposed set of directions that they want me to consider?

PN504

MS ZEITZ: We haven't got that far because of - - -

PN505

THE SENIOR DEPUTY PRESIDENT: I will adjourn, it shouldn't take too long for me to reach a decision.

SHORT ADJOURNMENT [3.59pm]

RESUMES [4.29pm]

PN506

THE SENIOR DEPUTY PRESIDENT: I've provided the parties with a copy of those of the Full Bench in print PR913519 which really deals with the issue of the representative capacity of an organisation and not directly with the question of intervention. Do you wish to say anything about that, Mr Hodgkinson?

PN507

MR HODGKINSON: Certainly, your Honour. With respect, an analysis of the decision which I have to hastily add has been undertaken hastily because I wasn't aware of the decision, supports the propositions that we have advanced here and supports the appropriateness of the intervention at this stage in the proceedings. Your Honour, although it's a little laborious, would you mind if I took you through the decision to make out that proposition?

PN508

THE SENIOR DEPUTY PRESIDENT: I don't mind, no.

PN509

MR HODGKINSON: If one goes to paragraph numbered 4 at the beginning of the second page, I'm sorry, I should start with this, this is clearly an application originally dealt with by the Commissioner under section 127 arising out of some unauthorised stoppages. Paragraph numbered 4 identifies that during the course of those proceedings before the Commissioner the representatives of each union appeared but no individual employees appeared.

PN510

I just pointed that out because what we find is that nobody made an application to the Commissioner during the course of the proceedings that there ought be a right to be heard or that there was a contrary or different position to be advanced and the like and that was the first vice, with respect, in the applicant's case and found against them ultimately but importantly, is very different to what you are faced with. Here my client has come along at an appropriate time in the primary proceedings and say, we have this position to be advanced and we wish to be heard.

PN511

Then paragraph numbered 5 identifies that there are three appeals and sets out those matters, the background is set out and I don't need to go to it in any detail but at paragraph 26 this is said:

PN512

At the commencement of the hearing of the appeal on 23 January 2002 ...(reads)... of their respective organisations.

PN513

They were granted that. So they were granted the right to be heard on the question of the appeal, that is, the substantive issues that they wanted to raise before the Commission, albeit they are raising it in the context of an appeal which brings with it some limitations, which limitations may not have been and were not, in my respectful submission, relevant to the primary proceedings. Then one sees in paragraph 28 in the italicised words that the issue is the question of service, is service on a registered organisation effective on its members as a general proposition and in the context of a section 127 application.

PN514

Now, I pause there, I'll come back to it but that is, of course, a very technical matter, what is here being drawn to the attention of the Full Bench is a proposition that service in a section 127 case or maybe even wider, upon an organisation doesn't allow the Commission to bind the members of that organisation by the order of the Commission. That is, of course, not our point. We don't deny service, we don't say service hasn't been effected, we are not taking that sort of technical point, we are trying to participate in the merits of the matter before at an early time and at a relevant time.

PN515

if one then goes over in paragraph numbered 30 on the next page, again in the italicised words at the top, one sees that the questions that were to be articulated:

PN516

The appellants were denied natural justice as they had not been given the opportunity to be heard and they lacked jurisdiction.

PN517

I'll make this out in the further analysis but the relevant part, of course, is this, the first of those questions not the jurisdictional point, that doesn't impact on your considerations in this matter but the first of them is one that might be seen to have an impact, that is, a denial of natural justice. So one would say, well, maybe there is a position that ought be considered given the basis upon which we've advanced the argument here.

PN518

I'm sorry, your Honour but if we go then to the first, it's a little bit torturous but if you see the submissions of the appellant, denial of natural justice, the appellant has cited R.V. Moore ex parte State of Victoria 17, if you go over then to page 18 you see that 17 is a decision in 140 CLR, it's therefore not Ludeke's case. I don't see and again, I may be wrong because I have only looked at it quickly, I don't see that reference was made to Ludeke's case.

PN519

THE SENIOR DEPUTY PRESIDENT: No, it wasn't.

PN520

MR HODGKINSON: In this matter. So they are relying on this natural justice point. Essentially what they are saying, we were not served, we the individual applicants or appellants now, were not served because you only effected service on the organisation and that wasn't service on us. As a consequence of us not being served we are entitled to come to the Commission and say, we didn't have notice of these proceedings and we haven't had an opportunity therefore, to be heard. That was essentially what they were arguing in this case.

PN521

Very different to what we are saying, we are coming along seeking that opportunity at a proper time and as we'll see from this decision, it seems that the appellants in this matter did not seek the opportunity before the Commissioner and with respect, that is a very telling point in this decision. If one then goes to paragraph numbered 35 - - -

PN522

THE SENIOR DEPUTY PRESIDENT: Their argument on that was, well, they had no notice, they weren't service, so they had no notice.

PN523

MR HODGKINSON: That is right, your Honour. What we see is that the Full Bench effectively says, wait a second, you guys were hiding the background, you knew everything and so, you are really relying on a very technical point as to service and if you fail on service, then your natural justice point fails too because if you were served, then you had notice and you didn't go to the Commissioner and you didn't seek from the Commissioner the right to intervene and be heard.

PN524

Whereas here we've come to the primary proceedings seeking that right to heard and it's really on the basis that they didn't do it in the primary proceedings because of this technical approach to service, that this Full Bench determines that there was no error on the part of the Commissioner. They aren't asked because it wasn't a live issue in the proceedings to consider whether had there been an application for intervention, the Commissioner ought to have granted or refused it, they are not asked to consider that and they don't consider it, with respect which is very different to what you are asked to consider in this matter.

PN525

So I just note paragraph numbered 35, I don't need to repeat it. Then going over to paragraph 42, just again, to set the context, when the hearing commenced it appears that the two union representatives stated that they appeared in the interests of the union but not for unnamed union officials, being shop stewards or delegates and unnamed employees. They didn't identify anybody, they just said, unnamed. We'll see that the Commission says that was much too little and much too late in the process.

PN526

But what they certainly didn't do at that point on either as individuals or as a collective, was seek to appear before the Commissioner. Going then to paragraph numbered 47 there is a reference to the registered organisation being an entity in its own right:

PN527

That relevant consideration is not the principal issue in this case.

PN528

The principal issue is whether the respondent employees in a 10X order is binding were denied natural justice by not being given an opportunity to be heard on the application. Just pausing there, because they say they weren't served with the application. That's really the basis as is made clear. In paragraph 48 the question is:

PN529

Whether the procedures that were adopted before Commissioner Hingley were adequate in the practical sense for the purpose of the case in hand.

PN530

Then at 49:

PN531

We think the employer applying to the Commission is entitled to rely on the representative character of the registered organisation.

PN532

Pause there. In circumstances where neither by the union representatives or by the individuals who were later asserting that they hadn't been served was the Commission told that that point was to be taken. The Commission makes that clear by bringing the notice of the application to the attention of the relevant class of employees, members of the organisation who may be subject to the order. Going over the page, paragraph 52:

PN533

In our view the CEPU and the AMWU announced at the commencement of the hearing before a Commissioner, were ineffective as a means of the appellants avoiding service.

PN534

So they have returned as they had to, to the question of service or notice of the proceedings. So they are saying, as at that time that they can't say that they didn't have notice. Then 53:

PN535

In this context we note that despite the Commissioner's announcement at the time of the adjournment on 12 November -

PN536

I just pause there. I didn't refer to it but it is clear from the earlier fax that that was an adjournment sought by the unions in order to properly present their case. But no directions as to service were made. The unions sat in silence and did nothing to disabuse the Commission or the respondent o f any presumption as to service on or notice to the appellants of the proceedings. Can I just extrapolate that into this case. If we sat on our hands and you made a decision and we said we didn't like it, we went off to the appeal bench and we said, we didn't have a right to be heard. Then what they are saying is that you in your circumstances where we don't seek a right to be heard are entitled to a presumption of regularity if you like.

PN537

A presumption that the organisation of whom my clients are members is representing them. A presumption that their interests are being protected as are the unions who have served the logs and who are processing the claim. But that's not this case. This case now has a very significant additional factor and that's the fact of this application itself. The fact that it is made at this time, at a relevant time in the proceedings, when the proceedings not only haven't concluded and certainly in the arbitral sense, haven't commenced. So it's a very different circumstance that's been dealt with.

PN538

Then returning to the decision at paragraph 54, in our view the CEPU and the AMWU had a duty to inform the Commissioner to put the respondent on notice at the time of the adjournment on 12 November. But not only were the unions not appearing for the appellants, but they were not accepting service of the application for and on their behalf to announce the commencement of the proceedings, etcetera. Then in the last sentence:

PN539

This would have allowed the respondents to apply for and the Commissioner to pronounce if he considered it appropriate to do so directions as to service.

PN540

So what the Full Bench are doing is saying, well look this issue might have been a legitimate issue before the Commissioner. If you had brought it to the notice of the Commissioner and the parties at the relevant time and then the Commissioner would have, if he wanted to, or if he thought it appropriate to do so, made some directions to overcome that proposition so that you would have your right to be properly heard. That is directions as to service. So they are acknowledging, with respect, in that paragraph the potential that those individuals may have sought either by the unions informing the Commissioner that they didn't consider service appropriate, or alternatively, themselves seeking to intervene and saying, we're intervening for the purposes of saying, we want a right to be heard on this question as to whether or not we have been served.

PN541

But however it arose it was a live issue not brought to the Commissions attention at the relevant time, contrary to this case. In paragraph 58 as the resumed hearing on 15 November, the unions appeared and defended the respondents application. Then there are three names identified along with the AMWU site delegate, Mr Rodwell sat in the body in the hearing room. Those people as I understand this decision became free of the appellants. So what the Commission was saying is, look this very technical point you are raising it wasn't a real point in the sense that you can't say you really didn't know about it, you're doing it as a matter of technicality, this service point. Because you were sitting in the room while the submissions were being made.

PN542

My clients and that's ultimately what is said against these appellants. My clients have taken a different view. They have taken the active view. They have said, well okay, we accept that there are proceedings on foot before the Commission. We accept that they have the potential to impact upon us and therefore given that we have a view that we want articulated to the Commission and we want the Commission to consider in that process, we are coming along at an early relevant time seeking the right to do that. In that sense we are doing exactly what this Full Bench said these appellants should have done but didn't do. Ultimately that's why they found against them.

PN543

Over the page it's clear that the earlier persons named the delegates that they are representatives of the appellants. That's in the first two lines of that page. Then paragraph 61, again they return to the union delegates and to the same four named people. They say in the second last sentence. They were informed of and attended the hearing on 15 November but they chose not to participate, very important with respect to a consideration relevant to this matter. My clients, yes, they had been informed, they have acknowledged having been informed and they had already acknowledged that by copying to you correspondence which made it clear that they were aware of the process and the proceedings. But they have chosen to participate.

PN544

They have taken the step that the Full Bench said was necessary in this case. In our view the appellants were at least constructively if not actually notified of the hearing. Therefore, if they wanted to exercise a right they had an opportunity to do so. Paragraph 62 and the circumstances where the appellant has had as we found notice of the hearing and chose not to participate and failed to give advance notice that they were unable to be represented. There was no denial of natural justice. So here, with respect, and ultimately the Full Bench finds on that basis. No denial of natural justice, on that point they lose. Then they deal with the jurisdictional point that I don't need to go.

PN545

THE COMMISSIONER: But the underlying fundamental aspect of it was that the union said it was not representing the interests in its members. It expressly disavowed any representation of the interests of the members.

PN546

MR HODGKINSON: What it said is, we don't represent unnamed delegates and unnamed employees. It didn't identify that that was the totality or some sub group of the employees or delegates.

PN547

THE COMMISSIONER: But that was all of the employees and all of the delegates because - - -

PN548

MR HODGKINSON: It didn't, with respect, it didn't say that. It just said, unnamed.

PN549

THE COMMISSIONER: Yes, but that was the thrust of the argument. You're right but it didn't name any employees and the order ultimately named their delegates.

PN550

MR HODGKINSON: The thrust of the argument was that the group of employees that those delegates sought to represent at the appeal proceedings were not being represented, fitted with the category unnamed employee.

PN551

THE COMMISSIONER: Nor were any of the employees who were bound by the order

PN552

MR HODGKINSON: What the Commission says, with respect, if in circumstances where you don't put us the Commission or importantly the other parties, on notice that there's a particular problem or a particular position or that you want to be heard, you can't later come along and say, we didn't have a hearing, we were denied our natural justice rights to be heard. Because you had your rights, you just chose not to exercise those rights in the primary proceedings. What this decision doesn't say, is if before the Commissioner those unnamed employees or those unnamed delegated or both had sought a right to be heard before the Commissioner that it should be denied them because the organisation was there. With respect, the contrary seems to be the flavour of the decision, it doesn't deal with the issue at all.

PN553

But the contrary seems to be the flavour of the decision because the Commission keeps returning to the proposition and the unnamed employees and delegates made a choice. That they were in fact on notice of the hearings and made a choice not to participate.

PN554

That really indicates in my respectful submission that that choice was available to them otherwise the Full Bench would have said well we don't even need to consider that because we had before us the organisation and there is no substance therefore you being members of the organisation that doesn't seem to be a disputed fact in this matter. There is no basis therefore that you would be ever separately represented in any event. The Commission certainly doesn't say that. That's not what this decision turned on. Rather it turns on the opposite. You had a choice and you didn't exercise it. You did not take that step to notify the Commission that you wanted an opportunity to be heard which opportunity now you say was denied to you and because you had that opportunity but didn't take it we are not now going to give it to you. So with respect it actually supports our proposition in my respectful submission.

PN555

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hodgkinson. Ms Zeitz, did you want to say anything about it?

PN556

MS ZEITZ: Yes, your Honour. Firstly I note that the individuals identified appear to have been delegates and therefore had some standing within the context of the organisation's rules and perhaps can be distinguished somewhat from the situation that's specifically before you. What the AHA says simply is this. There is no evidence because nothing has been put that the view that is sought to be articulated by the businesses that are represented by my friend will not be articulated in due course at the arbitration of this matter through the representation of the AHA. Nothing has been put that suggests that that will occur. So we say in the context of this decision that is supported and I refer in particular to paragraph 51 where it says:

PN557

In our view it would be incongruous and otherwise contrary to the process ...(reads)... after service had been effected.

PN558

And then refers specifically to the objects of the Act and in particular to section 3G:

PN559

Ensuring that employee and employer organisations registered under the Act are representative of and accountable to their members and able to operate effectively.

PN560

We say that is the guiding principle in the context of the matter that is currently before the Commission. We say that the representative capacity of the AHA provides an opportunity to be heard. I note that this matter proceeded by way of appeal and I understand it would have proceeded under section 45(3)(b) of the Act which talks about giving standing to the people who are bound by a decision of the Commission. Members of the AHA would be bound pursuant to section 149(1)(f) of the Act. So to that extent it also distinguishes the facts that were before the Commission for hearing in the matter that you've raised with us and we simply say this.

PN561

If there is a circumstance where it can be demonstrated that a party has been denied natural justice in relation to the internal rules of its organisation certain rights arise and they can be dealt with - - -

PN562

THE SENIOR DEPUTY PRESIDENT: Under the Act or under the rules?

PN563

MS ZEITZ: Under the Act and under the rules but there is no evidence before the Commission that this in fact is the case. In those circumstances we say that this decision supports the submission of the AHA that the Commission is entitled to rely upon the representative capacity of the AHA in relation to the matter that's currently before the Commission, if the Commission pleases.

PN564

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Cooper, do you want to say anything about it?

PN565

MR COOPER: I just concur with the comments made by the AHA.

PN566

MR SWANSCOTT: Your Honour, the only point that I would add apart from supporting the position taken by the AHA and Mr Cooper is that in our view the position is set out in paragraph 49 of the decision and in particular in the quote from Stark J in the Burwood Cinema case:

PN567

An organisation registered under the Arbitration Act is not a mere agent of its members ...(reads)... together in the organisation.

PN568

Thank you, your Honour.

PN569

MR HODGKINSON: Your Honour, just briefly my learned friend from the AHA says there's no evidence that the view sought to be articulated will not be articulated by them. There are two problems with that proposition. Firstly they haven't articulated any view because they haven't had an opportunity to, it's not at that process and the second problem is that what it would mean is that you review what they say knowing that you've got issues that you want to advance to the Commission. You then say well they didn't put it or they didn't put it properly or they didn't put it as well as we wanted or they didn't put it forcefully or whatever you want to say about it but at a time when the Commission's process in its primary function is already completed.

PN570

So that is you put yourself right in the same position as these appellants in the decision to which you've drawn attention, that is, the Tennex Defence Pty Limited decision, and you come along to the Appeal Bench saying well we were denied our right because our association didn't put what we wanted to be put. That is exactly what this Full Bench was saying you don't do. If you've got a position and you want to articulate it you get in there at the first reasonable opportunity or you lose your opportunity. To put it into football terms, use it or lose it, and that's what's happened. You see that's the very very stark and significant difference between what was happening in that Tennex Defence matter and what's happening here.

PN571

My clients have come along at the primary time, at the right time not in a frustrative way, not in a way as is this case hiding behind some technicality and then trying to snipe at it later but seeking an opportunity to participate in the merits and that's the opportunity that shouldn't be denied them.

PN572

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hodgkinson. In this matter Mr Hodgkinson who has been given leave to appear on behalf of ACCOR and Six Continents each of whom are members of the AHA seeks to intervene or seeks leave to intervene in this proceeding or proceedings. AHA has a vast range of membership Mr Hodgkinson submitted with a divergent range of interests. He submitted that the Commission's exercise of powers in respect to the matters presently before it will directly affect the interests of the entities that he represents and as the Commission's actions will directly affect the interests of those entities it would be a denial of natural justice if they were not given an opportunity to be heard.

PN573

Ms Zeitz on behalf of the AHA opposes intervention. Ms Zeitz submitted that there was no evidence that the rights of the entities represented by Mr Hodgkinson will not be protected and the AHA is in fact opposing the making of any interim award and on that basis the membership will have sufficient or adequate opportunity to put its position within the AHA as an internal matter prior to the award or the proceedings before the Commission being arbitrated.

PN574

Mr Swanscott on behalf of LHMU and Mr Cooper on behalf of the Club Managers Association support the position of the AHA generally. I propose at this stage to refuse leave to intervene despite the very eloquent submissions of Mr Hodgkinson on the basis that there is no evidence so far as I am aware before me at the present time to indicate that the membership of the AHA including those that Mr Hodgkinson represents will be not given an adequate opportunity to have their interests represented by the AHA.

PN575

In refusing intervention at this point in time I do so without prejudice to the rights of those parties to reapply for leave to intervene at the point at which the matter is listed for arbitration of the applications. I will publish more substantial reasons for my decision over the course of the next couple of weeks. Ms Zeitz?

PN576

MS ZEITZ: In the break we took the opportunity to consider what might be appropriate directions and could I just advance those at this stage for the ongoing issue.

PN577

THE SENIOR DEPUTY PRESIDENT: What do you say I should do then? There was a proposal for the making of an interim award, you obviously opposed that or the AHA opposes that. It seems to me as there is opposition to the making of an interim award that matter would have to be determined after hearing relevant submissions or evidence from the parties in the amendment.

PN578

MS ZEITZ: Your Honour I was going to propose if you like a parallel approach, the first would be that the AHA will advise its members of the current standing of the matter and seek their views regarding the issues in dispute for the schedule arbitration and that those views would be forwarded to the unions by 20 September. The LHMU and CMAA have indicated that they are prepared to respond with with any proposal that they may have that would effectively define the ultimate issues for arbitration by 27 September.

PN579

That any issues remaining in dispute to be the subject of arbitration in November would then be subject to the parties providing a schedule of proposed inspections to the commission and each other by 18 October.

PN580

THE SENIOR DEPUTY PRESIDENT: Sorry what was going to be provided by them?

PN581

MS ZEITZ: A schedule of proposed inspections, if any. That by 25 October the parties would provide to the commission and each other an outline of their respective submissions, any material upon which they intend to rely in support together with any witness statements in relation to evidence that they may propose to call.

PN582

THE SENIOR DEPUTY PRESIDENT: That date was again?

PN583

MS ZEITZ: 25 October, your Honour, which I think falls about two weeks before the hearing so it provides opportunity for parties to consider their positions at that point. In relation to the interim award should the commission be minded to consider that further we would simply seek that matter be set down for formal submissions at a time convenient to the commission in the intervening period.

PN584

THE SENIOR DEPUTY PRESIDENT: Tell me, I am right in understanding that the proposed minimum rate within that award does not exceed the minimum rate in the award that has already been made does it.

PN585

MS ZEITZ: The Hospitality Award.

PN586

THE SENIOR DEPUTY PRESIDENT: Yes, the Hospitality Award.

PN587

MS ZEITZ: That is the proposed rate your Honour. My instructions are however that rate, because of the history of the 1974 award, that rate does not represent a benchmark that is applied nationally and therefore that to proceed with using that rate would in fact have the effect of creating rights not merely retaining the status quo which in our submission is what the purpose of the interim award would be. I am quite happy to put formal submissions this afternoon if the commission wishes to hear them but if the commission wishes to use that another day I am also happy to hear that.

PN588

THE SENIOR DEPUTY PRESIDENT: I will hear what the other parties have to say about that. Mr Cooper or Mr Swanscott?

PN589

MR COOPER: The program as outlined is agreeable to the association, we can just indicate that we are a bit disappointed that we could not arrive at a minimum interim award to be put in place prior to the formal arbitration of a formal award.

PN590

THE SENIOR DEPUTY PRESIDENT: Well I can understand your frustration given that this matter has been dragging on for two years in effect.

PN591

MR COOPER: I received a document as did the commission last Thursday which purported to be a position by the AHA to which I responded to on behalf of the LHMU indicating that that concession that there would be one rate for a hotel manager in an interim award which was a properly fixed rate of salary which should have served a purpose but I am not willing to argue if there is no consent on that position this afternoon.

PN592

THE SENIOR DEPUTY PRESIDENT: Well there is no consent.

PN593

MR COOPER: That is all I would like to indicate, thank you.

PN594

THE SENIOR DEPUTY PRESIDENT: Mr Swanscott?

PN595

MR SWANSCOTT: I have got very little to add your Honour except to say that it is an astonishing admission that an award that proposes an interim rate that is below the highest rate in the hospitality award and is equal to the rates for supervisors to create such economic difficulty in relation to hotel managers, the people above those supervisors. It is such an astonishing admission that it indicates that there has been a lot of luxury attached to the hotel managerial staff award that's been exploited, clearly over many years and the sooner that that situation can be addressed, the better.

PN596

Your Honour we will comply with that timetable that has been agreed and we will also seek to take whatever other steps are necessary to bring this matter to a speedy conclusion. Your Honour also, rather than get hung up about an argument about whether an interim award should create new rights or others we also make the observation that section 117(1)(b) of the Act allows the commission a general power to make an award or an order including a provisional award. If styling an interim creates another couple of days income for lawyers then we will find another word and call it something else. Thank you.

PN597

THE SENIOR DEPUTY PRESIDENT: Very well, well I will at this stage - Mr Cooper first of all, in view of the fact that the interim award, I will not make the interim award without hearing the parties on the proposition that has been put by Ms Zeitz to the effect that the rate does not represent a rate that is the general standard basically within the industry or below the general standard in the industry. Is there any point in hearing the interim application or the application for the interim award prior to the arbitrated matter if I undertook to deal with that matter expeditiously upon the completion of the hearing?

PN598

MR COOPER: No, I think it can be dealt with under time frame that has been outlined and we put an award in place which has some solid future prospects if you like, we have waited this long I suppose we can wait a tad longer, unfortunately.

PN599

THE SENIOR DEPUTY PRESIDENT: Yes. Is that your position Mr Swanscott? Not your preferred position - - -

PN600

MR SWANSCOTT: It is the pragmatic position.

PN601

THE SENIOR DEPUTY PRESIDENT: All right, well I will make the directions as noted by Ms Zeitz and that will be issued in written form with a notice of listing over the course of tomorrow. As I have said, the refusal of leave to intervene is without prejudice to the parties that Mr Hodgkinson sought to represent at the time of the hearing of the arbitrational proceedings but I am sure that in the interim the parties will have adequate opportunity to resolve those matters internally. So the matter is adjourned until 14 November 2002 - just before I do adjourn, Mr Hodgkinson, can I ask you a question. I just wanted to ask you, I am going to be away for two weeks, is there any screaming urgency for my reasons for decision?

PN602

MR HODGKINSON: I think, am speaking without instructions, I think we would ask if it is possible that those reasons be provided prior to the commencement of the arbitral proceedings. Can I just check, I do not think that there is any other - - -

PN603

THE SENIOR DEPUTY PRESIDENT: I would provide them at the expiration of those two weeks but very shortly after the expiration of that two weeks.

PN604

MR HODGKINSON: We have just provided with some very succinct advice to my clients, the timeframe that you propose your Honour would be an acceptable time frame, we do not seek to agitate anything further in relation to that.

PN605

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well, the matter is adjourned.

ADJOURNED UNTIL THURSDAY, 14 NOVEMBER 2002 [5.09pm]