C2002/3075, Transcript of Proceedings [2002] AIRCTrans 3481 (11 September 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT05593
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER GRAINGER

C2002/3075

APPEAL UNDER SECTION 45 OF THE ACT
BY SIMON RICHARDS GROUP PTY LTD
AGAINST THE DECISION OF SENIOR
DEPUTY PRESIDENT ACTON AT MELBOURNE
ON 28 MAY 2002 IN RELATION TO
C2002/1740

MELBOURNE

10.02AM, THURSDAY, 1 AUGUST 2002

PN1

MR A. McNAB: I seek leave to appear on behalf of the appellant.

PN2

MR L. FREEBURN: I appear for the National Union of Workers, together with MS A. PARKES.

PN3

JUSTICE GIUDICE: Mr McNab is seeking leave.

PN4

MR FREEBURN: No objections.

PN5

JUSTICE GIUDICE: Leave is granted, Mr McNab.

PN6

MR McNAB: Thank you. Your Honour, the submissions and the authorities that will be referred to in this appeal by the appellant are essentially those which were raised below and the outline of submissions which was filed by the then respondent will be largely the ones relied upon in this appeal. Do you all have a copy of the outline of submissions? I have a spare copy if that is easier.

PN7

JUSTICE GIUDICE: Are they in the appeal book? I think they are. Can you check whether they are.

PN8

MR McNAB: Look if they are not it might be just quicker if I could hand up a copy to each of you.

PN9

JUSTICE GIUDICE: Yes. I don't think they were marked as an exhibit and that may explain why they are not here.

PN10

MR McNAB: Do you have a copy?

PN11

MR FREEBURN: I don't know. Does this - - -

PN12

MR McNAB: They are the ones that we used provided.

PN13

JUSTICE GIUDICE: Yes, thanks for considering that.

PN14

SENIOR DEPUTY PRESIDENT WATSON: Are you short a copy? You can have one of mine?

PN15

MR McNAB: Sorry?

PN16

SENIOR DEPUTY PRESIDENT WATSON: Are you short a copy? Well, you can have one of mine.

PN17

MR McNAB: I am sorry, I do apologise to my learned friend. In any case, the submissions which we will make below will be well known because they are referred to in the decision of her Honour. The findings of fact in the decision of her Honour, essentially set out from paragraph 20 to 25 of her decision, the important finding from the appellant's point of view is at paragraph 25 in that the relevant employees rarely leave the call centre during their working hours. Now, in relation to that part of the appeal which deals with the eligibility rule of the respondent, that is the union, dealt with in paragraph 1 of the appeal.

PN18

If I could take - go straight to the decision of the Full Bench of the State Commission in United Sales Representative v Commercial Travellers Guild. I have prepared a list of authorities which are to be referred to and that is at - they are in these manilla folders. But it might be easier, in fact, because my learned friend has put together a list of authorities and cases in that and that is in one of the lever arch folders and it might be easier to read. But in any case, if there is any difficulty there it is in the bound manilla folder which - at tab H.

PN19

MR FREEBURN: It is in our material at tab 16, if that is easier.

PN20

JUSTICE GIUDICE: But they are the same cases.

PN21

MR McNAB: I know. There is a great deal of overlap here. The same cases are referred to. They are basically the same cases that were referred to by her Honour. Forests have been filled, but there is nothing in the - from the appellant's point of view, there is nothing in that material which was not before the Bench below. Now, in relation to that case, this particular decision is relied upon extensively by her Honour and it is also relied upon because reference is made to it by a Full Bench of this Commission in the appeal from decision of Commissioner Lawson, which was also referred to in her Honour's decision.

PN22

Now, in that case there was an application made to amend the jurisdiction or increase the powers of the Commercial Traveller's Board and at page 62 of the decision the manner in which the powers were to be increased are set out:

PN23

The application is made to increase the powers of the Commercial Traveller's Board in such a manner to include commercial travellers soliciting orders for and promoting sales of advertising space and time, to include commercial travellers soliciting orders for and promoting sales of articles, goods, services -

PN24

etcetera. Then there is - the final paragraph of that section on the orders, the jurisdiction is also sought to increase:

PN25

...be increased by including persons employed, soliciting orders for or promoting sales via telephone or other electronic means of articles, goods, services, wares, merchandise or advertising of any kind.

PN26

So at that point of the application it is clear that those duties do not fall within the scope of the ordinary duties of a commercial traveller because there wouldn't be any need to increase the power of the board by making specific reference to those duties if they fell within the scope of what was done by commercial travellers. At page 70 of the report, and this is quoted by her Honour, it makes reference to direct selling, and half way down the page it says:

PN27

Direct selling, either by telephone or some other electronic device, or face to face to buyers who are to use the goods, wares or merchandise in the course of their business, should be related to the jurisdiction of the Commercial Travellers Board, regardless of the employers business.

PN28

Now, her Honour in the decision below fixes on that passage as authority for a proposition that people who are working from call centres are commercial travellers, notwithstanding the fact that they are not employed substantially away from their place of work. There is no finding in that decision of the State Commission that people in call centres are employed substantially away from their place of work or that they are, in fact, commercial travellers. All that has happened is that the State Commission has acceded to an application to increase the jurisdiction of a board to include persons who are employed soliciting orders or promoting sales. But there is no finding anywhere there that, in fact, that they are commercial travellers or, in fact, employed substantially away from their work.

PN29

Now, once, in my submission, the vice in all the decisions which are referred to by her Honour is that there seems to be some stall placed on this decision of the State Board which does not support the foundation. The words mean what they mean. The ordinary usage applies. It is an exercise in intellectual contortionism to have a finding that someone who is employed at a call centre is, in fact, as a matter of fact, employed substantially away from their place of work and this can be no authority for a foundation for that line of authorities.

PN30

JUSTICE GIUDICE: Did the name of the board change?

PN31

MR McNAB: I haven't - there may be answer and I accept that I haven't got this with me, and it occurred to me last night that one way to establish that the force of propositions I am making is to actually obtain the final orders that were made as a result of this decision, and it would perhaps make it clear what has occurred. I don't know whether the name changed, but there is discussion about that at the end of the decision.

PN32

JUSTICE GIUDICE: There is the paragraph above the heading "Other issues" refers to a possible change but - - -

PN33

MR McNAB: Yes, that is the passage that I was - - -

PN34

JUSTICE GIUDICE: It is in connection with market researchers rather than - - -

PN35

MR McNAB: That was the passage that I was thinking of, your Honour.

PN36

JUSTICE GIUDICE: Yes, well, that is all we know about it.

PN37

MR McNAB: Yes, it may be, and if it assists in any way, a copy of the order could be obtained which resulted from that decision. Now, one of the difficulties facing the appellant was that the Full Bench of this Commission in National Union Workers v Elder Research and others referred to this decision of the State Commission, and that is at tab H.

PN38

SENIOR DEPUTY PRESIDENT WATSON: "I" I think.

PN39

MR McNAB: Sorry.

PN40

SENIOR DEPUTY PRESIDENT WATSON: According to the index.

PN41

MR McNAB: Yes, thank you. On the second page:

PN42

We note in this respect the former Industrial Relations Commission of Victoria came to the same conclusion in relation to the constitutional capacity of the United Sales Representatives Commercial Travellers Guild -

PN43

etcetera. Now, in my submission that case does not stand - is not authority for that proposition.

PN44

JUSTICE GIUDICE: Sorry, what is the passage?

PN45

MR McNAB: The passage is down page 2 starting:

PN46

As to the second of these issues .....

PN47

There is absolutely no analysis in the State Commission's decision as to why a person in the position of the employees of the appellant would come within a definition of "commercial traveller".

PN48

JUSTICE GIUDICE: The Full Bench refers to the constitutional capacity to create a dispute in respect to persons concerned. Are the duties and so on of the persons concerned set out somewhere here?

PN49

MR McNAB: They are not set out in this decision, but they are set out in the decision at the first instance of Commissioner Lawson and they dealt with market researchers, which fall within Rule 5(d)(ii) of the relevant rules, rather than 5(d)(i), which is the rule that we are concerned with here.

PN50

SENIOR DEPUTY PRESIDENT WATSON: And that is in tab "J".

PN51

MR McNAB: Yes.

PN52

JUSTICE GIUDICE: Well, so that case was concerned with market researchers.

PN53

MR McNAB: It was.

PN54

JUSTICE GIUDICE: It wasn't concerned with people in call centres?

PN55

MR McNAB: No. It was called "field". The actual expression is persons employed as fieldsmen in the market research industry. So it is a different field, yes. So it could be distinguished on that basis.

PN56

JUSTICE GIUDICE: Well, so the decision of the Victorian Commission, which is there referred to, is the one you have just taken us to, but the relevance of it for the purpose of the Roy Morgan case must have related to another part of the Victorian Commission's decision there, that that part dealing with market researchers.

PN57

MR McNAB: Yes. It is not entirely clear. Well, it is not clear on the face of the decision of the Full Bench. When you say it must be, I am not sure that that necessarily follows.

PN58

JUSTICE GIUDICE: Well, in the paragraph you took us to they seem to be dealing with an argument about the constitutional capacity of the NUW to create a dispute in respect to the persons concerned. You have told us the persons concerned were market researchers.

PN59

MR McNAB: Well, the decision of the State Bench dealt with market researchers and that is found at page 71 of the judgment, 71 on, and at page 78 it says:

PN60

In accordance with the general view we have of the Act in following the procedure we have adopted in other cases, we are prepared to say that we would incorporate in any order we would make provision that the current Commercial Travellers Award would not apply directly to market researchers, either for a period of time to allow the Board to consider the matter or until a resolution covering market researchers has been made by the Board.

PN61

JUSTICE GIUDICE: Well, what does that mean?

PN62

MR McNAB: Well, it appears they didn't finally determine the matter in that decision.

PN63

JUSTICE GIUDICE: Well, the Full Bench seemed to think they did.

PN64

MR McNAB: Well, with respect to that Full Bench, it didn't actually analyse the decision of the State Commission. It is a short judgment. They obviously did not analyse in detail the material. They made a determination that there were matters of fact which - findings of fact which weren't going to be interfered with. So in my submission that deals with the Victorian decision, it deals with the decision of Commissioner Lawson because that - - -

PN65

JUSTICE GIUDICE: Well, just before you depart from the Victorian decision finally, did the Victorian Commission make any findings about the scope of the eligibility rules of the guild?

PN66

MR McNAB: I believe not, your Honour. I am not trying to be evasive in my answer, but I do not believe that they did. Certainly not in relation to employees of the kind dealt with in this application.

PN67

JUSTICE GIUDICE: Yes, I see.

PN68

SENIOR DEPUTY PRESIDENT WATSON: I note Commissioner Lawson's decision at page 11 cites what appears to be Rule 5(d)(ii) of the Commercial Travellers Award and in that ..... is conducting a market research enquiries specifically included within that rule.

PN69

MR McNAB: It is. Yes, it is 5(d)(ii), but the employees in this case are dealt with under 5(d)(i).

PN70

SENIOR DEPUTY PRESIDENT WATSON: Yes, I am sorry, I am just going to the Full Bench's reliance on the Victorian Sales Representative Commercial Travellers Guild.

PN71

MR McNAB: And when one looks at the decision of Commissioner Lawson - - -

PN72

SENIOR DEPUTY PRESIDENT WATSON: I am sorry, it is the union rules, not the - the union Rule 5(d)(ii).

PN73

MR McNAB: The decision of Commissioner Lawson is notable because there is no analysis as to why the phrase, "Working substantially away from the employer's place of business", does not apply. Why it has no meaning.

PN74

COMMISSIONER GRAINGER: Why the fact, the mere factor that occurs involved in the making of telephone calls places it outside of their employer's place of business.

PN75

MR McNAB: There is no - I don't think it goes that far, the decision. It doesn't go into this analysis that the - - -

PN76

COMMISSIONER GRAINGER: I am talking - no, I am not talking about this case, I am talking about a case where they - - -

PN77

MR McNAB: Yes, well, that is a matter I will come to shortly. In Commissioner Lawson's decision at page 11, which is tab "J" of the bundle of authorities. There is reference at the bottom of the page:

PN78

The phrase "substantially away from the employer's place of business" may be applied to all of Morgan Group's interviewers, wherever they may work, whether that be in a specialised telephone facility or conducting face to face interviews in a public place or a person's residence. In this Commission's view those words should not be applied narrowly in this industry.

PN79

Now, it does not say why the operative words "substantially away from the place of business" should not be read in their ordinary meaning. And whatever High Court authority you refer to in relation to the interpretation of eligibility rules, the fundamental point in all of them is that, notwithstanding that there might be a liberal interpretation or you don't read them too closely because they may be drafted by union officials, etcetera, the fact is that they come back to this expression, "the ordinary meaning of the words".

PN80

Now, the next decision that was relied upon by her Honour was the decision of the NUW v Bendigo Advertiser and Independent, and that discussion is at paragraph 38 of her Honour's decision. Now, once again this is a case where the analysis fails. At page 12 of the learned Commissioner's decision there is a reference to the industry rule of the NUW, rule 4 and the eligibility rule, Rule 5, and:

PN81

It established that the NUW has coverage of the employees who are the subject of this application. ...(reads)... to solicit orders for and selling advertising space in newspapers, journals, periodicals, however so described.

PN82

Then half way down the page the Commissioner says:

PN83

This decision determines that the NUW has coverage by virtue of its rules of telemarketers. The application with respect to sellers of classified advertisements is straightforward ...

PN84

and it goes on. There is no analysis there as to how you avoid the consequences of the words "working substantially away from the employer's place of business". It simply says:

PN85

Whilst not precisely meeting the meaning of the rule.

PN86

Well, it doesn't meet it at all. It makes a nonsense of the rule. If I could move to the decision of Franklin Mint v NUW, which is referred to in her Honour's decision at paragraph 39 and a great deal of reliance is placed on this decision and it is quoted very extensively. At page - sorry, at paragraph 40 of the decision it is a quote from the learned Commissioner Whelan's decision in relation to 5(d):

PN87

Rule 5(d) of the union's eligibility rule applies to employees in the industry of the craft occupation of commercial traveller. The rule goes on to define, for the purpose of the rules, the meaning of commercial traveller as a person employed substantially away from their employer's place of business in, or for the purpose of soliciting orders or promoting business of whatever kind.

PN88

etcetera, and then she says:

PN89

The definition, in my view, is a composite phrase and must be read as such.

PN90

Now, what that means is somewhat mysterious. The rules goes on to state:

PN91

That without limiting the ordinary meaning of the foregoing, such employees shall include ...

PN92

and then she says - I am not reading everything. At the last sentence of that paragraph she says:

PN93

I am satisfied that that, the phrase, without limiting that the ordinary meaning of the foregoing applies to the whole definition of commercial traveller.

PN94

In my respectful submission that is just plainly wrong. If you look at the rule - commercial traveller, and that is set out at page 2 of the decision:

PN95

For the purposes of these rules, "commercial traveller" shall mean a person employed substantially away from the employer's place of business in or for the purpose of soliciting orders -

PN96

etcetera, and then she says:

PN97

Without limiting the ordinary meaning of the foregoing, it shall include ...

PN98

and in 1 reiterates:

PN99

the requirement that the person be employed substantially away from the employer's place of business.

PN100

It doesn't seek to write that down, it actually reiterates it. So in my submission, there is simply no basis for a finding that the expression "without limiting the ordinary meaning of the foregoing", is a limitation on the requirement that the person be employed substantially away from the employer's place of business.

PN101

JUSTICE GIUDICE: Well, in any event it seems that the Commissioner was influenced to a large extent by the fact that there was a Full Bench decision which seemed to support that argument.

PN102

MR McNAB: Yes, and it might - well, I won't repeat my submissions in relation to that, but that would seem to be the case, but she goes well beyond what the Full Bench of this Commission said and goes well beyond what the State Commission said because the State Commission never said anything to that effect.

PN103

JUSTICE GIUDICE: What is that paragraph again?

PN104

MR McNAB: It is paragraph 40 and it is referring to paragraph 29 of Commissioner Whelan's decision.

PN105

SENIOR DEPUTY PRESIDENT WATSON: Sorry, paragraph 40 of?

PN106

MR McNAB: Of the decision of Her Honour.

PN107

SENIOR DEPUTY PRESIDENT WATSON: And you say, "including the Commissioner said".

PN108

MR McNAB: Yes, and then there is a quote, paragraph 29.

PN109

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN110

MR McNAB: And then it quotes the reference to the Franklin Mint case goes on and I was taking the Bench to the bottom of what is paragraph 29 of the quote:

PN111

I am satisfied that the phrase, without limiting the ordinary meaning of the foregoing, applies to the whole definition of commercial traveller.

PN112

SENIOR DEPUTY PRESIDENT WATSON: The essence of Commissioner Whelan's reasons seem to be in paragraph 40 to 42, just looking at the modern context of commercial traveller's work following observations in the Bulk Handling case.

PN113

MR McNAB: Yes, but that assumes that the people are commercial travellers and there is no basis for that assumption. It is assuming that telemarketers are, in fact, people who were travelling sales people, commercial travellers. Now, well, and if that is right the reliance - what the Commissioner seeks to do is rely on this Co-operative Bulk Handling case, but that case doesn't stand for the - is not an authority for ignoring the words of the rules.

PN114

SENIOR DEPUTY PRESIDENT WATSON: The Commissioner seems to be suggesting that the employees move out of the premises for their activities electronically.

PN115

MR McNAB: Yes, but they are not moving from the place of business. I mean if that is right, what is the employer's place of business? In fact, where the contract is accepted, where the telephone call is made and the contract is accepted, is it then - is the Commission then to find that the place of business - employer's place of business is where the telephone call is received, presumably in someone's home or somebody else's office.

[10.32am]

PN116

SENIOR DEPUTY PRESIDENT WATSON: Yes. And there seems to be a suggestion of a distinction between a commercial traveller and a retail employee, which presumably is where disputes over time have arisen, is that commercial traveller goes to the customer in one form or another; whereas, for a retail employee, the customer goes to the employee.

PN117

MR McNAB: All the - well, that analysis might be right, but it still doesn't change the fact that the rules have not been amended to take that up. And when you look at the Federal Court decision in the Co-operative Bulk Handling case, actually there is a limitation on how far you can go in that exercise. At page 549 of that decision the Court says that:

PN118

If there is, as appears clearly inevitable, the continuing change in the manner in which work is done, we see no reason why the new forms of work should not come within the words used in the conditions of eligibility rule, if those words are capable of bearing the appropriate current meaning.

PN119

And the point in this case is that the rules are not capable of bearing that meaning.

PN120

SENIOR DEPUTY PRESIDENT WATSON: Where is that - - -

PN121

JUSTICE GIUDICE: 549.

PN122

MR McNAB: That is at 549 of the Co-operative Bulk Handling case.

PN123

SENIOR DEPUTY PRESIDENT WATSON: Paragraph - we will find - - -

PN124

MR McNAB: Actually I have - I have actually - I am actually just reading now from the submissions, but I can - - -

PN125

SENIOR DEPUTY PRESIDENT WATSON: I see.

PN126

JUSTICE GIUDICE: The CBH case was about the content in normal industrial usage of the phrase "waterside worker".

PN127

MR McNAB: Yes.

PN128

JUSTICE GIUDICE: And the Court looked at awards and other documents to try and work out what that meaning was. Here we have an eligibility rule which is not confined to one description, a generic description, but gives some guidance in addition. In particular, the words that you stress, relating to the location of the work.

PN129

MR McNAB: In fact - - -

PN130

JUSTICE GIUDICE: And what - just following that through, what the Commissioner - Commissioner Whelan seems to have said in this decision was, well, employed substantially away from the employer's business, has come to have a meaning through awards and decisions, which includes people who are sitting on a telephone. Isn't that the analysis. It may be right or it may be wrong.

PN131

MR McNAB: Well, that would seem to be the analysis, because that is why reference is made to all these other decisions. But these - when you look at then, when you actually analyse the decisions, they don't stand for - they don't support the proposition.

PN132

JUSTICE GIUDICE: And you rely on the ordinary meaning in any event.

PN133

MR McNAB: Correct. Your Honour is quite right, in that Combined Bulk Handling case there was just - the eligibility involved waterside workers.

PN134

COMMISSIONER GRAINGER: Were they unloading grain and - - -

PN135

MR McNAB: Yes.

PN136

COMMISSIONER GRAINGER: Commissioner Whelan refers to the cutting of grass in the terminal area, of someone who would be cutting grass in the terminal area as well, in relation to that case.

PN137

MR McNAB: Yes. And the analysis has got to be founded on what the rule in the case actually was. And the rule in that case was rule 6, Admission of Membership:

PN138

Any person who intends to follow the occupation of a waterside worker who is of a respectable character and of age at least 18 -

PN139

etcetera. So there is no definition of what a waterside worker is, which would limit it. Whereas in this case there is a limitation placed on - there is a clear limitation on who is a commercial traveller, and the authorities - there is a High Court authority, and I will - if necessary I can take your Honours to it, dealing with the meaning of a rule, not be interpreted in such a way to render the terms nugatory. And, in effect, that is what - and that is R v Holmes, ex parte Public Service Association of New South Wales, which is at Tab C, at page 73:

PN140

A construction which renders expressions appearing in a trade union constitution rules nugatory should be avoided.

PN141

And what all these - all this analysis does is ignore the clear limitation on what is a commercial traveller. Now, the other point that is made by Commissioner Whelan is, and then picked up by her Honour, is that telemarketers, and this is at - from paragraph - it is within paragraph 40 of her Honour's decision, but is paragraph 35 of the decision of Commissioner Whelan - talks about the changes in commercial traveller, makes reference to the film Tin Men, changes in technology, etcetera. And then Commissioner Whelan poses the question:

PN142

How then do you define a place of business? An order placed from a person's house or perhaps their own place of work. The order is received by a telesales person who may be potentially located anywhere. The goods are located in yet another place. If the transaction involves direct debit from a credit card the payment may be effected in yet another location.

PN143

Now, the question is posed. It is not answered. It is thrown up there for discussion. But there is no actual answer given to that question. But the answer, in all those examples, is it doesn't really matter, because the principal place of business remains the call centre. And the evidence in this case is that the people were employed in the call centre, and rarely left the call centre. So the question as to whether the telesales person is - - -

PN144

SENIOR DEPUTY PRESIDENT WATSON: Well, perhaps the place of business would seem to be in the ether, in the telephone lines.

PN145

MR McNAB: Well - - -

PN146

SENIOR DEPUTY PRESIDENT WATSON: That is where the business is conducted.

PN147

COMMISSIONER GRAINGER: Well, I must say I have got, from a past life, grave concerns about encouraging the notion that there is a physical place somewhere out there that is called cyberspace or the electronic ether.

PN148

MR McNAB: Yes, well, because we are left nowhere. For instance, I mean, in - the interpretation of this rule doesn't exist in a vacuum, and that is what would seem to be operating here, where plain words are - the plain meaning of words are ignored. For instance, in the Business Names Act, in the Corporations Act, place of business is used as an expression. If you change your place of business you have to notify the authority within 30 days. There is all these considerations. Now, the fact is that it doesn't matter if a contract is made on the telephone where the call is placed from Port Melbourne, and the telephone call is received in South Australia.

PN149

The contract may be made when it is accepted and where it is accepted. So the offer is made from Port Melbourne via the telephone and it is accepted in South Australia. But that doesn't mean that the principal place of business of the person operating the call centre is ..... in Port Melbourne. The question of where the contract is being made as a result of the business may be - the fact that they may be made elsewhere doesn't change the core business being conducted in Port Melbourne.

PN150

COMMISSIONER GRAINGER: Well, Mr McNab, does it even have to be principal place of business. The words referred to are "employer's place of business." An employer might have several places of business.

PN151

MR McNAB: Well, it doesn't matter in that case. That is - - -

PN152

COMMISSIONER GRAINGER: I am only - no. I am only drawing you out, Mr - - -

PN153

MR McNAB: With respect, that is not a particular part that I am - this is not - - -

PN154

COMMISSIONER GRAINGER: No, Mr McNab. You kept on talking about the principal place of business.

PN155

MR McNAB: Yes, yes.

PN156

COMMISSIONER GRAINGER: I am just - the point I am making is the word "principal" - the word "principal" isn't used there. It is just the employer's place of business.

PN157

MR McNAB: I - - -

PN158

COMMISSIONER GRAINGER: It is those words that out attention is drawn to.

PN159

MR McNAB: Yes. I accept that. And I may have confused the issue somewhat by use of that expression, Commissioner, and I do apologise. But in that - in this case we are not worried about that, because there has been a finding of fact that all the employees were in the call centre at a particular place. And so it is not a diffuse range of places where they work from.

PN160

JUSTICE GIUDICE: Does Corporations law say anything about places of business?

PN161

MR McNAB: It does, in terms of registered businesses and notifying ASIC of place of business. The Business Name Act - the Victorian legislation deals with the - it doesn't define it but, where a business name is - section 12 of the Act, 12 subsection (1) provides that:

PN162

Where a business name is registered under this Act and the change occurs in relation to the place or places in the State at which the business is carried out under that name, or in the address of any such place, there shall be lodged with the Commissioner within one month thereafter a statement in the prescribed form ...

PN163

signed by the person, of the particulars of the date of the change. I am paraphrasing that. But - so there is a requirement there, if there is a change of business. And I am aware that there are, within the Corporations law, references to place of business. But it is clear, here, that the call centres that - where the people are physically placed, and there has been a finding of fact that they are all there. And the question that is posed by Commissioner Whelan is not answered.

PN164

And therefore it is submitted that the plain ordinary meaning of "place of business" is where the work is carried on by people engaged by the employer. And that is where the telephone call is placed to people other than the employer, or the employees of the employer. That is where third parties are dealt with.

PN165

JUSTICE GIUDICE: Is that - there is evidence of that in - - -

PN166

MR McNAB: Obviously the Tax Act, taxation provisions deal with place of business, moving from, you know, claims for employees moving from their house to the place of business. There is a raft of decision on that. I haven't dealt with that, because I didn't believe it was necessary. But if it is necessary, obviously it can be - that analysis can be done. But here, in my submission, it is so clear, having regard to the finding of fact, that - at paragraph 25, that the relevant employees rarely leave the call centre during their working hours. Working hours being working at the call centre. It is - - -

PN167

JUSTICE GIUDICE: Well, the nub of the Senior Deputy President's decision, leaving aside issues of authority, seems to be in paragraph 47. That the they do is with the customers of a client who are substantially away from the employer's - I am not quite sure if there is a grammatical mistake in that sentence, but she seems to be saying the location of the work is away from the employer's place of business because the customers are - - -

PN168

MR McNAB: But that, with respect to the Commissioner, that she seems to be confusing the subject of the work with the work itself. And you have then got to go back to the eligibility rule, which says the persons employed substantially away from the employer's place of business. Now, the fact is that they are employed at the call centre. Their work may take them - through the use of the telephone they may deal with people who are in places other than the employer's place of business. But it doesn't change the fact that the place of business - the place of - sorry, the place of employment is at the call centre. The fact that somebody is ringing Nigeria or - - -

PN169

JUSTICE GIUDICE: To take advantage of an investment opportunity.

PN170

MR McNAB: Yes. Yes. Is not to the point. So it is a bold leap, but in my submission, it doesn't succeed in avoiding the consequences of the clear wording of the rules. And if - the plain and obvious way to deal with it is to change the rules. The second point of appeal was that there was non-compliance with the rules. The point was that there was no evidence that the document R5, Form R5, had been served with the log of claims. And - - -

PN171

JUSTICE GIUDICE: Is there a point of substance?

PN172

MR McNAB: Not particularly, and I am not going to trouble you in any - all I am saying is that that is a point that was there. The Commissioner, of her own motion, dispensed with compliance with the rules. That point has been raised in appeal. I would just raise it because it is there.

PN173

JUSTICE GIUDICE: Yes.

PN174

MR McNAB: The third point, ground of appeal, is the question of community of interests of the respondents. The point there is that the union, in its own submissions, would - seem to have conceded that the community of interests is necessary for a dispute finding. The point was raised, and no evidence was put before the Commission at the hearing that there was such a community of interests. The onus being on the applicant has not been discharged. The Commissioner dealt with that by, in effect, taking judicial notice of matters, by paragraph - - -

PN175

JUSTICE GIUDICE: 64, was it?

PN176

MR McNAB: Yes. Paragraph 64. Thank you. Through her own knowledge. Now, it is submitted that that is not the evidence before the Commission. The company has not had an opportunity to rebut that in - - -

PN177

JUSTICE GIUDICE: Well, she says she indicated it during the course of evidence.

PN178

MR McNAB: Well, how does one rebut - well, then, I take that point. It is - there is - well, the question is, it is the - the point is that it is the applicant's case, if evidence is to be called and there is an opportunity to cross-examine, etcetera, but that doesn't really arise where it is simply raised from the Bench that I, as a Member of the Commission, will take judicial notice of something, or I know something to be the case, therefore it is. Now, the final point is that at paragraph 69 her Honour says:

PN179

Well, in light of the provisions of Part VI of the Workplace Relations Act, an industrial dispute within the State of Victoria between SRG and the NUW in respect of a log of claims can be found, without the need to consider any community of interests.

PN180

Well, in my submission, that is not necessarily the case. What it does is remove the requirement of interstateness, but it does not necessarily - change to the legislation does not necessarily remove the requirement of the community of interest. It is somewhat interesting in this case that her Honour made a finding of a single dispute against the employer, as opposed to a finding that there is a dispute between a group of companies, including the appellant and the National Union of Workers. So - - -

PN181

SENIOR DEPUTY PRESIDENT WATSON: She is not able to do that?

PN182

MR McNAB: Well, there has been no application made against the company, individually. I had thought that the application was made against a group of companies for a dispute finding. And then it is - a single dispute finding has been made and given the same Commission number. So it is submitted that in relation to this point that the onus is on the applicant. The onus hasn't been discharged. The issue is still alive, notwithstanding the changes to the legislation.

PN183

JUSTICE GIUDICE: Her Honour seems to have dealt with the community of interest point as though a finding was sought against a number of companies.

PN184

MR McNAB: Yes.

PN185

JUSTICE GIUDICE: I am not sure what the significance of that is.

PN186

MR McNAB: Well, it is somewhat odd. Paragraph 67 makes reference to:

PN187

I am unable to accept that there is no community of interest amongst companies against whom the NUW sought a dispute finding.

PN188

But then, makes a single - a finding of a single dispute.

PN189

SENIOR DEPUTY PRESIDENT WATSON: The reasoning seems to go down to 68, well - I am not satisfied the community of interest point of the response below. But more importantly, that doesn't matter much because the dispute finding can be made under Part XV in relation to a single employer within a single State.

PN190

MR McNAB: Well, that begs the question why a - why the findings - the record of findings records the existence of an industrial dispute within the meaning of that between the National Union of Workers on the one part, and Simon Richards Group on the other part. Why is it not a finding of a dispute involving all the other respondents. If her Honour's - - -

PN191

SENIOR DEPUTY PRESIDENT WATSON: In her Honour's - - -

PN192

MR McNAB: - - - reasoning is correct, and there is no difficulty, why make the finding that she did?

PN193

SENIOR DEPUTY PRESIDENT WATSON: Because that is the primary basis of her reasoning. I don't think community of interest is a problem. However, 69, more importantly, doesn't matter anyway. The dispute finding can be made under Part XV.

PN194

MR McNAB: Well, my submission, your Honour, is that well, if that is the case, why make a single finding? Why not make a finding against all the employers, as the application was made?

PN195

SENIOR DEPUTY PRESIDENT WATSON: Because she is relying primarily on the fact of Part XV and acts on that basis. I mean, is it a substantive issue in the appeal in any case?

PN196

MR McNAB: Look, it is - - -

PN197

SENIOR DEPUTY PRESIDENT WATSON: I mean, it is - - -

PN198

MR McNAB: It is a peripheral - - -

PN199

SENIOR DEPUTY PRESIDENT WATSON: Plainly, a dispute can be made.

PN200

MR McNAB: Well, it is a peripheral issue, but it is one that is - public interest. It raises the matter of public interest in relation to the role of - - -

PN201

SENIOR DEPUTY PRESIDENT WATSON: Well, that is exactly what I was referring to when I said does it matter, is there an issue of public interest as to whether the dispute is made with a single employer pursuant to Part XV within a State or abroad or interstate.

PN202

MR McNAB: Well, once again, it comes down to the - it may come down to a procedural point as to who the application is made against. And in this case, the application is made against a group of employers, saying that all the documentation, all the material filed suggests it is a dispute between a group of employers and the union.

PN203

SENIOR DEPUTY PRESIDENT WATSON: But the Commission is not bound to an outcome which reflects the application.

PN204

MR McNAB: Well - - -

PN205

SENIOR DEPUTY PRESIDENT WATSON: For example, a dispute finding can be made excising matters that are claimed and found to be not allowed - sorry. Beyond jurisdiction.

PN206

MR McNAB: But if the application is made on the particular basis, and that is the way the case is run - - -

PN207

SENIOR DEPUTY PRESIDENT WATSON: Are you saying there was no raising of the application of Part XV in the course of the hearing below us?

PN208

MR McNAB: Excuse me. I don't believe so. I may be wrong.

PN209

SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well.

PN210

MR McNAB: If the Commission pleases, they are the submission I would make.

PN211

JUSTICE GIUDICE: Yes, Mr Freeburn? How long will your submissions be, Mr Freeburn?

PN212

MR FREEBURN: There are three issues raised, your Honour. I can deal with two of them pretty quickly I think. The third one I want to go into in some more detail, because it is an issue which is of importance to the organisation.

PN213

JUSTICE GIUDICE: Yes. How long do you think your submissions will be?

PN214

MR FREEBURN: Probably about an hour or so, your Honour.

PN215

JUSTICE GIUDICE: Yes. I think we might have a break for 10 minutes, Mr Freeburn.

SHORT ADJOURNMENT [11.00am]

RESUMED [11.15am]

PN216

JUSTICE GIUDICE: Thanks, Mr Freeburn.

PN217

MR FREEBURN: I have a rude outline of submissions which I can hand up to assist, your Honour.

PN218

JUSTICE GIUDICE: Thank you.

PN219

MR FREEBURN: We start with the - on his proposition that in order to succeed in this appeal the appellant is required to demonstrate that her Honour fell error in finding a dispute. We rely up on the Coal v Allied dispute that we have cited in our outline. We say that - - -

PN220

JUSTICE GIUDICE: Just a moment, Mr Freeburn. Mr Freeburn, we don't require to hear from you on anything other than the eligibility coverage issue.

PN221

MR FREEBURN: Yes.

PN222

JUSTICE GIUDICE: The question of the construction of the rules.

PN223

MR FREEBURN: Okay, your Honour. Well, that - our submissions in relation to this issue commence on page 5 of our outline. What the appellant's contention is that our rules require that the employees of the appellant be physically located substantially away from any premises occupied by the appellant. They don't otherwise contest that the employees perform functions which fall within the scope of the rules. What they say is that those functions need to be performed away from any premises occupied by the appellant.

PN224

The appellant's contention is constructed upon a proposition that there is an ordinary meaning of the rules and the ordinary meaning of the rules is the meaning that the appellant gives them and there is no other meaning which can be ascribed to the rules. And you ignore the authorities in relation to how union rules are interpreted, you ignore the authorities in relation to the use of industrial usage of meanings in rules to ascertain what the rules really mean. Now, if there was only one ordinary meaning of the rules, if there was only one ordinary meaning of words generally, then my friend and most of the legal professional would be out of business and needing to be finding another vocation.

PN225

SENIOR DEPUTY PRESIDENT WATSON: I am sure they would find something else to do, Mr Freeburn.

PN226

MR FREEBURN: Yes. The starting point is to look at what the words in the rules say. The next point is to look at how her Honour approached those rules. Then to look at the evidence and then to look at the various authorities that were relied upon. We go firstly to the rule, and it is the folder of material, tab 6. The unions eligibility rules, as with many unions, have two parts. One is an industry and one is an eligibility rule. We start with an examination of the industry rule.

PN227

It is on page - the relevant section of the industry rule is on page 5 of the attachment where it says "5 of 74 pages" at the bottom of the page, and it is Industry Rule 4D:

PN228

The industry in relation to which the union is registered is the industry of sales representatives and/or commercial travellers, ie, persons employed by -

PN229

etcetera. I won't read it all. So it is an industry rule. A large part of that industry rule is replicated in the eligibility rule and the relevant part is in Rule 5D, it is on page 8 of the relevant attachment out of the rules. And that rule says:

PN230

The union shall also consist of an unlimited number of employees in the industry of the craft/occupation of commercial traveller.

PN231

It goes on to say:

PN232

For the purpose of these rules "commercial traveller" shall mean a person employed ...(reads)... limiting the ordinary meaning of the foregoing shall include -

PN233

and there are a number of specific categories included. But it is not necessary in our submission to look beyond those open words. Because of the rest of its inclusion we don't need to rule on the inclusions we only need to rely upon those commencing words. And the crux of the construction argument between the appellant and us is that the meaning to be ascribed to the words:

PN234

...substantially employed, substantially away from the employer's place of business...

PN235

That is the crux of the dispute. Now, it is not necessary for the Commission in these proceedings, and it wasn't necessary in a lot of the authorities which have considered this rule, for the Commission to determine the precise or outer limits of the meaning of that rule. All that is required is for this Commission to consider whether her Honour, Senior Deputy President Acton, was in error in concluding that the appellant employed employees who fell within the compass of the union's eligibility rules.

PN236

And we say her Honour's decision evinces no error. It is important to actually look at how Her Honour approached the question and I have set out in summary form, in our written submissions, how her Honour approached the decision - her Honour approached the question in her decision. Permission received in paragraphs 6 and 7, she sets out the relevant rules. Pages 8 - sorry, paragraphs 8 through to 11, she sets out the appellant's submissions which are substantially repeated today. And that it is - if I can quote from the bottom of paragraph 11:

PN237

It is the activity and location of the employees sought to be covered and not the other party to the discussion which is of relevance.

PN238

She summaries the NUW submissions in paragraphs 12 through to 17. Paragraph 18 she gives an indication of her finding that the union has constitutional coverage. In paragraphs 20 through to 25 she sets out her findings on the evidence. Now, I will come back to the evidence in more detail. She then goes on to set out the history of the relevant eligibility rule, and that is in paragraphs 26 through to 30, noting that the relevant rule was formerly part of the eligibility rules of the Commercial Travellers Guild, a union that amalgamated to form part of the National Union of Workers.

PN239

She sets out a previous version of the rule and how it has changed to the current version of the rule. And from paragraph 31 - in paragraph 31 she sets out a number of principles regarding the interpretation of eligibility rules. Now, the appellant here says well, you don't have to worry about that because all you need to do is look at the ordinary meaning of the rules. And there is only one ordinary meaning according to them so don't worry about the rest of the authorities. But we say that that is plainly not the way that eligibility rules need to be approached.

PN240

She then looked at a number of cases, including the decision of the Victorian Industrial Relations Commission that my friend has taken the Commission to and various decisions of this Commission which are relevant to the question before the Commission today - and that is the meaning to be ascribed - to be attributed to the words "employed substantially away from the employer's place of business". All of those decisions uphold, or are consistent with her Honour's decision.

PN241

There is on exception which cast some doubt on the issue but didn't finally decide it and that is the decision of Senior Deputy President Polites in the Australis case, which I will take the Commission to. Paragraphs 41 to 42, and this is really very important, her Honour examines awards of the Commission and their application, or their relevance to the decision before her. And at paragraphs 43 through to 49 she sets out her conclusions.

PN242

Now, that approach is unimpeachable, in our submission. What is said against us is that she got it wrong but that is the only - that is the only argument. It is not that she erred somehow in her reasoning but the appellant disagrees with the conclusion that her Honour reached. And we would say that this Commission need be very cautious in terms of reaching an alternative conclusion to that reached by various members of the Commission, including her Honour, in the proceedings below.

PN243

But first it is necessary to look at what the evidence was in relation to the employer's place of business. And I am minded to - I recollect a passage from Commissioner Whelan's decision where she said that the employer in that case didn't attempt to define what their place of business was. And the same applies here, it is assumed by the appellant that place of business means any premises occupied by the employer. And we say that there is no warrant for reading the rules in that way. But more than that, the evidence - even on that narrow approach - the evidence did not establish that these employees were employed substantially away - were employed at the employers place of business.

PN244

JUSTICE GIUDICE: But does that matter? What has to be shown is that they are - it is a negative which has to be shown, isn't it?

PN245

MR FREEBURN: Well, I think the way that the appellant approached it was that they have to - they argue that they showed that these people are employed at a call centre.

PN246

JUSTICE GIUDICE: Yes.

PN247

MR FREEBURN: That call centre is the employer's - because they are employed at a call centre that call centre is the employer's place of business therefore they are not employed away from the employer's place of business.

PN248

JUSTICE GIUDICE: Yes, and if that is correct then that obviously gets them the distance they want to go. But I was rather making the point that the words of the rule are "substantially away" from the employer's place of business.

PN249

MR FREEBURN: Yes.

PN250

JUSTICE GIUDICE: And they are the words, in the end, that have to be construed.

PN251

MR FREEBURN: Yes.

PN252

JUSTICE GIUDICE: There might be a difference - provided the place that they are substantially employed is not the employer's place of business then that is the - that is the way in which the proviso operations.

PN253

MR FREEBURN: Well, there is a number of issues that arise from the proviso and you need to read the proviso very strictly to come up with the conclusion that the appellant contends for. First of all you need to say "employed" means the same thing as where the employees are physically located. That is the first thing. Secondly, you have to say that "place of business" is any premises occupied by an employer. Thirdly, you have to say "business" means the activities carried on by an employer at any premises it occupies.

PN254

And, you know, you need to discern one reading of the rule - and we only need to establish one alternative proposition to be successful and we can establish several. But what is the employer's business, firstly? Does the rule require to characterise the employer's business? Why is it that the call centre is the employer's place of business merely because it is a premises occupied by the employer - and I will come to this in more detail.

PN255

But to demonstrate the example that I am providing the Commission, the employer describes its business as a direct marketing agency. And I take the Commission to the evidence now. It segregates its business between the call centre and its agency functions. Previously the work done by these employees for the Simon Richards Group was outsourced. It was done by someone else at another location.

PN256

JUSTICE GIUDICE: Do you take issue with the way in which the Senior Deputy President characterised the work?

PN257

MR FREEBURN: Characterised the work?

PN258

JUSTICE GIUDICE: Yes.

PN259

MR FREEBURN: No, your Honour, there is no issue, I understand, between any of us about the characterisation of the work.

PN260

JUSTICE GIUDICE: She seems to have made her decision based on that characterisation.

PN261

MR FREEBURN: Yes, your Honour.

PN262

JUSTICE GIUDICE: Yes.

PN263

MR FREEBURN: And it wasn't contested that the characterisation, and further it wasn't contested that the characterisation - and I will describe the word - fell within the rule. What was contested was that the employees were engaged, were employed substantially away from the employer's place of business.

PN264

JUSTICE GIUDICE: Yes.

PN265

COMMISSIONER GRAINGER: But, Mr Freeburn, if the employer's business was wholly or in part the operating of a call centre, wouldn't that make it - wouldn't it make the call centre the employer's place of business?

PN266

MR FREEBURN: Not necessarily, Commissioner, no.

PN267

JUSTICE GIUDICE: Why?

PN268

MR FREEBURN: Well, I think the question arises in the reverse: why is it simply - why is the location of the employees the determining factor in relation to this question, how those rules are interpreted. The rule - and I will come to this, how the rule should be approached - the ruling using those words was to distinguish between persons involved in selling and promotion or employed in a facility like a shop as opposed to people who were employed somewhere else by an employer who operated a facility such as a shop.

PN269

So an employer who operated a shop may employ retail assistants in the shop and he may employ people outside that shop to sell and promote products or services operated from that shop. That was the traditional work done by those words in the rule. And that is evidence from at least the decision of the Victorian Commission, which I will come to. And that work has changed and in no way we say can the work done by these employees be characterised as being performed at the employer's place of business within the meaning to be ascribed to those words in the rule.

PN270

So firstly, we say the evidence didn't establish what the employer's place of business was in the first place. It didn't establish that these employees were employed at the employer's place of business within the meaning of the rule. The evidence was that the employer operated a call centre and it segregated its business, which you have described as a direct marketing agency, between employees who worked in the call centre and employees who worked in the agency.

PN271

COMMISSIONER GRAINGER: And there is no dispute as to that, you say?

PN272

MR FREEBURN: No. No.

PN273

COMMISSIONER GRAINGER: I am not sure whether that helps the appellant or your, Mr Freeburn.

PN274

MR FREEBURN: We say that it helps us, Commissioner, because the appellant comes here saying your Honour found in error because she found that these employees weren't employed substantially away from the employer's place of business. They didn't even establish before her Honour what the employer's place of business was.

PN275

COMMISSIONER GRAINGER: But, are you saying it is not in dispute that part of their business was running a call centre - is that right?

PN276

MR FREEBURN: No, I don't say that, your Honour. I say that there was a call centre run, whether that is part of the business within the meaning of the rule is another question. I mean, the characterisation of a business is a difficult process. It is a notoriously difficult process to characterise what a business is. And I refer to a - I can't remember the precise words, but in PP Consultants, recently, the High Court characterised the word business as a "chameleon-like" term. So it is no easy feat to actually work out what the business is, if you can ascribe to this employer a particular business and characterise it.

PN277

COMMISSIONER GRAINGER: I thought you said, though, that it is not in dispute that part of the business of this employer was running a call centre.

PN278

MR FREEBURN: No. I said it is not in dispute that the employer operated an agency which described itself as a direct marketing agency. Up to four years ago it contracted out its call centre operations and four years ago it started a specialised call centre. Those employees in the specialised call centre operate in a segregated environment from the rest of the business.

PN279

COMMISSIONER GRAINGER: Right. And you - but you say that is - you accept that that is the case?

PN280

MR FREEBURN: Yes, sir. Well, that is the evidence, we don't have to - our acceptance of it is neither here nor there but what - - -

PN281

COMMISSIONER GRAINGER: It may be very material.

PN282

MR FREEBURN: Well, the point that I am making, Commissioner, is that if these people are employed in a specialised call centre which is segregated physically and organisationally from the rest of the employer's business and - the employer describes its business as a direct marketing agency, these people work in a call centre which is segregated from that direct marketing agency business. Then on that interpretation of the rule that is all we need to establish and that is what the evidence does establish.

PN283

JUSTICE GIUDICE: I don't follow that, Mr Freeburn. Perhaps you haven't developed the argument yet. But the rule - one part of the rule requires that employees be employed substantially away from the employer's place of business. Now, doesn't that assume that every employer has a place of business - one place of business?

PN284

MR FREEBURN: Yes. And if the place of business - but what is - you need to - approaching it from that way you say: what is an employer's business? The employer describes his business as a direct marketing agency. Where is the direct marketing agency located? It is not clear from the evidence where it is located and it is certainly not located at the call centre because the call centre is operated as a separate entity. It is operated - - -

PN285

JUSTICE GIUDICE: Yes. But don't you have to establish the applicant for the - I am looking at this now as a question of jurisdiction. Isn't it for the applicant to establish that the eligibility exists? And therefore it falls to you to demonstrate that the employees about the controversy exists are employed substantially away from the employer's place of business.

PN286

MR FREEBURN: Well, these questions of onus are notoriously difficult, your Honour. And I - - -

PN287

JUSTICE GIUDICE: I agree with that.

PN288

MR FREEBURN: I was giving your Honour a reference to R v Alley, a plumbers and gasfitters, which says that it is on - at least in those type of proceedings it is the onus to establish a want of jurisdiction is on the party seeking to establish that.

PN289

JUSTICE GIUDICE: Well, that is in the High Court.

PN290

MR FREEBURN: That is true, your Honour. But in any event - - -

PN291

JUSTICE GIUDICE: For a Commission the decisions indicate where the onus lies in proceedings here. In any event we have to decide it so question of onus may not be terribly material in the end. But I am just making the point that the rules seem to assume that there will be a place of business and that the work will be carried out somewhere else.

PN292

MR FREEBURN: Exactly. Exactly.

PN293

JUSTICE GIUDICE: Yes.

PN294

MR FREEBURN: And there are a range of ways in which you can approach the construction of those words. One way on the evidence - well, the evidence shows that there is a segregated operation. These employees work in a call centre which is segregated from the rest of the business. The business of this employer is a direct marketing agency. It doesn't matter where it is located.

PN295

JUSTICE GIUDICE: But if they are segregated from the rest of the business, you say that because they are not the same place as the agency they are away from the place of business?

PN296

MR FREEBURN: Yes, your Honour. Because the way that the appellant - - -

PN297

JUSTICE GIUDICE: Well, that is not what her Honour said. I don't think that is what her Honour said, did she?

PN298

MR FREEBURN: No, no. But there are several ways in which we can satisfy the Commission that we have eligibility coverage of these people. And on the evidence, that is one way because for the appellant to - for that argument that I am advancing now to not be correct - - -

PN299

JUSTICE GIUDICE: Yes.

PN300

MR FREEBURN: - - - the appellant would have to establish that the word business used in the rule means every place occupied by the employer.

PN301

COMMISSIONER GRAINGER: Well, are you saying that there can only be one place of business for an employer, Mr Freeburn?

PN302

MR FREEBURN: No. I am saying that you interpret union rules in a particular way and you adopt a broad approach to it, and I will come to some authorities in relation to this. And on one approach on the evidence these employees are employed away - from ..... said, even - I am assuming that what my friend says is right. Even assuming what is right, on the evidence it can't be said that these people are employed at the employer's place of business - unless it is established that every place that the employer occupies is its place of business.

PN303

We have included in the materials, at tab 7, an article by Jeff Shaw and Mike Walton. It is a fairly old article now, but it is a useful article for summarising the principles which are to be applied to the interpretation of the union's rules. And I have summarised the relevant principles that we call into operation at the bottom of page 6 of our written submissions, and the top of page 7. Now, those principles are that a generous non-restrictive or liberal approach is adopted. He recognised that union constitution rules are not drafted by lawyers. The content of the words are to be assigned a broad and not a restrictive meaning.

PN304

Industrial usage and understanding has an important role in ascertaining the meaning of the rules. The rules are to be interpreted in light of changes to industry and industrial understandings. And I cite authorities for all those propositions. My friend says, "Well, don't worry about those because the cases also say that you still ascribe the ordinary meaning of the words." Well, that argument can only apply if there is only one ordinary meaning that can be ascribed to these words. And we say that the meaning that my friend adopts is an unduly restrictive and narrow one which is not consistent with the authorities and not consistent with the way that those words are interpreted industrially.

PN305

I set out on page 7 a quote from re Coldham ex parte the AWU about the - that it is permissible to look at any common understanding among people concerned with relevant industries, and particularly with industrial matters of the ordinary application are the words used, and:

PN306

To take account of evidence of that common understanding furnished by the previous use of the words in the relevant organisation's rules and the statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.

PN307

And that relevant quote is at page 9 of the copy of the decision which I have included in the folders. Now, my friend took the Commission to the decision of the Victorian Industrial Relations Commission which is at tab 16 of the folders. It is important to understand the environment and the background to the decision that was being made by the Victorian Industrial Relations Commission. There was an application by the Commercial Travellers Guild and the Shop Distributive Employees Association to vary the jurisdiction of various boards.

PN308

Now, it is implicit in the structure of the board system, that the organisation which participates in those boards, has eligibility coverage for the employees and is able to represent the employees who fall within the jurisdiction of those boards. And there were overlapping applications. Now, the rules of the organisation concerned in that case were relevantly indistinguishable from the rule that is currently before the Commission - in question before the Commission. It is implicit and explicit in this decision that the union had eligibility coverage of employees concerned.

PN309

If I go to a number of passages in the decision, on page 67 of the decision, the Commission summarised the issues between the Guild and the SDA. One of those issues was a representative selling advertising space, etcetera, and there is reference to telephone sales personnel in what was described as the telemarketing industry. At the bottom of page 68, the Commission says:

PN310

On careful consideration of the evidence before us, it is clear that the words merchandiser or merchandising, whilst having a general meaning, are given ...(reads)... telephones and other electronic services.

PN311

The Commission goes on to talk about:

PN312

In the past, a line between commercial travellers and salesperson work has been drawn between wholesale and retail.

PN313

And they are there referring to the line drawn between the coverage of the various boards, rather than the eligibility coverage. They talk about some evidence given by Mr Hagen who - and it is not quite apparent from the decision, but I believe Mr Hagen was from the Department of Labour, and he gave evidence on behalf of Job Watch. And he says this - it is about halfway down the page:

PN314

The major difficulty with the Department of Labour appears to have been in applying the shops award to people involved in door to door selling ...(reads)... in the hope that an award will apply.

[11.47am]

PN315

At least point out that we have got both those difficulties here, that is Simon Richards Group doesn't operate a shop and it is effectively an agency for and on behalf of the clients for which it conducts its business. Down the bottom of the page they say:

PN316

If we were to grant the Guild's application in full, it would mean that some persons who have been traditionally employed under the Shops Boards by retailers would be covered by the jurisdiction of the Commercial Travellers Board.

PN317

And they come up with a way of making the distinction between the various boards. And they look at the major or substantial occupation of the employee and they set out various reasons for doing that and the distinction they draw is between the purpose of the boards is the commercial travellers who sell by retail effectively or sell for a retailer covered in the Retail Board and other commercial travellers come within the Commercial Travellers Board but it is implicit in that division, it is implicit in that decision that there is eligibility coverage in both organisations. And they talk about commercial traveller and various aspects - - -

PN318

JUSTICE GIUDICE: Mr Freeburn, why do you say it is implicit that the organisations have eligibility?

PN319

MR FREEBURN: Well, if the Commercial Travellers Guild didn't have eligibility coverage for what it was seeking to expand the board to then the Commission needn't go into these issues. The Commission need make the distinction on that basis. It only needed to say well, the Commercial Travellers Guild doesn't have eligibility coverage for these people. We can't expand the scope of the Commercial Travellers Board to include these people.

PN320

JUSTICE GIUDICE: Well, you may be right. It is not my recollection that the eligibility rules of a registered organisations; Federally registered organisations were always regarded as, if you like, setting the outer limits for the constitution of a wages board.

PN321

MR FREEBURN: Yes, your Honour. We say - - -

PN322

JUSTICE GIUDICE: You may be right.

PN323

MR FREEBURN: Yes. Well, we say it is implicit in this section of the decision. I am going to take you on to a different section of the decision where they could be found.

PN324

JUSTICE GIUDICE: It is spelt out, is it?

PN325

MR FREEBURN: Yes.

PN326

JUSTICE GIUDICE: Yes, thank you.

PN327

MR FREEBURN: The next section of the decision which I was just reading from concerns direct selling and this is also important we say. The Commission says:

PN328

Direct selling to persons of goods, wares or merchandise for their own use or disposal occurs both from a shop and from other places of ...(reads)... the jurisdiction of the Commercial Travellers Board regardless of the employer's business.

PN329

And that is how they divided up the jurisdiction of the various boards. Further on in the decision, in relation to market researchers, the Commission again quotes some evidence from Mr Hagen and this is at the bottom of page 72:

PN330

The problems we get in the market research area tend to come from people engaged in making sales ...(reads)... we believe it is important if it is possible to have a single board to have jurisdiction over the matter.

PN331

If I could slip over a few pages and go to page 77, it is about two thirds of the way down the page, the Commission says:

PN332

We now deal with the merit involved in removing market researchers from a jurisdictional to general board and placing them under the jurisdiction of the Commercial Travellers Board. The Guild has the constitutional coverage for the people concerned.

PN333

So it is quite a strict specific finding. Now, to explain the significance of this, before taking the Commission to the awards which apply now and which applied then and their incidence, if I take the Commission back to Rule 5D. Rule 5D commences with opening words:

PN334

The industry shall also consist of unlimited number of employees in the industry or the craft or occupation of commercial traveller.

PN335

And it says:

PN336

For the purposes of these rules, commercial travellers shall mean a person employed substantially away from the employer's place of business.

PN337

It goes on to include a number of specific examples and one of those specific examples is market research and that is Rule 5D(2) where it says:

PN338

Persons employed as field men in the market research industry.

PN339

So those words - it is not possible to say, well, market research is somehow separate, you apply different principles to it because it is wider. People who work in market research are not required to come within the term:

PN340

... employed substantially away from the employer's place of business.

PN341

Those words, we say - - -

PN342

JUSTICE GIUDICE: Can I just clarify what you say about that passage you just took us to? Where the Commission say that:

PN343

The Guild has the constitutional coverage for the people concerned -

PN344

MR FREEBURN: Yes.

PN345

JUSTICE GIUDICE: Is it there talking about market researchers?

PN346

MR FREEBURN: Yes.

PN347

JUSTICE GIUDICE: Yes. But you say that has a wider significance?

PN348

MR FREEBURN: Yes. Because of the structure of the rule and that is:

PN349

... employed substantially away from the employer's place of business -

PN350

where we say it applies equally to market researchers as to the other inclusions in the award. But the decision - it is true that the decision doesn't explicitly say the union has constitutional coverage of commercial travellers who are not employed substantially away from the employer's place of business. We don't advance that proposition. The real question is what does an employed substantially away from the employer's place of business mean.

PN351

And we say that it means or includes people who use electronic means to travel outside where that employee is physically located to conduct business on behalf of their employer and that much is clear that that was accepted certainly by the Victorian Industrial Relations Commission, is clear from the terms of the Commercial Travellers Award which applied in Victoria and which has been replicated in the Commercial Sales Award and I have extracted the incidence provisions of the Commercial Sales Award in Tasmania, in tab 13.

PN352

Now, this is the current version of the award but it has predecessors, it goes back to when the Victorian system was abolished and Federal awards were established to - during the holes left by the abolition of the Victorian system and the clause - in incidence clause in this award replicates the incidence clause of the previous Commercial Travellers Award in the Victorian jurisdiction and it was something which various members of the Commission in considering the meaning of the rule, Commissioner Whelan, Commissioner Foggo, Commissioner Lawson, considered was important. The Commission will see that clause 6 of the award says that:

PN353

It applies to persons employed in the process, trade, business or occupation of soliciting orders obtaining sales ...(reads)... for articles, wares, merchandise or materials.

PN354

And it talks about how those things are - the purpose for those things. And it says:

PN355

Where the employee is employed substantially away from the employer's place of business or where the employee such duties via telephone or other electronic means or combination thereof.

PN356

So whatever ambiguity there might be in the decision, clearly the award of the Commission provided for the coverage that we say we have and we say that exists through a reading of the rule consistent with the authorities. But this is not only award which accepts proposition. I have extracted two other awards which also accept the proposition, they would be at tab 14 and 15.

PN357

JUSTICE GIUDICE: Mr Freeburn, sorry, I am just trying to keep up with you. Were you taking us to 6.1.3 of the Commercial Sales Award?

PN358

MR FREEBURN: No.

PN359

JUSTICE GIUDICE: Is that the - - -

PN360

MR FREEBURN: Well, no, I am taking the Commission to 6.1. 6.1 starts with the description of soliciting orders etcetera.

PN361

JUSTICE GIUDICE: Yes.

PN362

MR FREEBURN: And sets out three purposes for which those orders are solicited and it says:

PN363

Where the employee is substantially -

PN364

so the words which follow 6.1.3 apply to 6.1.1, 6.1.2 and 6.1.3.

PN365

JUSTICE GIUDICE: So the whole of 6.1?

PN366

MR FREEBURN: Yes. So all of those thing can be done either:

PN367

PN368

Where an employee is substantially away the employer's place of business or the employee conducts such duties via telephone or other electronic means.

PN369

JUSTICE GIUDICE: Yes, I follow. What does such duties refer to?

PN370

MR FREEBURN: The duties of soliciting orders.

PN371

JUSTICE GIUDICE: Oh, whatever they are?

PN372

MR FREEBURN: Yes.

PN373

JUSTICE GIUDICE: Yes. That doesn't quite make sense.

PN374

MR FREEBURN: Your Honour, it talks about two types of work.

PN375

JUSTICE GIUDICE: Yes.

PN376

MR FREEBURN: Assessing orders, if I can use that, to comprehend all of things which it talks about in the first part of 6.1. Assessing orders for one of those purposes in 6.1.2(iii).

PN377

JUSTICE GIUDICE: Yes.

PN378

MR FREEBURN: Either where they are employed away or substantially away from the employer's place of business or where they do those things via telephone or other electronic means.

PN379

JUSTICE GIUDICE: Yes, I follow, thank you.

PN380

MR FREEBURN: And that proposition recognised in terms of the market research in relation to the Market Research Services Roy Morgan Research Award which is tab 14. There is an incidence clause which says that it applies to all persons employed under the classifications in clause 16 and I have set out clause 16 and clause 16 says that a whole lot of classifications, not all of which apply, only involve people moving physically outside of where they are located. And the Market Research Industry Award which I point out in clause 5 again applies to:

PN381

All market research business in Australia including every process, trade, business or occupation on or in relation to or in connection with market research and all support work engaged in or in connection with market research business.

PN382

And there is a range of classifications in that award and clearly those classifications there comprehend persons who do not physically move outside where they may be physically based or physically employed, is I can use that description. If I could now go to the decisions which have led in a line to this case before the Commission today. They start with the decision of Commissioner Lawson. Now, Commissioner Lawson's decision appears in - it is tab 17. Commissioner Lawson's decision was criticised as lacking analysis. We don't - I think if you look at the decision it doesn't lack analysis, the analysis may be brief but it certainly is present in the decision.

PN383

It was submitted in that case that the union's registered rules, and I am looking at the bottom of page 7 of the decision. And Ms Cirkovic, who appeared for the Roy Morgan Group, submitted that:

PN384

The union's registered rules limited the union's constitutional coverage to persons employed as fieldmen in the market research industry. The word "fieldman" it was argued, can only be construed as applying in this case as to market research interviewers working away from an employer's premises.

PN385

Similar to the argument which is advanced before the Commission today. Further on, at page 9 of the decision, Commissioner Lawson summarises the propositions advanced by Mr Ihlein, who was appearing for some of the employers in that case. Mr Ihlein advanced the proposition that:

PN386

The union's registered rules covered not only fieldmen in the market research industry, but ought be read sufficiently wide as to enable the union to enrol all persons in the industry. Mr Ihlein broadened his proposition by asserting that the term "field" related primarily to the process and community from which data is collected, rather than to the geographic place where a fieldworker is located. And embraced other market research industry workers, including supervisors, data collectors, editors, and auditors. Clients behind Mr Ihlein appear contented that fieldwork included the range of functions which the Morgan Group conceded that it engaged persons for.

PN387

Now, Commissioner Lawson's decision in this matter, on this issue, starts at page 12 of his decision. And he talks about:

PN388

The final issue to be dealt with is the application ...

PN389

It is halfway down the page:

PN390

The final issue to be dealt with is the application of the union's registered rules, and the implications for the breadth of the dispute finding. As earlier stated in this decision the Commission adopts a broad view of the application of eligibility Rule 5D(2), consistent with R v Aird, ex parte with AWU; and R v Cohen, ex parte Motor Accidents Insurance Board.

PN391

He sets out Rule 5D(2), and talks about the phrase:

PN392

... substantially away from the employer's place of business may be applied to all of the Morgans Group's interviewers, wherever they may work, whether that be in the specialised telephone facility, or conducting face to face interviews in a public place, or at a person's residence. In the Commission's view, those words should not be applied narrowly in this industry. The union's rules are sufficiently broad as to embrace persons intended to be covered by the log.

PN393

So, he adopts a broad view of it. And he goes on to say some of the reasons why:

PN394

Acceptance by other employers in the industry of the ability of the union to cover all classes of labour covered by the log is persuasive.

PN395

He said it was not conclusive evidence in itself:

PN396

What is more persuasive is the unchallenged evidence of an award of the Commission containing an incidence clause ...

PN397

which was broad enough, and definitions which covered employees that weren't engaged substantially away from the employer's place of business:

PN398

The award is, in the Commission's view, validly applied to persons engaged in the above classifications in the industry.

PN399

So it may be short on reasoning, but it is not devoid of reasoning. He adopted a broad view consistent with the authorities, and found that the attitude of the employers in the industry, and the existence of awards, were significant factors in construing the meaning of the words. Now, that decision was upheld on appeal. Precisely that point. The appeal decision is Tab 18. On page 2 of that Print, the Commission says:

PN400

There are three issues raised in the appeal, and it is the second one which is relevant. Whether the union which served the relevant log of claims, the National Union of Workers, has the capacity under its eligibility rules to create a dispute in respect to such persons.

PN401

And a couple of paragraphs down, halfway down the page, the Commissioner sets out his conclusion on that factor:

PN402

As to the second of these issues, it is well established that it is appropriate to give a generous or liberal construction to a union's eligibility rules ...(reads)... an organisation which amalgamated with the NUW and whose eligibility rules form a part of the NUWs eligibility rules, subject to consideration in this matter.

PN403

And your Honour, President Giudice asked my friend a question about that, and I have taken the Commission to the specific passage in that Victoria decision, where the explicit finding was made.

PN404

JUSTICE GIUDICE: In the proceedings before Commissioner Lawson, you took us to the paragraph, towards the bottom of page 12, where the Commissioner refers to work in a specialised telephone facility. Just looking at those words in isolation, I suppose he could have been talking about the people who sometimes work in a specialised telephone facility, and sometimes don't. Equally, it might be said he is referring to people who just work in a specialised telephone facility. Is there any light to be shed on that?

PN405

MR FREEBURN: There was substantial evidence about the nature of the work. It appears from the evidence that, and I take the Commission to, for example, page 5. Two-thirds of the way down the page, Commissioner Lawson talks about evidence given by Ms Benjamin, who had been recruited as a CA2I telephone interviewer. There is different evidence about Ms Benny on the next page - the next paragraph, which - a person does some of both of those types of duties.

PN406

JUSTICE GIUDICE: Occasional telephone interview work.

PN407

MR FREEBURN: Yes. So there was two types, at least two types of work done.

PN408

JUSTICE GIUDICE: Yes. There is reference in the list of witnesses to their - to the work they did and the word "telephone interviewer" is used in at least one place. The others all seem to be described as "occasional interviewers."

PN409

MR FREEBURN: Yes. My recollection of that case was, your Honour, one of the issues which was raised against the dispute finding being found was the employment capacity of these people. They were said to be contractors.

PN410

JUSTICE GIUDICE: Yes.

PN411

MR FREEBURN: And in respect of all of those people who operated in the telephone - the specialised telephone centre, it was said by Roy Morgan that those people weren't eligible because they weren't employed substantially away from their employer's place of business. And in respect of those persons who would be eligible within the narrow reading of the rule, that is, the field research people, that they were all employed as contractors. And Commissioner Lawson found that both classes, both the field interviewers and the people employed in the specialised phone facility were eligible.

PN412

JUSTICE GIUDICE: Yes. Well, it is a little confusing because a summary of the argument put by the employer, at the top of page 8, doesn't seem to raise this question directly at all. But obviously, it was an issue.

PN413

MR FREEBURN: Yes.

PN414

JUSTICE GIUDICE: Yes. Yes, thanks, Mr Freeburn.

PN415

MR FREEBURN: Well, it was specifically raised as an issue. That was one of - yes.

PN416

JUSTICE GIUDICE: Yes, yes. There is no doubt about that.

PN417

MR FREEBURN: I will come back to the decision of Senior Deputy President Polites in a minute. I want to take the Commission first to the decision of Commissioner Foggo, which is Tab 20. And in particular, I want to take the Commission to the Commissioner's decision on page 16 of the extract that I have provided. Half way through the second paragraph on page 16, the Commissioner says:

PN418

There has been a sea change in the duties of employees in the industry brought about primarily through changes in technology. Such changes have led me to conclude ...(reads)... awards which have had coverage of these workers.

PN419

Now, it is not said that her Honour was wrong making those findings of fact about predecessors awards and the preceding coverage.

PN420

THE COMMISSIONER: She does go on to say:

PN421

In summary, I have been swayed by the arguments of the union that consistent with previous decisions of this Commission and because there is a clear understanding between the NUW and the ASU, granting the application will not cause demarcation problems in the workplace that the award should be made.

PN422

So that appears to be a factor she took into account in that case.

[12.15pm]

PN423

MR FREEBURN: Yes, Commissioner, and that is entirely proper for her to take those factors into account. Commissioner Whelan, it is tab 21 - considered directly the issue that is troubling the Commission today. There are two decisions involved in this matter. One was a ..... decision and one was - the second one which follows, it is part of the same tab, was our actual, Commissioner Whelan's actual reasons for the decision which you have made earlier. The argument that is put by my friend - was put to Commissioner Whelan.

PN424

This decision was quoted extensively by Senior Deputy President Acton but I won't read all of it again but we do commend this decision as being a proper way for the rule to be approached. In paragraph 18, the Commissioner refers to being taken to the Victorian award and submissions that were put by the union to her and that submission was that times have changed as a result of using telephones, credit card facilities, faxes and the internet. Commercial transactions can take place between people without them being face to face.

PN425

You can purchase goods without going into a shop or without having a commercial traveller knock on your door. These people are not employees in a shop. They are employed in a specialised telephone facility, even if it is also the head office of a company. You have to ask the question, where is the business being transacted? Why is the location of the employee - the employer's place of business? Really the business transaction that occurs takes place in the electronic ether.

PN426

The place of business could equally be said to be a person's home where they are telephoning from, a customer and a person making the sale are not in the same geographical place. That is really the point being made by Commissioner Foggo and Commissioner Lawson which was upheld by the Full Bench and that was the submission that we put to Commissioner Whelan. Our conclusions commence at page 11 of the decision at paragraph 25. Commissioner Whelan talks about the starting point being the decision of the Full Court of the Federal Court in Co-operative Bulk Handling.

PN427

She talks about limitations sought to be placed on the rules by Mr O'Grady, who was appearing for the employer Franklin Mint. The first of those being that they are not employed substantially away from the employer's place of business. If your Honour accepts the submissions that we put to her about the definition of commercial traveller and talks about the weight to be given to the award and decisions of the Victorian Commission. At paragraph 35 and it is really paragraph 35 through to paragraph 42 which is the crux of the decision in that matter. She says that:

PN428

The use of the expression, substantially away from the employer's place of business, on first sight appears more problematic. There is no...(reads)... effected in yet another location.

PN429

She goes on to talk about the Victorian award and the Federal award and makes the point that if the argument put against us here, which was put against her there, is correct, then those awards are not able to be made. First, in the decision of Commissioner Lawson and Senior Deputy President Polites and the Full Bench in the Roy Morgan case. At paragraph 40 she says:

PN430

To find that the words, substantially away from the employer's place of business, exclude the definition of commercial traveller split ...(reads)... and the Full Bench.

PN431

JUSTICE GIUDICE: Mr Freeburn, is that a reason for rejecting that construction?

PN432

MR FREEBURN: Sorry, your Honour, I don't follow the question.

PN433

JUSTICE GIUDICE: Well, you have taken us to a part of the Commissioner's decision in which she points out that if she were to find for the employer in that case that would cast date upon the validity of the two awards of the Commission in conclusion reached by members of the Commission in other cases. The question I am asking you is whether that consideration is something which we should take into account in this case?

PN434

MR FREEBURN: You need to take it into account in this sense, your Honour, and that is the sense used in the Coldham and Williams cases and - - -

PN435

JUSTICE GIUDICE: Yes.

PN436

MR FREEBURN: - - - that is it is proper to have regard to industrial understandings. Industrial understandings can be determined by examining awards and decisions of the Commission.

PN437

JUSTICE GIUDICE: Yes.

PN438

MR FREEBURN: And they are significant factors in our submission. Her Honour talks about the Bulk Handling case and the finding in that case of - that gardeners were waterside workers. I will take the Commission to - - -

PN439

JUSTICE GIUDICE: They were waterside gardeners though weren't they?

PN440

MR FREEBURN: Yes, but the meaning waterside worker encompasses people who don't even work beside the water. Subsequent cases container depots located some kilometres from the water, people who work in those container depots are construed to be waterside workers within the meaning of the WWF, as they were then, rules.

PN441

JUSTICE GIUDICE: Yes.

PN442

MR FREEBURN: In paragraph 42, her Honour takes note of the changes in technology which is also a permissible approach consistent with the authorities. She says:

PN443

Changes in technology have also affected the industry of commercial traveller or ...(reads)... employer's place of business.

PN444

In our submission, that analysis just has to be right. The traditional distinction in the work, formed by the words in the rule is to distinguish between retail sellers who work in a shop and sellers, people who solicit orders outside a shop. That they may do that work in one place, telephonically, or using modern communication methods, is recognised by the rule. Before moving on, I would just take the Commission to the decision of Senior Deputy President Polites in the Australis Media case which is tab 19.

PN445

His Honour was dealing with a application pursuant to section 118A. There was some argument about the scope of the NUW's eligibility coverage of workers employed by the relative company. His Honour found that there was no dispute. That at least some of those people were eligible to be members of the NUW. He did find that there was some doubt about the scope of our coverage but expressed the view that that wasn't a question that was beyond doubt and that was half way - he expresses that view half way down the page on page 13 of the decision and at the bottom of page 13, over page 14.

PN446

Though he expresses doubt, clearly this is a decision that my friend would seek to rely upon, but he didn't finally determine the issue and it wasn't fully argued before him. Consistent with the authorities - - -

PN447

JUSTICE GIUDICE: You are going on to another point are you, Mr Freeburn?

PN448

MR FREEBURN: Yes, your Honour.

PN449

JUSTICE GIUDICE: Yes. We will have to adjourn just for a couple of moments. We won't be long.

SHORT ADJOURNMENT [12.26pm]

RESUMED [12.33pm]

PN450

JUSTICE GIUDICE: Yes thanks, Mr Freeburn.

PN451

MR FREEBURN: I have set out on page 8 a list of agreements which is not comprehensive, we don't say, but certainly a significant list of certified agreements with a range of companies, employers. All of those agreements contain or travel to employees who are - are of the type concerned with these proceedings. We have given the Commission these - copies of these agreements - references to these agreements for the purposes of establishing the established industrial usage of the - or understanding of the operation of the union's rules and the scope and extension of those union - of our union's rules.

PN452

At the bottom of that list, the Commission will see reference to a case which is FEDFA, F-E-D-F-A v MBA WA recorded in [1983] CthArbRp 552; 1983 291 CAR 530. It is tab 12. It is a case, in our submission rather similar to the matter before the Commission today. The Commission in that case was asked by the AWU to amend a finding of dispute between the FEDFA and employers in civil construction in the State of Western Australia to exclude FEDFA members employed in crane driving classifications on the ground, that the FEDFA lacked eligibility under it's rules to generate such a dispute. At the bottom of page 532 the Commission says:

PN453

In the years it was first registered as an organisation the rules of the FEDFA ...(reads)... of a reasonable interpretation of it's rules.

PN454

And they refer to the approach being consistent with re Williams as part of the BLF case which I have referred the Commission to as well. They then set out a summary of various awards, decisions of the Commission which have considered the operation of the FEDFA rules as being open to a wider interpretation than that which was submitted by the AWU in the present case and there are four examples given of where the FEDFA rules travelled beyond the industry of power generation.

PN455

The AWU, in that case, was arguing that the FEDFA rules were limited to crane driving in association with power generation. So the Commission, in order to work out what the actual scope of the FEDFA rules was, looked at various decisions and it says this at page 534:

PN456

It is clear from it's history that the FEDFA has extended it's coverage ...(reads)... crane drivers employed in civil construction in Western Australia.

PN457

The relevant rule is set out on page 531 of that decision. Now, that decision, we say, is a decision consistent with the authorities, consistent with the generous interpretation of union rules, and it takes into account accepted industrial usage and the decisions and the decisions and awards of the Commission. It is a decision which we say evidences an approach which we would counsel the Commission in these proceedings to adopt as well and it is the approach taken by Mr Lawson, Commissioner Foggo, Commissioner Whelan and Senior Deputy President Acton.

PN458

COMMISSIONER GRAINGER: But, Mr Freeburn, in that case that you have just pointed us to, the result was not that anyone other than crane drivers were going to be covered by that award, was it?

PN459

MR FREEBURN: No, your Honour.

PN460

COMMISSIONER GRAINGER: The number of industries they might have been involved with was widened out. Is that right?

PN461

MR FREEBURN: If the Commission looks at the rule, which is on page 531, it is about paragraph (f).

PN462

COMMISSIONER GRAINGER: Yes.

PN463

MR FREEBURN: It talks about all classes of engine drivers and has a whole list of particular drivers etcetera connected with the production or utilisation of power. And what the Commission says is regardless of whether you limit all of those occupations which are listed to the industry of production or utilisation of power, what has come to pass is that the industrial acceptance of those words means that the FEDFA had eligibility coverage beyond that industry.

PN464

COMMISSIONER GRAINGER: Yes, but for all classes of those sorts of people in that rule, is that right?

PN465

MR FREEBURN: Yes, that is right. It is not contended in this case that these people employed by some Simon Richard's group don't perform the duties of commercial travellers. What is contended is that they are not employed substantially or at an employer's place of business.

PN466

COMMISSIONER GRAINGER: I am not sure that I understood that was not in contention.

PN467

MR FREEBURN: Well it is not in contention, Commissioner. It was a clear finding by your Honour on the evidence and hasn't been put in issue. What is contended is that these people aren't commercial travellers in the meaning of the rule because they are not employed substantially away from the employer's place of business. It was conceded - - -

PN468

COMMISSIONER GRAINGER: May that not mean that they are not commercial travellers.

PN469

MR FREEBURN: It was conceded before her Honour, that these people performed work which was within the compass of the rule. I can go back to the rule:

PN470

Commercial traveller means a person employed substantially away from the employer's place of business.

PN471

And that is the first part of the, it is like a segment and description this way, that part is in issue. But it goes on to say:

PN472

In or for the purpose of soliciting orders or promoting business of whatsoever kind of conducting market research enquiry and without the ordinary meaning shall include the following -

PN473

that part wasn't in issue before her Honour. And indeed, if I take the Commission to her Honour's finding on the evidence, I referred to it earlier, paragraphs 20 through to 25, she says:

PN474

The evidence has formally revealed that the relevant SIG employees at its call centre are typically involved in making outbound calls to current or potential customers of SIG clients to obtain the customer's order for the client's product or service -

PN475

that is listing orders -

PN476

to ensure receipt of client's product or service - - -

PN477

COMMISSIONER GRAINGER: I am not - what do you say in those paragraphs involves an acceptance by the appellant that these people are commercial travellers?

PN478

MR FREEBURN: The issue hasn't been - that hasn't been put in issue, Commissioner. What has been put in issue is that these people are not employed substantially away from their employer's place of business.

PN479

COMMISSIONER GRAINGER: But that is fine. I am just saying to you I think it may well be that if that were binding, then it may very well mean that they are not commercial travellers, within the meaning of your rules.

PN480

MR FREEBURN: Well then for that approach to apply, Commissioner, you would be - it would be contrary to the awards of the Commission, all of the decisions of the Commission that I have taken the Commission to. And contrary to the plain description in the rules that what, in fact, the work of a commercial traveller is involved in.

PN481

COMMISSIONER GRAINGER: Well that is what is in issue, it seems to me.

PN482

MR FREEBURN: Well, Commissioner, that is not, with respect, what is in issue. What is in issue is whether these people are employed substantially away from the employer's place of business. That is the only issue which is in dispute.

PN483

COMMISSIONER GRAINGER: Yes, it just seems to me, and I don't want to pursue it any further, but it just seems to me that that is - if this Full Bench were to find that they weren't, and it may very well mean that they are not commercial travellers.

PN484

MR FREEBURN: A finding that they are not employed - a finding that they are employed at their employer's place of business would mean that they are not eligible to be members of the organisation. That is as far as any finding on those lines would go. It would be an incorrect approach, we would submit, for the Commission to interpret the union's rule in a way which would mean that "commercial traveller" as a meaning and that the words, "For the purpose of these rules, commercial traveller shall mean", are somehow read out of the rule and that you interpret commercial traveller by some other principle of interpretation.

PN485

JUSTICE GIUDICE: Well, Mr Freeburn, I am sorry to cut across the Commissioner, but the essence of what a commercial traveller shall mean has got a number of components, one of those components is whether they are employed substantially away from the employer's place of business. If you were to be unsuccessful on that point, would it not follow that the employees were not commercial travellers for the purpose of the rule.

PN486

MR FREEBURN: No, no, no, your Honour.

PN487

JUSTICE GIUDICE: I see, all right.

PN488

MR FREEBURN: I mean, there are a number of limbs in which we say these persons can be construed as being employed away from the employer's place of business but the first point that I made, comes with more detail, is that the rule commences, Rule 5(d) commences with the proposition that:

PN489

The union shall also consist of an unlimited number of employees in the industry of the craft, occupation or commercial .....

PN490

So it is not just commercial travellers, it is persons in that industry. There is set out on page 9 a number of examples where, what at first glance would appear to be occupations or activities not encompassed by eligibility rules have been found in accordance with the proper approach for interpretation to, in fact, be covered by those eligibility rules. I don't seek to go into those in any detail. They are put there to demonstrate that there is a broad approach taken and do not approach these questions with a restrictive approach. In the business of insurance, it is considered in Coldham and the Motor Accidents Insurance Board was found to be in the business of insurance in that case.

PN491

Grain Handlers Waterside Workers, as were gardeners in the property of volcano base waterfront teleclerks, electrical and metal tradesman, are waterside workers and I refer to people who work some distance from the waterside being considered to be waterside workers. Customs officers who principally perform law enforcement functions are clerical and administrative officers in the meaning of the relevant union's rules in that case, the customs officers case.

PN492

I have taken the Commission to the FEDFA and the MBA in Western Australia, where the FEDFA was found to have coverage of ..... in the industry generally, even if their eligibility rule limited the list of classifications to work incidental to any engine boiler machinery connected with the production, utilisation and power. And metalliferous mining has been found to include work to involve the construction of road works, water and sewerage works, ..... in a township. And that was ..... Moore ex parte the FMWU.

PN493

So how do, taking that correct approach, do you approach Rule 5(d). We will take that approach in a number of - I said at the start, it is not necessary that this Commission find or determine the precise scope of the rule. All that is necessary is that the Commission may be persuaded that her Honour wasn't in error in concluding that the appellant employed some persons who fell within the scope of the rule. And in a number of ways employees can be said to be employed away from an employer's place of business, notwithstanding that they are physically located at premises occupied by their direct employer.

PN494

Because that is what the appellant has to establish to be successful, is that the words used in our rule, contrary to awards and decisions, mean that. They mean that employees substantially away from the employer's place of business mean that they have to be physically located at premises occupied by their direct employer.

PN495

COMMISSIONER GRAINGER: Well can I just say to you, Mr Freeburn, I personally find that nonsense. I don't want to get into more discussion about it now but I do find that nonsensical. And that it indicates the lack of appreciation of new technology.

PN496

MR FREEBURN: Well, quite the contrary, Commissioner. The argument goes the other way. I mean, as Commissioner Foggo says in her decision, it would be a wrong approach to say, "Well, clerical work has changed because of technology but the work of commercial travellers hasn't".

PN497

COMMISSIONER GRAINGER: No, what that says is the employees use modern technology to conduct business and perform their work away from where they are physically located, they don't. They conduct their business and they perform their work where they are physically located and you will not be able to persuade me otherwise.

PN498

MR FREEBURN: Yes, I won't say anything about the Commission's approach to that question. But what we say, Commissioner, is that the approach that the Commission seems to be convinced of, involves reading those words, business - the rule doesn't say - - -

PN499

COMMISSIONER GRAINGER: No, no, Mr Freeburn, I am talking about these words. I am just saying I am not persuaded - I am putting it to you that these particular words, I am not talking about the interpretation of the rule.

PN500

MR FREEBURN: Yes, Commissioner. Well we don't resile from the words that we put at the bottom of page 9 and the top of page 8 - page 10. Because you don't interpret the rule by saying an employer's place of business is any place where the employer conducts business or is located. I mean, something more than that. If it means that then it begs the question about what employees would be covered within it. It doesn't say employees have to be located away from any premises occupied by the employer. It doesn't say that. It says, "substantially away from the employers place of business". What is the employers place of business for the purpose of the rule? To establish that you take a generous approach. Now, the traditional distinction, the traditional worth that those words perform, was to distinguish between work - sales work carried out at a retail establishment and sales work carried out somewhere else. Look at the situation here - - -

[12.52pm]

PN501

COMMISSIONER GRAINGER: Mr Freeburn, you may misunderstand me. I am only saying - I am not referring to any of the other points, in that list a) to f), I am referring to that one point in saying I don't accept the validity of that point.

PN502

MR FREEBURN: Yes well but we still - I won't labour it, Commissioner, but we still say that that point has to be accepted because the rule doesn't say - the rule refers to business, employers place of business. And to establish that we need to come up with some view about where the employers place of business is. And employed doesn't mean physically located. If it meant physically located it would say physically located. Employed has a range of meanings. It could be when they are first engaged where they are first employed.

PN503

They might be employed by an agency somewhere when they are first engaged and then they subsequently do their work somewhere else. So you know, it is not a phrase that you approach with a narrow view. The employees are employed to do work. It doesn't say place of employment, it says where the employees are employed. The business that the employees are employed in doing takes place in a range of places. And that was the view of Commissioner Whelan and that is a view which is open on the interpretation of the rules taking a generous view. I mean in one sense you can do business anywhere, in a sense.

PN504

Business doesn't have to mean a physical building. None of the business products or services in relation to which the employees perform work is located at or connected to employees physical location. And this gets back to the words that are meant to be done by away from the employers place of business. So these employees work for Simon Richards Group, they promote products which are produced by someone else, located somewhere else and we never see them, they never even come into contact with - they have nothing to do with the production or the location of those products or services.

PN505

SENIOR DEPUTY PRESIDENT WATSON: But is the employers place of business which is the relevant issue here.

PN506

MR FREEBURN: Yes but - - -

PN507

SENIOR DEPUTY PRESIDENT WATSON: Not the person for whom - - -

PN508

MR FREEBURN: But adopting a broad view, adopting a broad view of the rule and taking into account its traditional role, I mean, it is open to say well the employer, for the purposes of the rule, means that the person who produces or who has produced the product, for example, that the employee is soliciting orders for. And they are located well away from that. They are not working in a shop selling stuff. They are located several steps away from the material that they are producing - sorry - the material they are promoting sales for.

PN509

SENIOR DEPUTY PRESIDENT WATSON: Yes, but it is not an issue who the employer is in this case.

PN510

MR FREEBURN: Within a narrow sense, no, the employer is the Simon Richards Group. But for the purpose the rule, we would say, you can adopt a broad meaning and you can't ignore the change which has occurred and that was some of the evidence that was given to the Victorian Commission, that direct selling now takes place through agencies. The role of those words was that the relevant employees are to be employed away from the actual business of an employer who produces goods or who sells goods. So they are away from a shop. They are several steps away in this case. Now, we don't say that - well we do say it - that approach can lead to a number of conclusions. One is that employer can mean - can be construed, within the meaning of the rule, to mean the producer of the products or services for whom the employee is soliciting orders or it can mean the Simon Richards Group.

PN511

But in either way, if you take into account the traditional work of the rule, they are employed away from either of those businesses.

PN512

SENIOR DEPUTY PRESIDENT WATSON: Well going back to the origin, that interpretation would include retail workers, would it not?

PN513

MR FREEBURN: Retail workers?

PN514

SENIOR DEPUTY PRESIDENT WATSON: Yes. Who are substantially away from their target shop, the manufacturers of the clothing, footwear or whatever else they sell and are engaged in promoting business whatever for, you say, that employee?

PN515

MR FREEBURN: Yes.

PN516

SENIOR DEPUTY PRESIDENT WATSON: So that would remove the distinction the Victorian decision seemed to be trying draw.

PN517

MR FREEBURN: It is important that - I just didn't make this issue clear but it is important. The distinction the Victorian Commission was drawing was between the jurisdiction of the boards.

PN518

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN519

MR FREEBURN: It wasn't drawing the distinction in terms of eligibility. It was just working out how the boards should be separated and it came up with that division. But it seemed to accept, implicit in that decision was that providing that employed substantially away from employers place of business was satisfied, that retail work certainly was covered by the Commercial Travellers ..... and indeed it is. I mean, retailers do employ commercial travellers and that is clear from the Victorian decision that - - -

PN520

SENIOR DEPUTY PRESIDENT WATSON: I should be clear, retailers in a shop?

PN521

MR FREEBURN: Yes. No we don't resile from the fact the clearly the rule doesn't go that far.

PN522

SENIOR DEPUTY PRESIDENT WATSON: Yes. But it would if the organisation who produced a good being sold in a retail shop was said to be an employer.

PN523

MR FREEBURN: No, sir, I don't follow, your Honour.

PN524

SENIOR DEPUTY PRESIDENT WATSON: The point I am making, if you say that, for example, a manufacturer of clothing sold in a retail shop is the employer then the person selling them would be promoting the business of a clothing operator substantially away from the clothing operator's place of business.

PN525

MR FREEBURN: No because the manufacturer in those circumstances has no connection with the goods that are sold on to the retailer. The mere fact of the coincidence that they were manufactured by someone wouldn't provide the extension here.

PN526

SENIOR DEPUTY PRESIDENT WATSON: I see, yes, thank you.

PN527

MR FREEBURN: So I make a number of points which were made in some cases, particularly by Commissioner Whelan. None of the business products that I have - none of the customers in respect of whom the employers perform work are located at the same place as the employees, none of the businesses, employers for whom the employees actually promote products and services and solicit orders are located at the employers physical location. Employees are located in a specialised call centre, physically and organisationally separate from the direct marketing agency business of their direct employer.

PN528

And the direct employer employs his direct marketing agency. The business that agency conducts is transacted between it and third party client companies and the work the employees do is for and on behalf of those third party employers. The employees are located away from that business of their employer as well as away from the business of the third party employers.

PN529

JUSTICE GIUDICE: Well the Senior Deputy President didn't adopt that approach, did she?

PN530

MR FREEBURN: No, no, your Honour, but we don't - you know, we can succeed on a number of grounds and we uphold the - we say that the ground on which she found that these employees work away from an employers place of business, is valid. But so are all these other issues. So are all these other ways in which the employees can be regarded as being employed away from their place of business in accordance with the meaning of the rule. Now, I have criticised the appellant's approach to construction and that is that it is a narrow approach. It is inconsistent with authorities which say you take a generous approach. It is inconsistent with established industrial usage.

PN531

And the other vice - another vice that we say is that the approach is that it involves dividing the composite rule into separate parts and assigning a restrictive meaning to the various expressions used in the rule, ignoring the established industrial understanding of the rule as a whole. And I have put in there a quote from the Co-operative Bulk Handling case about that being a dangerous approach to adopt. And that is that they, the employer say well employed means the place - it means where they are located where they do their work from. The physical location of the employee is what employed means rather than where their work may take place.

PN532

They go on to say that an employees place of business is any place where the employer has an operation. And they say that an employee cannot move away by means other than physically moving away. They can't use modern technology to move away from an employers premises. We say that that approach ignores the effect of changing technologies and developments in the industry and we give the citation from Co-operative Bulk Handling where those things need to be taken into account. And in R.V. Isaac in [1985] HCA 80; (1985) 159 CLR 323 at page 331 Gibbs CJ - I haven't given the Commission this authority but what his Honour in that case said:

PN533

A constitutional rule is intended to cover any industries or callings which may in future ...(reads)... if those industries or callings were unknown when the rules were drafted.

PN534

We say that the appellant falls into error in construing the rule by reading industry nature coverage out of the rule. And we say that regard should be had to the industry rule in terms of construing the rules and we give authorities for that proposition. And we note that the industry rules refers to the industry of sales representatives and or commercial travellers. And that has a wider meaning than simply coverage of sales representatives and or commercial travellers. It is the industry of those persons.

PN535

I have already said this but I will repeat it. The appellant's approach involves reading employed substantially away, as being synonymous with the employee being located away. That is the physical location of the employee in relation to premises occupied by the employer. And we refer to Commissioner Whelan in Franklin Mint at paragraph 42. That interpretation as adopted by Commissioner Whelan and in the earlier decisions, Commissioner Lawson and Commissioner Foggo, is consistent with the meaning of employed substantially away being read as the employee being put to work and communicating with potential customers who are located away from the source of the product or service being promoted or for which orders are being solicited.

PN536

It is consistent with the ordinary meaning of the word employed, to read the rule as requiring the employee to be kept busy in work that takes the employee away from the employers place of business but in the meaning of the rule, as I go on to discuss, employee uses modern communication methods to travel beyond the employees physical location to work or be employed. The appellant seeks to read the phrase, "employers place of business" as meaning any premises or location occupied by the employer. There is no warrant for reading of the rule in that way.

PN537

The rule is properly regarded as designed to distinguish between employees who solicit orders or promote business at and to customers who attend at a retail or other facility where products or services are produced or sourced, on the one hand, and employees who solicit orders or promote persons who are located away from the relevant facility, on the other. And we refer to the Victorian decision. What is important is where the promotion or solicitation takes place in relation to the source of the products or services. Historically this could only be done by the employees themselves being physically located away from the retail business of the employer.

PN538

Technology has changed that. And we refer to the Commissioner Foggo decision and Commissioner Whelan decision. Industrial usage and understanding has recognised these changes, in this case and this is what I was referring to earlier. In this case it is instructive to examine the circumstances of the transactions or business in which the employees are employed. Employees are located in a specialised call centre. The employer describes itself as a direct marketing agency, segregates its workforce between its agencies functions and the call centre. Employees at the call centre communicate with customers away from the call centre, away from the marketing agency and away from the client at the call centre, for whom the employees are promoting a product and soliciting orders.

PN539

None of the products or business promoted or solicited by the employees are actually located, produced or otherwise related to the premises from which the employees communicate. All the products, services and businesses that are promoted by the employees are produced by third parties and the clients of a marketing agency and are located away from both the persons who are contacted by the employees and the employees. And that is borne out by the transcript at paragraph 89. In these circumstances there is no sense in regarding the location of the employees as a fact to be considered in isolation, as determinative of eligibility coverage.

PN540

To do that would mean that an employee who works from home would be eligible to be a member or that an employee doing exactly the same work from premises occupied by the employer would cease to be eligible. This is not to say that the location under the rule is irrelevant. We don't read them as nugatory, as was put in the Holmes case. But those words are intended to distinguish between business transacted face to face at the same place where goods and services are produced or sold, for example, retail workers in shops, from business transacted between parties where one or both of them are located away from a place where the goods or services are produced or sold.

PN541

Finally there is another limb which, we say that, we have eligibility coverage of employees of the Simon Richards Group. I will take the Commission to eligibility rules in tab 6. If I go straight to the eligibility rule, which is Rule 5B it is on page 6 of this extract:

PN542

The union shall consist of unlimited number of employees engaged or assisting the reception ...(reads)... packing, delivery -

PN543

etcetera. Now, that is the general, sort of, storing and packing distribution limb of eligibility coverage of the National Union of Workers. I will take the Commission, now, to the transcript and the evidence given about what was some of the work that these employees were involved. At paragraph 88, the witness for the Simon Richards Group, a Ms McLeod. Mr Miller, for the company, asked Ms McLeod to tell Commissioner Moore about the call centre function, what is actually involved in call centre work. They say they do a range of services on behalf of a range of different clients. Halfway down that paragraph the witness say:

PN544

In terms of outbound work we do we look after a large manufacturer and we make...(reads)... for the client to fulfil those orders on a daily basis.

PN545

And again at paragraph 102, it is on - it is towards the end of paragraph 102, just above paragraph 103, on page 8 of 111 of the transcript. The witness says:

PN546

In relation to the food manufacturer that I was talking about, we have a direct link ...(reads)... and it is bagged that evening and sent out with the distribution network the next day.

PN547

We say that that sort of work, alternatively, apart from Rule 5D falls within Rule 5B. And there is a decision of a Full Bench of this Commission in Le Cornu Furniture, tab 23, which supports the submission that we make. There is two judgments in this decision. First is by Senior Deputy President Hancock and Deputy President Maher and the separate decision was by Commissioner Lewin. Now, both decisions are on all fours with the proposition that we put. If I take the Commission, firstly, to page 5. It is the fourth paragraph of that page, the paragraph that commences:

PN548

First a nexus may exist precisely with appointment of commercial travellers. No employer put it ...(reads)... to confine it to commercial travellers.

PN549

And then on page 15, Commissioner Lewin says, and this is the third last paragraph on the page:

PN550

In context I can well accept that there can be a connection between various vocations ...(reads)... and in particular circumstances is a matter of fact.

PN551

What we say in this alternative respect is that some of the work done by Simon Richards Group is part of the distribution of business of clients who employ the Simon Richards Group and that work clearly falls within Rule 5D - sorry, I beg your pardon - Rule 5B.

PN552

JUSTICE GIUDICE: Yes, thank you, Mr Freeburn. Do you have much in reply, Mr McNab?

PN553

MR McNab: I was, in fact, going to ask the Commission whether, in fact, there were matters that you wish me to have responded to. Because and generally I don't want to be in a position of simply re-stating the propositions that have been put initially - - -

PN554

JUSTICE GIUDICE: That is an admirable objective.

PN555

MR McNab: Yes. The only matters that arise are really the last one that has been raised, and the fact that challenges to what the work is or what the actual status of employees is, is a matter of finding of fact in the decision of her Honour. And at paragraph 25 there is a finding of fact that the employees are employed at the call centre:

PN556

The relevant employees rarely leave the call centre during their working hours.

PN557

Now, that is a finding of fact. It would have seemed that some of the submissions of my learned friend were trying to undermine that finding but that is the finding, and the evidence for the finding is set out in the decision. The only other point is there is - it is implicit in the objections that have been taken throughout the proceeding and the fact that the appeal has been lodged that the employer contends that the employees are not commercial travellers because it is implicit in the description of commercial traveller that they are a - work away from their employer's place of business. So if they don't work away from the employer's place of business, they are not commercial travellers for the purposes of the definition. It would seem to be fairly obvious, that point.

PN558

The final point is that that is not a matter that was raised in the decision of her Honour. It has not been argued before her Honour and, furthermore, the requirement still remains that they be commercial travellers. If the Commission pleases.

PN559

JUSTICE GIUDICE: Thank you, Mr McNab. Thank you for your submissions. It will be necessary to reserve our decision and we will now adjourn.

ADJOURNED INDEFINITELY [1.17pm]