C2002/2266, Transcript of Proceedings [2002] AIRCTrans 3539 (12 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER HOFFMAN

C2002/2266

APPEAL UNDER SECTION 45 OF THE ACT
BY CFMEU AGAINST THE DECISION AND ORDER
MADE BY COMMISSIONER ROBERTS AT SYDNEY ON
15 JUNE 2002 IN C2002/3109 (Prints PR 918962
and PR 918963) RE APPLICATION TO STOP OR
PREVENT INDUSTRIAL ACTION

SYDNEY

10.07 AM, TUESDAY, 27 AUGUST 2002

PN1

SENIOR DEPUTY PRESIDENT MARSH: Good morning, I will take appearances, please.

PN2

MR T. SLEVIN: I appear for the appellant.

PN3

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN4

MR G. HATCHER: I seek leave to appear for the respondent.

PN5

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Hatcher.

PN6

MR D. BATT: I appear for the Minister for employment of Workplace Relations intervening under section 44(1) of the Act.

PN7

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Any objections?

PN8

MR SLEVIN: No objection.

PN9

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you, Mr Slevin, Mr Hatcher. Yes, Mr Slevin?

PN10

MR BATT: If the Commission please, I've had some discussions with my learned friends.

PN11

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN12

MR BATT: The Commission may have seen from the mission outline filed on behalf of the Minister although only late last night that the Minister in essence advances two positions. The first of those is a submission seeking to have the Commission refer to the Court certain questions of law for its opinion. The second position is that if the Commission does not accede to the first submission, then the Minister submits that the decision of her Honour, Kenny J, in the Emwest case is incorrect and not binding and ought not be followed.

PN13

Subject to the Commission's position and after my discussions with my learned friends, I was going to see whether the Commission would entertain my submissions at least on the referral question first because really that is logical anterior to anything else and indeed if referral is granted, then it would at least for the present time dispose of the other matters that would otherwise occupy the Commission today.

PN14

SENIOR DEPUTY PRESIDENT MARSH: Might the decision with respect to referral depend on the outcome of the merits of the appeal?

PN15

MR BATT: Certainly the submission in support of referral has as an important underpinning of it the contention of the Emwest decision is of planned out if not incorrect. So to that extend the Commission's views on the merits of that issue will affect, in my submission, the referral arguments. As to whether the decision of the Commission or the view of the Commission on the merits of the issues to be argued by the parties as opposed to the intervener, that may be a different issue, your Honour, because the Minister's submissions are perhaps - if I can put it at a more general level of law, and indeed the Minister does not make submissions as to the factual dispute between the parties or the question whether - - -

PN16

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand that, yes.

PN17

MR BATT: If the Commission would hear me on the referral application, I will take the Commission to that.

PN18

SENIOR DEPUTY PRESIDENT MARSH: Yes, all right.

PN19

MR BATT: Can I commence by stating that subject to anything my learned friends may say, I understand that my learned friend for the employer consents to referral if the Commission is minded to make the reference and that if the Commission were minded to consider the correctness of Emwest which Mr Slevin would oppose but if the Commission were minded to do that, then as I understand his position he would consent to referral as well, rather than the question of the correctiveness of Emwest being agitated before the Commission today.

PN20

As I said, he would oppose the Commission doing that. In summary, the submission for referral is that in this proceeding or in this matter, there arises an important question of law affecting not only the disposition of this matter but also both the scheme and operation of the Act and the work of the Commission in discharging its function of making stop orders under section 127 of the Act. That issue is whether as her Honour, Kenny J, held in the Emwest decision to which I will take the Commission in more detail subsequently, it is the case that there can be protected action in circumstances where there is a certified agreement affecting the relevant employees which is not past its normal expiry date.

PN21

Her Honour in short held that that can be so if the matter, the subject of the action, is a matter not dealt with in the certified agreement. The submission for the Minister is that in fact the plain affect of section 170MN of the Act is that if there is a certified agreement which has not yet reached its normal expiry date in relation to the relevant employees, then there can be no protected action by virtue of section 170MN. It would then follow that a stop order could be issued under section 127.

PN22

As I have said, that question is characterised by the Minister as firstly an important one affecting both the work of this Commission and the matter presently before it. It is also characterised by the Minister as a matter arising in this proceeding which is a requirement for reference under section 46(1) because before one can reach the question which has so far been agitated between the parties to this matter of whether a certain issue was or was not dealt with in the relevant certified agreement which is the issue upon which application of Emwest depends.

PN23

There arises a logically anterior question of whether that can even matter because of the Minister's submission if there be a certified agreement in force, that is the end of the question whether there can be protected action. The referral application made by the Minister is underpinned by the notion that there exists plain doubt as to the correctness in the Emwest decision. It is not the only ingredient of the submission but it underpins that submission. If I can with that introduction take the Commission to section 46 of the Act.

PN24

The Commission will see that section 46(1) provides that the Commission may refer a question of law arising in a matter before the Commission for the opinion of the Court. Now, your Honours and Commissioner, I have dealt with that section in my outline and what I propose to do is elaborate my oral submissions by reference to the relevant parts of my outline of submission and the section is dealt with at paragraph 6 and following of the outline.

PN25

Now, ordinary reading of section 46(1) would suggest a broad discretion to the Commission as to whether to make a reference and whilst there was initially some debate about that question, it is now settled in the Commission and the Minister adopts no different view that there is indeed a broad discretion. It is not open to the parties by their own request to require a reference. It is matter for the decision of the Commission on application. I have a folder, indeed three folders of the authorities that are referred to in my outline.

PN26

I don't wish to take the Commission to all of them by any means and the folder may appear somewhat burdensome. It is not I hope going to prove burdensome as it may appear but could I hand up to the members of the Commission each a folder of each authority referred to in the outline for such references the Commission may desire to make to it. I will take, if I may, the members of the Commission to some of the cases in it specifically in the course of my oral submissions. A copy will be provided to my learned friends.

PN27

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much, Mr Batt.

PN28

MR BATT: I hope that its utility is met by its weight. Now, I hand it up at this juncture because the most useful way by which I can elaborate my submissions on the reference question is to take the members of the Commission first to the case of Finemores v Papa which is at tab 1 of the folder and I do so briefly simply to try to elaborate the principles which have to date informed the Commission when a reference under section 46(1) has been sought. If the members have that decision, if I can take you first to page 89, the second full paragraph on the page. It is recorded that:

PN29

Mr Bell of counsel requested that certain questions of law arising on the grounds of an appeal being referred pursuant to section 46.

PN30

Those matters are then set out or those questions and it is then recited the grounds by which the referral submission was supported including the fundamental importance of those matters for the determination of the appeals, the uncertainty of the law on those matters and that it was preferable that there be a final determination of the legal questions before the Commission proceeds to deal with the merits of the appeal. Insofar as those considerations or similar considerations are applicable here, in my submission, they largely are, then I adopt them.

PN31

Then the Commission having set out additional aspects of Mr Bell's submissions, over the page on page 90 at about point 4 or 5 of the page, your Honours and Mr Commissioner will see the statement:

PN32

It is clear that under section 46 of the Act, the Commission has given a discretion as to whether a question of law arising in a matter should be referred to the Court.

PN33

That is a reference to the fact that it is no longer an issue, that there is a discretion. Then there is set out a passage which is often cited on this question from the Australian Social Worker's union case. I won't take you to that, it having been set out here but it is included in the folder and the salient aspects there are that section 110 of course provides the manner by which the Commission is to discharge its functions. Questions of law often arise in proceedings in the Commission and the resolution of them is within the jurisdiction of the Commission.

PN34

However, an important one I would submit be that a determination is not conclusive. Then and the Minister does not submit any contrary position, there is reference in the quoted passage to the fact that a party cannot by a request require a reference and then really the gravemente of the position at the end of the quote:

PN35

In our view whether a question of law is referred is a matter for the Commission to determine having regard to the circumstances in which the question of reference arises.

PN36

This case is useful if I might respectfully say because it consolidates the previous relevant authority. One of them is the Hoyts Corporation decision and that is referred to immediately after the passage I have been taking you to where it is recited that the criteria to be considered are the nature of the question, the context in which it arises and the nature of the delay that may be involved by the reference. Those approaches are endorsed and then there's reference to the need to avoid the frustration by legal manoeuvres of one or other party before the Commission.

PN37

In my respectful submission, there could be nor suggestion that that is the characterisation of the position here and particularly given the position of the other parties as I've recounted it to the Commission. Then notably in the final paragraph of the decision or the final two paragraphs, the Commission decides to make the reference. Now, it is often said that it is very rare for the Commission to make a reference. It is certainly the case that it is not common but Finemores provides an example of a matter where in fact that did occur.

PN38

Indeed, in my respectful submission, the very presence of the section shows that in an appropriate case there is to be a reference and whilst the content of section 110 of the Act specifying the matter by which the Commission is to discharge its functions is a consideration which the Commission has presently found relevant and to militate against a reference. The presence of section 110 can't dispose of each and every application for a reference. The very presence of section 46(1) shows that there is to be a reference in an appropriate case.

PN39

Now, your Honours and Mr Commissioner, that brief survey in essence as I can collate them identifies the relevant principles that have been adopted by the Commission and perhaps one ends up where one starts which is a discretion for the Commission. It must be, in my respectful submission, exercised by reference to the circumstances of the particular case. With that as my submission, can I take you then to first the background which the questions which are sought to be referred arise against. Secondly, the questions themselves briefly and thirdly, the reasons for reference.

PN40

If I can take the Commission briefly back to the Act and to section 127 of it. Of course the members of the Commissions do not need to be reminded of the existence or content of this section but it is a starting point for the statutory framework which I need to recount to. It provides of course the discretion in the specified circumstances for the making by the Commission of an order giving directions that industrial action threatened or probable or occurring stop or not occur.

PN41

An important provision, an important function of the Commission. In my submission a significant consideration in support of the referral application is that the matters that are sought to be referred will, depending upon their determination by the Court, significantly affect the circumstances in which the Commission can make an order pursuant to the section. That is the case because of in sequence firstly, the content of section 170MT(1) which again as the Commission will be aware provides that an order under section 127 does not apply a protected action.

PN42

In effect, if the action is protected, there won't be a 127 order. Then as one follows the statutory maze, one is taken to section 170ML which of course specifies the action which the immunity provisions of 170MT apply, namely what is protected action. So that when one comes to the question in a 127 application of whether the application will lie, one is directed to at this stage the content of 170ML to see if the action is protected because if it is, there can't be the 127 order.

PN43

However, 170ML is of course qualified by 170MN and we now approach the essence of the issue for referral and it is the salient provision for the disposition of the present matter both on the submissions of the Minister and of the parties. So I take the Commission to it in a little more detail. Now, the heading is, "Industrial action", etcetera:

PN44

Must not be taken until after nominal expiry date of certain agreements and awards.

PN45

The substantive provisions of relevance are primarily subsection (1) and (3). Subsection (1) provides relevantly that from the time when a certified agreement, it is as plain as that:

PN46

When a certified agreement comes into operation until its normal expiry date is passed an employee, organisation or officer covered by subsection (3) must not -

PN47

and then they set out a certain purpose -

PN48

must not for the purpose of supporting or advancing claims against the employer in respect to the employment of employees whose employment is subject to the agreement.

PN49

That is the agreement referred to in the opening words of the section:

PN50

must not engage in industrial action.

PN51

The important corollary of that is subsection (3) which says if you contravene one, the action is not protected action. Now, I don't wish to go over unnecessary ground, but the result is that if the proscription in subsection of 170MN applies then action which otherwise would be protected is not and having regard to the sections to which I earlier took you therefore a 127 order will lie. If 170MN(1) does not apply and the action remains protected action then the order will not lie. That is the statutory background. The interpretation, if I might be so bold as to say, commonly either adopted or assumed before the Emwest decision was that when 170MN(1) referred to claims against the employer in respect to the employment of employees whose employment was subject to the pre-nominal expiry date certified agreement, it meant any action for any claim in respect of those employees.

PN52

One didn't look at the certified agreement that was in force and say:

PN53

Does this agreement deal with the issue that is sought to be made the subject of action?

PN54

One simply said:

PN55

There's a certified agreement in force it hasn't reached its nominal expiry date. The action that is sought to be taken is to support or advance claims in respect of the employment of the relevant employees.

PN56

And plain as daylight, 170MN(1) says, with 170MN(3): it is not protected action. Now, as I have said, this does not arise in a vacuum, it arises in the context of the 127 function of this Commission. That was the position until the decision in Emwest. As I endeavoured to outline in the most brief form in my opening statements, the decision in Emwest - and I will take you to it further, was to the effect that the provision that I have just taken the Commission to did not have the meaning and the operation which, as I described it, had been either adopted or assumed.

PN57

It was held in that case that the phase against the employer in respect to the employment of employees really meant against the employer in respect of matters dealt with in the certified agreement for the employment of employees. The result of that holding was that in any case where a bargaining period was instituted in relation to a proposed new certified agreement where there was already on foot a pre-nominal expiry date certified agreement for the same employees there could be protected action which would not be subject to a 127 order.

PN58

If one would hold the view that the matter sought to be the subject of the new agreement was not dealt with in the old agreement, one was driven to an analysis of the agreement on foot and the proposed new agreement as perhaps particularised in the notice for the bargaining period to be initiated. One had to analysed whether properly construed you would say that the new agreement was going to deal with something already dealt with or not. If it wasn't, you could have protected action and indeed the present case is a very illustration of the need, post Emwest, for that inquiry.

PN59

The dispute between the parties is: how do you categorise what the first agreement covered and what the proposed new agreement would cover? Now, the Minister seeks to refer questions to the Court for its opinion which are really the question whether that interpretation is so. The Minister seeks to have the Court referred to it the question whether there can be protected action given 170MN(1) when there is a pre-nominal expiry date certified agreement and, in particular, whether the question of whether a particular subject matter is or isn't dealt with in the first agreement, is the determinant of that question.

PN60

Against that background can I take the Commission now to paragraph 5 of my outline which sets out the questions which the Minister has formulated for reference? I should say that if there is a reference, order 50 of the Federal Court Rules applies and requires a case to be stated which would need to set out such facts as were salient and then the question. So what I have here is the end game, the question, but if there is a reference there would need to be a reformulation to some degree of the verbiage.

PN61

The first question is, and it is the issue that I have endeavoured to describe, on the proper interpretation of the Act:

PN62

Can industrial action taken for the purpose of supporting or advancing a claim in relation to employees in respect of whom there is a certified agreement which has not passed it nominal expiry date be protected action, whether a claim relates to a matter or issue which is not dealt with a certified agreement?

PN63

Questions (b) and (c) are a slightly more general way of posing the same question. There perhaps, as a safe guard because when one descends to the particularity of the question in (a) depending upon the views of the Court took it might be that the question ended up not concentrating the issue and leading to the relevant answer but (b) and (c) really flow from (a) and the question is:

PN64

Can there be, or is there protected action if the proposed action is in relation to a matter not dealt with in a certified agreement on foot which is pre its nominal expiry date?

PN65

I have set out in paragraph 6 and 7 of the outline the interpretation of the section which has been adopted by the Commission and I have already dealt with those matters. Can I then take you - - -

PN66

SENIOR DEPUTY PRESIDENT MARSH: Can I just take you back to question (a)? That refers to a situation whether or not there is a second, if I can use that word, certified agreement?

PN67

MR BATT: A proposed second agreement, your Honour, because what will happen is that - and the present case provides a useful illustration - - -

PN68

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN69

MR BATT: There was on foot the Bulga Coal agreement, if I can call it that, after a history of discussion and some difficulty between the parties there was served notice to initiate a bargaining period for a new agreement and it was said that that agreement, the proposed new agreement, would deal with fatigue management breaks, which it was said were not dealt with in the first agreement and so the second agreement was a proposed agreement.

PN70

PN71

SENIOR DEPUTY PRESIDENT MARSH: Yes. I understand that, but in Emwest there was a second certified agreement covering redundancy.

PN72

MR BATT: I beg your pardon, I may not have heard you refer to Emwest. Yes, in Emwest - - -

PN73

SENIOR DEPUTY PRESIDENT MARSH: No, I didn't, I said that (a) would cover both situations.

PN74

MR BATT: It would, and it is designed to.

PN75

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN76

MR BATT: Yes.

PN77

SENIOR DEPUTY PRESIDENT MARSH: Yes, that is the point of my question.

PN78

MR BATT: Yes, it is.

PN79

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand, thank you.

PN80

MR BATT: Against the rather labyrinthine statutory background and the formulation of the questions, can I take you then to the particular consideration upon which the Minister relies in support of the reference, that is to say the basis upon which the Minister respectfully urges the Commission to make the reference in its discretion, but those matters are set out in summary form at paragraph 8 of the outline. The first is that a primary issue in the matter, in the present matter that is, a proper interpretation of section 170MN(1) and referral of the question set out would lead to a determination of that issue. So that whilst the - - -

PN81

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can I just interrupt you? Does it not only come up if you were to conclude that the Commissioner is in error in his finding at paragraph 23(4) namely, that in these circumstances this case is to be distinguished from Emwest and therefore Emwest really does not come in to play?

PN82

MR BATT: Yes, I understand the question, if I might say, and my answer is "no" but I understand how the question arises. My question is "no" for this reason, with respect, if one took the view that determination of the question before the Commissioner on the basis of which he used to determine it meant that Emwest did not come up, that would only be because the Commissioner had not addressed a question which was logically and necessarily anterior to the view that he took and had, as it were, assumed away the issue, because if indeed the interpretation of Emwest which the Minister - I beg your pardon, if indeed the interpretation of the section which the Minister urges is the case then the issue does squarely arise.

PN83

The fact that it may not be addressed in the decision, and I say this with no disrespect at all to the learned Commissioner, does not mean that as a matter of law when thinking through the logical steps the question does not arise because it is there. It is a question of whether it is elucidated. Might I also add this. The wording of section 46(1) relates to questions arising in the matter and the Minister having intervened under the section and being on normal principles of party, at least in a special way he is still a party to the matter, and making as he does the submissions that follow in the alternative, namely that Emwest is wrong, in my respectful submission, the issue does arise in the matter by virtue of the submissions made by the Minister and it is for that reason that paragraph 8(a) includes the clause:

PN84

...especially having regard to the submissions made by the Minister by...

PN85

but whilst I make that submission, your Honour, I will also submit that indeed one does not get to that point because of the answer that I endeavour to give your first.

PN86

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just so as I am clearer, Mr Batt, you are saying either that Commissioner Roberts did not or did not adequately then deal with the decision in Emwest?

PN87

MR BATT: I beg your pardon, Commissioner?

PN88

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I am just seeking to clarify your submission. Are you saying that Commissioner Roberts either did not or did not adequately deal with the decision in Emwest in his decision?

PN89

MR BATT: He dealt with it adequately, given the submissions made before him by the parties in that he did not fail to address the submission made to him and I face square on, the fact that the Commissioner's decision is wider that the manner in which the parties advance their cases below but for the purposes of the phrase in section 46(1), a matter of law - an issue of law arising in the matter, the Commissioner did not deal with an issue of law which should probably be seen to arise in the matter.

PN90

In other words, had the issue been dealt with by the Commissioner he would not have got to the question, in my submission, he would not have got to the question of whether the team management breaks were dealt with in the relevant agreement because he would have concluded as an anterior step that, it didn't matter whether they were or not on the proper interpretation of the section. Perhaps, if you look at it another way, if the question were referred to the Court, and if the Court held that one does not get to whether an issue is or isn't in the earlier agreement because 170MN(1) means that there can be no protected action in respect of employees who have a pre nominal expiry date certified agreement.

PN91

That would dispose of the matter and to that extent, or in that fashion, the issue arises in the matter and it arises also because of the submission in advance by the Minister. In subsection (b), I submit that the interpretation of the section is of course, quintessentially an issue of war that falls fairly and squarely both within the scope of section 46(1) and as a result, is exactly the type of matter that it is appropriate to refer further and related in (c):

PN92

I respectfully submit that in the present matter the relevant factual background has been fully determined.

PN93

A very important consideration of course because the section is for reference of questions of war and there are many cases, differing reports where stated cases of legal questions have become difficult because there were factual uncertainties. Here, the question is simply one of law, and so one barely gets to the facts. Insofar as one does, they are fully determined.

PN94

Then, the next consideration which is submitted to militate strongly in favour of referral is the significance of the question both for the present matter but also for the functions of this Commission in disposing of section 127 applications brought for it and more generally, for the scheme in operation of the Act and the Part 6B in particular because the decision in them substantially changes the nature of the position which arises once a certain part of the agreement is in force and in my respectful submission, the position which results is complicated, uncertain and contrary to the policy of the Act.

PN95

So that a reference, in my submission, is both appropriate and should be made in light of the consequences and the import of the question, not only for the Act but particularly for this Commission. My submission, whilst it may not have been an issue addressed in previous cases, it is an appropriate matter for the Commission to have regard to, whether an answer from the Court on a question seemed to be in doubt, and I have to come to that issue, I appreciate but whether an answer from the Court which determined an issue where there is doubt, would be of importance for the Commission's future workings and in my submission, it plainly would be because it will substantially affect when section 127 orders can and cannot lie, or to put it more precisely, can or cannot apply.

PN96

Necessarily to my submission or at least, importantly for it, in (e), is the submission that the one relevant decision of the Court, namely Emwest, relevant for the interpretation of the section is plainly open to doubt. Indeed, the Minister respectfully submits that the decision is in error but for the purposes of referral, it needs to be put no higher than: plainly open to doubt. If the Commission concludes that that is the case, and given the importance of the question, then in my submission, it would be an appropriate case to make the referral and in that context I would refer the Commission back to Finemores case.

PN97

That then directs me to the submission that the Commission, with all respect to her Honour Kenny J, should conclude that the decision in Emwest is open to plain doubt to the extent that it would be appropriate and desirable to refer the question or to refer to the Court, similar questions as arose in that case. Might I preface that submission by noting to the Commission that there have now been since Emwest was decided in February of this year, at least three cases where the very issue has arisen, namely whether a particular matter was dealt with, whatever that might be seen to mean, in a certified agreement that was on foot and pre nominal expiry date or not because that issue would in each of these three cases determine whether the action was protected.

PN98

The first is the present matter, and can I just give the Commission references to the other two of which I and my instructors are aware. National Fleet Network v AMWU, a decision of Munro J, 14 June of this year, where his Honour distinguished Emwest because an unexpired certified agreement covered the field of relevant employment, on his Honour's interpretation. That is PR918894 and then, thirdly, in addition to that one and the present matter, there is the matter of Bradkin Industrial v AMWU, a decision of Spencer of 18 February, it is a section 99 matter, and the Commissioner's decision was made on a basis similar to that of the Commissioner in the present case.

PN99

In my submission, the fact that in 6 months there have been three cases where this issue of deciding what and what should be seen to be dealt with in the certified agreement including the present matter which is now before this Full Bench is an indication of the difficulties created by Emwest and the benefit and the desirability of making a reference. If a contrary position to that established in Emwest were established the question would not arise. The question which has exercised the Commission in those three cases which does create uncertainty for the parties, it would not arise because the position would be such that one would not be directed to the inquiry of what is and isn't dealt with in the agreement.

PN100

In paragraph 12, I deal with the fact that Emwest has been decided and, of course, constitutes authority of a single Judge of the Court bearing on the question, and I submit that that fact does not mean that the Commission should decline to make the reference. I should say to the members that there are repeated references to the questions of law set out in paragraph 6 throughout my submissions. That will, I'm afraid, not assist because the reference should be to paragraph 5 but it is plainly to the questions of law that are sought to be referred.

PN101

SENIOR DEPUTY PRESIDENT MARSH: Mr Batt, can I just interrupt you for completeness to put on the record. There is a Full Bench decision reserved with respect to a matter where the member of the Commission has said to err because he didn't follow Emwest.

PN102

MR BATT: Is that the Atlas to your case?

PN103

SENIOR DEPUTY PRESIDENT MARSH: No, it is Detmold Printing/AMWU.

PN104

MR BATT: All right. Thank you, your Honour. I wasn't aware of that but I will endeavour to look at it during the course of today, and if I need to either add or vary what I said in any way, then I will do so. Now, in paragraph 12, I submit that, notwithstanding Emwest, there should still be a reference. Indeed, one could submit that if it weren't for Emwest, there wouldn't need to be a reference because the position under the section is so plain that it is plain that it does not direct the inquiry that Emwest directs, that the Commission would proceed on the basis that protected action couldn't occur during the currency of an agreement.

PN105

It is only given Emwest that the issue arises, so to that extent, absent Emwest - no referral, with Emwest - we submit there should be a referral. The gravamen of the submission is that Emwest is plainly open to real doubt. The Minister puts it higher and says, with respect, wrong but enough that there's real doubt. Before this Commission by this Full Bench proceeds to apply it and, as it were, cement the position, it would be appropriate, for the reasons I've given, to make the reference. In 12B, I record that Emwest is the only decision of the Court on the point and it is a single instance decision.

PN106

Paragraph 12C is there, Members, for two reasons. Firstly, because, in my submission, it supports the application for referral and, secondly, that the Commission is properly appraised of the procedural history of Emwest. There was no appeal against Emwest by the parties to it so that there was no opportunity for a Full Court to consider the question. For whatever reason, there was no appeal. There was an application by the Australian Industry Group to appeal which needed leave because the AIG was not a party.

PN107

The Minister intervened in support of that and the application was hotly opposed by the union, not only on the basis that AIG had no sufficient interest, but also for constitutional reasons which I won't trouble you with but which, essentially, related to the submission that if the parties didn't seek to appeal, then there was nothing by way of a matter that the Court had jurisdiction to entertain. That motion for leave to appeal was heard early this year. It has not yet been decided so unless the Court allows that motion, then the decision in Emwest will stand unless there's a referral here without being the subject of any appeal, notwithstanding the matters that I will submit as to its doubt.

PN108

Finally, I make the submission that this Full Bench is not bound to follow Emwest. If contrary to that submission, which I will develop, the Commission considers that it is bound to follow Emwest, then I nevertheless maintain the referral application because if the Commission is bound to follow Emwest but can see the basis for the submission as to the doubt concerning its correctness, then looking at it in another way, in my submission, it would be equally appropriate to make the reference. If the Commission is bound but considers that there's a important question where there could be doubt, then a reference is the way to deal with it.

PN109

In my submission, in any event, the Commission is not bound to follow Emwest. I develop in the outline at paragraph 25, and following the bases upon which the Minister submits that Emwest is, at the least, open to claim doubt, they appear there, your Honours and Commissioner, in the context of the secondary position of the Minister which is that even if there's no referral, the Commission should not follow Emwest. I do need to take you to them now because the importance for the referral question is the submission that Emwest is open to and, indeed, plainly should be doubted.

PN110

Once, in my submission, it is accepted that that is the case, and given the importance of the question, then the appropriateness of referral, especially given the other parties' positions, becomes clear. In paragraph 25, I set out the submission of the Minister on the operation of the section, and note that an equivalent constraint would apply to an employer under the relevant subsection of 170ME and under subsection 170MN(4). I have then gone to develop the submission. I should, though, take the Commission briefly to Emwest, if I could do that.

PN111

It is in the folder that you have at tab 6. It will, in any event, your Honours and Commissioner, be the subject of argument by my learned friends if one reaches that stage on its application in the present case, so I trust that I'm not trenching on unnecessary grounds but, certainly from my application, it is necessary. Can I take you, as briefly as possible, to the background of the case and the holding of her Honour. In paragraph 1, her Honour records the relief that was sought upon the ground of an alleged contravention of 170MN.

PN112

Then in paragraph 4, her Honour sets out the certified agreements that had applied in relation to Emwest over time. This, in a way, touches upon the question that your Honour - - -

PN113

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN114

MR BATT: - - - Presiding Member, asked me earlier because the history of the agreements was not simple in the Emwest case but for present purposes, having taken you just briefly to that list, can I take you to paragraphs 10 and 11 which set out the really relevant position. That is that there was what is referred to as the 2000 agreement certified on 30 April 2001, and with a nominal expiry date of June 2003. Now, Emwest and the union were parties and it applied to all the employees at the Newport site. Then in paragraph 11, it is set out that the agreement covered a broad range of employment conditions but it did not contain any provisions dealing directly with redundancy and then a clause dealing with inconsistencies are set out.

PN115

So where one is going is that there's the 2000 agreement on foot. Its nominal expiry date is not for some months. It does not cover redundancy and then, as appears from paragraphs 13 and following, the union initiated a bargaining period by which it sought to deal with the question of redundancy. Can I draw the Commission's attention to the end of paragraph 13 where it is set out that in August 2000, the parties had agreed to drop redundancy from the negotiations for the 2000 agreement. It had initially been something that was proposed to be dealt with in the agreement.

PN116

Whilst I have skipped over it, that is, in fact, set out in the earlier paragraphs but in the course of negotiations for the first agreement, the parties decided not to make specific provision for redundancy and whilst that is not referred to expressly by her Honour, subsequently it can be seen to cover the circumstances of - or to affect the circumstances in which the question arose. Paragraph 20 sets out the instigation of - well, the intention to take industrial action concerning redundancy, and then in paragraph 21 and paragraph 22, her Honour records the salient submissions of the parties.

PN117

The Commission will see that at the end of 21, it is recorded that Emwest submits that the union has engaged in action contrary to 170MN(1), and that in the circumstances of the case, that section prohibited the union engaging in any industrial action in support of the employees' redundancy claims because their employment remained subject to the 2000 agreement whose non-expiry date hadn't passed. That had been the assumed meaning of the section but as paragraph 22 records, the union submitted that 170MN(1) didn't prohibit the action because redundancy was not dealt with in the agreement.

PN118

There are other issues that arise in the case that I don't mean to take the Commission to. So that was the genesis of the argument. Having dealt with other matters that don't need to trouble the Commission, her Honour turns to the issue that does at paragraphs 42 and following of her decision. It is important to follow her Honour's reasoning. She sets out the section and says that its effect is straightforward enough. In paragraph 42, half way down, she records that:

PN119

The prohibition against the action is, on any view, a limited one and that that reflects a statutory assumption that when parties make an agreement with respect to employment, they do so on the basis that they will not resort to action during the currency of the agreement in respect of the matters upon which they have reached agreement.

PN120

In the Minister's submission, it is those last words which contain the flaw and, indeed, given the language of the legislation, the claim flaw. Then, fundamental to her Honour's decision, in paragraph 43, she says:

PN121

The issue in this case arises out of the ambiguity created by the use of the expression, "in respect of the employment of employees who are employed subject to the agreement.

PN122

The Minister submits that given the terms of the language, and having regard too to the consequences of the different interpretations, that there isn't that ambiguity. I will take you to that in a moment, but there simply isn't an ambiguity. The expression is as plain as a pike staff. If that is the case, then one does not get into second reading speeches and other considerations because the section says what it says, and it should be construed as such. Her Honour refers, in line 4, at least the fourth line of my print, to the two supposed meanings which are possible. She says:

PN123

The whole expression is, however, capable of having more than one meaning. It may be that it is referring to the employment of employees where this employment is specifically subject to the agreement.

PN124

Then that possible reading is, as it were, recharacterised where she says:

PN125

That is, the expression may refer to only the matters actually agreed upon by the parties in the agreement.

PN126

The heart of the Minister's submission, if the Commission pleases, is that when one reads the phrase, "claims in respect of the employment of employees whose employment is subject to the agreement", there's no possible basis, with respect, to read in those words, to read in, effectively, in relation to the matters that are dealt with in the agreement but not other matters. If there's no basis to read those words in, then that ends the need to inquire into ambiguity and to - it ends the possibility of the decision that was adopted ultimately by her Honour.

PN127

Then her Honour refers to a decision Ryan J in Kilpatrick Green, to which I will return briefly, and then in 45, she records the alternative construction which really, the Minister would submit, is the construction that the words have:

PN128

The employment of employees where this employment is, in some way or other, subject to the agreement.

PN129

Now, those words are added in in brackets but if you take the words out, you have the same clause. No words need to be added for the interpretation that her Honour rejected because it is what the section says. Her Honour then turns, in paragraph 46, given her finding of ambiguity, to look at the relevant statutory objects and to construe the section. She records both parts of the object set out in section 3, and at the end of paragraph 46, she records the object of Part 6B, set out in section 170L, which is to facilitate the making and certifying of agreements at a single business, or part of a single business, level.

PN130

In paragraph 47, her Honour records, half way down in brackets, that she had not been assisted in resolving this issue by the second reading speech or the Explanatory Memorandum. I will take the Commission briefly to the Explanatory Memorandum because, in fact, in the Minister's respectful submission, it does plainly support the ordinary interpretation of the section. In paragraph 48, her Honour says:

PN131

The question of the construction of the expression is not free from doubt.

PN132

Then she records her own view that:

PN133

The construction that Emwest favours is, perhaps, the most obvious and results in a relatively straightforward application of the provision.

PN134

Notwithstanding that finding, her Honour does not accept that interpretation. The Minister submits that when the expression is plain and obvious, and results in straightforward application, then adoption of another interpretation can't be correct, and for the present purposes, must plainly be open to real doubt. In paragraph 49, her Honour records that importantly for her decision is that the Act contemplates that there can be more than one certified agreement in force at any one time and so much is, of course, the case.

PN135

Her Honour subsequently finds that that is of - it is really the operative consideration for her Honour. If I can take the Commission to paragraphs 52 and 53, her Honour returns to the fact that there can be more than one agreement. She refers to the Statutory Provisions that she has set out and says that nothing in them support the position of the employer. Then, in paragraph 53, and having regard to the object sections, she says:

PN136

It is difficult to see how the making of certified agreements will be facilitated if the employer's position...

PN137

which is the Minister's, we accept that, and her Honour says - she quotes, with approval, the union submissions:

PN138

Employees subject to true agreements dealing with different topics and expiring on different days will be hamstrung by the differing expiry dates and prevented from taking action in relation to one agreement, merely because another agreement had not yet expired.

PN139

Then she records a particular submission based on how, as the union contended, the union would have been constrained if the particular redundancy agreement had been in force, and the general agreement hadn't. The submission of the Minister is that there's no difficulty at all, with respect, because - well, for two reasons. Firstly, when a party comes to make a second agreement, if one does, one can make the nominal expiry date the same as that in the first. They will then expire on the same date and there won't be this hamstringing which is referred to because of differing expiry dates.

PN140

The second is one must not lose sight of what is at issue here. What is at issue is protected action. The interpretation which accords with the plain reading of the section does not prevent the making of separate agreements. It does not prevent bargaining. It merely means that if parties choose to enter into a certified agreement concerning the employment of employees, then as a part of the certainty that that gives rise to, there can't be protected action by the employees while the agreement is on foot. Now, in the Ministers respectful submission, that is plainly the very position that the whole certification of agreement process is designed to achieve.

PN141

If the parties choose to certify an agreement, then why should there be able to be protected action in relation to issues that it was decided, or for whatever reason, were not in that agreement. There can be arguing about them. They can be the subject of an agreement and when the nominal expiry date of the one that was entered into for the purposes of certainty and specifying the terms of employment has expired, then there can be protected action. The Minister's submission is that, in fact, the very plain purpose of section 170MN(1) is to specify the inability to take protected action, which is granted only in limited circumstances anyway, when there's a certified agreement on foot.

PN142

It leads to no improper result if that interpretation is accepted. If it is rejected, then it does lead to results that are contrary to the scheme of the Act. In paragraph 54, her Honour refers to the contention of Emwest that the absurdities referred to didn't arise and she rejects the submission. Effectively, in part, the submission I have just made is that submission.

PN143

At paragraph 55 at about the fourth line her Honour rejects the contention that the interpretation which she favoured would severely limit the scope of 170MN and undermine the purpose and effect of parties reaching agreements and having them certified. Her Honour says, well, assuming the policy behind the section is to encourage one to adhere to the particular bargain struck then it would not because the interpretation which she favours does not preclude bargaining about matters not in the agreement but does preclude bargaining - I beg your pardon, protective action - in respect of matters not dealt with in the agreement.

PN144

That is on the assumption that that is the statutory policy and in the Minister's respectful submission, plainly construction of the Act and particularly Part 6B and especially 170MN read with the associated sections, shows that there is a limited right to protective action but nothing to suggest that that right should be available once an agreement has been certified and remains on foot and indeed to the contrary, so the assumption which her Honour makes to reject the submission there is not the proper assumption, with respect.

PN145

Finally, paragraph 56, her Honour records that if the construction which she actually adopts is adopted then there will be issues about whether a matter was, as the phrase is used, was dealt with in an agreement. Now, they are the very issues that have arisen here and in National Fleet and in the third case that I referred the Commission to and whilst, as her Honour said, it is entirely the case that the Courts and the Commission and others in the field are familiar with these issues, that does not mean that those issues should be permitted to arise. They are complicated, they give rise to uncertainty and they are contrary to the plain wording of the phrase of the Act which simply says: no protected action if there is on foot a certified agreement concerning the employment of the relevant employees. Simply the employment of the employees.

PN146

Now, Commission, that is the rationale and reasoning of her Honour. In paragraphs 28 and following, having submitted in 27 that there is no basis in the Act for that interpretation, I set out in some detail the criticisms which may be made of it and in essence they are first, there is no ambiguity so there is no warrant to construe the section.

PN147

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just before you go on can I clarify one thing? Essentially you are, in what you have just been putting, contrasting two assumptions, one assumption being that industrial action is a necessary and almost - well, is a necessary part of bargaining and reaching an agreement. Another assumption that you have put is that industrial action is not necessarily part of negotiating and certifying an agreement. Is that a way to characterise what you have just been saying to us?

PN148

MR BATT: Certainly, yes, those - - -

PN149

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In other words the proposition proceeds on the basis that an agreement cannot be made without industrial action being contemplated almost as a necessary part of that process.

PN150

MR BATT: Yes, with respect, your Honour, it seems to be almost part of what her Honour says at - in the course of paragraph 54 her Honour rejects the notion that industrial action is not really that important and says, in effect, that it is unlikely that bargaining would even commence in the absence of this coercive power. Now, to be clear that is a quotation that her Honour sets out but she plainly approves it and it does seem that her Honour is adopting a view that yes, you really do need to have that facility for action to have agreement-making. Now, as the Commission would be well aware, in the vast majority of agreements there is no industrial action. The parties bargain. There is, of course, absent industrial action not a complete absence of sanctions and levers. There is the relationship between the parties, there is how matters will be when future agreement-making stages come up. Parties cannot simply adopt any position without consequence simply because action cannot occur.

PN151

There does seem to be a very great degree of weight accorded by her Honour to the notion that if the interpretation that the section seems plainly to lead to is adopted there will be denied an almost a necessary lever in the agreement-making process and for the reasons I have touched on the Minister submits that that is not the case. Now, I would not characterise the decision as based solely upon those competing assumptions because clearly her Honour looks at a number of matters, but if one accepts that there is ambiguity in a section, which the Minister submits plainly there is not, but if there is and if one is driven to these notions of consideration of extrinsic materials and purpose of the Act and the policy behind it, then one will get to consideration of assumptions like that and if one gets to that stage the Minister submits that the position adopted by her Honour in paragraph 54 is not the position which should be accepted.

PN152

Of course, true, one is only examining these issues, your Honours, in circumstances where there is on foot a certified agreement which the parties have put their hands to and then there is thought to be another. That is the only time when this issue arises. I do not want - and I am conscious of the time, your Honours and Commissioner, I do not want to take you in detail through paragraphs 25 and following of my submissions because I have perhaps said enough to indicate the gravamen of the submission. Could I simply highlight a couple of matters in them.

PN153

In paragraph 28 the submission is made that there is simply no ambiguity in the section and in paragraph 30, perhaps somewhat painstakingly, the few words of the section are passed. That, I trust, will speak for itself but can I just refer to subparagraph (d). You will see that a number of authorities are cited in relation to the meaning of the words "in respect of" because, of course, what one has here is the phrase:

PN154

For the purpose of supporting claims against the employer in respect of the employment of relevant employees.

PN155

One has to look at the meaning of the words "the employment" and the Minister submits it just means the employment, not specific terms of employment, but "in respect of" is important there because it serves to denote the link between the claims and what they have to concern for the prohibition in the section to operate. Now, in (d) I set out that the words "in respect of" are words of extremely wide import and they take their meaning from the context. It used to be said that they meant anything and that is not said any more. They mean almost any connection provided that the context does not narrow it.

PN156

In my submission, if anything here the context supports the notion that it is not limited at all. It is any acceptable link between the true elements, claims and claims concerning the employment. Of the decisions referred to can I just take the Commission briefly to the first two which are listed which are recent decisions of the High Court. Scully's case appears in the folder at tab 12. Perhaps inconsistently at least in the case of Scully we only gave you extracts but we trust that they are the relevant extracts. If the Commission has tab 12 on the third page, which is page 171 in the judgment of four Justices, the Commission will see that at about point 4:

PN157

It is well accepted that such words, that is "in respect of", take their meaning from their context.

PN158

Then with approval there is quoted the Technical Products case which elaborates on that. Over the page which actually is page 182, it is in a separate judgment, in paragraph 68 the Commission will see the sentences:

PN159

The words "in respect of" are indisputably very wide words of connection. They signify some discernible and rational link between the subjects postulated. Whilst, like any other statutory phrase, I take their meaning from the context, here the context does little to cut back the potential width of the relationship.

PN160

In my submission, the same is the case in the present context. Then in tab 13, the next tab, the case of Moneywood we have extracted page 380 which is from the judgment of Gummow J, although I am afraid that that does not appear on the page. In paragraph 96, your Honours and Commissioner will see the statement by Gummow J that the term "in respect of":

PN161

...has the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer.

PN162

Now, one can cast the net wide and find many descriptions of the phrase and I have endeavoured to give the most important ones in the outline but those two recent submissions, in my respectful contention, serve to illustrate just how wide the language was which parliament chose to use in the section now in issue. Shorn of all the aids of construction, when one just stands back and reads the section and reads it against the background of the Act, in my submission, there can be no real basis for the interpretation adopted in Emwest.

PN163

In paragraph 31 we collate the principles which have been formulated for construction of sections in circumstances where they are not ambiguous and in essence a Tribunal construing a section which is not ambiguous must follow its plain meaning unless - and then various phrases have been used but unless it leads to an operation which involves absurdity in justice or anomaly or which could not rationally be thought to have been intended by the legislature.

PN164

In addition to the citations given can I simply record in relation to subparagraph (c) the case of Thompson v Judge Byrne which is in the folder. It is referred to in A but it is important to C, so to the citation in C could I add Thompson v Judge Byrne at page 158 to 159 in the decision of Gaudron J. I will not ask the Commission to turn to it but I can read it to the Commission. Her Honour says - it is at tab 19 if the Commission wishes to turn to it - at page 158:

PN165

It is a fundamental rule of construction that where the words of a statute are clear they should be given their natural and ordinary meaning unless that would result in absurdity, conflict with some other provision of the statute or lead to a result which cannot reasonably be supposed to have been the intention of the legislature.

PN166

Over the page she refers to the legislation there in issue which was drink-driving legislation and she says:

PN167

The words of the section, if given their ordinary meaning, may produce results ...(reads)... saying that they are absurd.

PN168

She, like the rest of the Court, rejects the attempt to read them differently from their terms. The submission of the Minister is that in the present case such principles are applicable and show, when one looks at the wording of the legislation, that there is no warrant for reading it differently to how it obviously reads and indeed in my discussion with your Honour I submitted that in fact there were reasons to the very contrary because in fact the result achieved and the policy that could be seen is eminently sensible, workable and indeed both consistent with and supportive of the policy of the Act and the relevant parts of the Act.

PN169

In the following paragraphs I set up further considerations which can be had regard to if there is thought to be some ambiguity. In paragraph 35 I refer to the Acts Interpretation Act. Just to correct my error that should be a reference to 15AB of the Act in paragraph 35. 15AA says look at the purpose. 15AB says in a proper case you can look at extrinsic materials. Now, I move then quickly to paragraphs 39 and following where I set out some parts of the explanatory memorandum. Her Honour, you will recall, had said that she was not assisted by the explanatory memorandum but we would rely upon the following passages and they are set out or they are copied in the folder but they are set out verbatim here.

PN170

The first is the statement in the prefatory paragraph 9.5 of the memo which is set out in paragraph 39 of the submissions and in particular we rely upon the bolded part, namely industrial action is not to be permitted in the period of operation of an agreement. Likewise 9.175 to 9.177 include the statement on which we also rely, that this section, that is 170MN, prohibits the organising or taking of industrial action by an employee or an organisation bound by a certified agreement or an officer. It then goes on and in the second italicised paragraph on page 11 of the outline the Commission will see the sentence:

PN171

Such action -

PN172

that is the action I have just described -

PN173

is not protected action.

PN174

Finally can I particularly direct your attention to the last sentence of that excerpt, namely that there is reflected the intention that industrial action not be available once an agreement has been made except during the circumstances provided in the legislation for the negotiation of a new agreement. We would say that means of a new replacement agreement. In paragraphs 42 and following I record that - and I do so for propriety and accuracy - the text of 170MN which was the subject of the paragraphs to which I have made reference, as the Commission would no doubt be aware was altered in the Senate and the new explanatory memorandum was issued. I have made reference to that in the outline. The submission is that whilst it was altered it was not relevantly altered and that whilst one must read both of the explanatory memoranda together, it is perfectly indicative and on point to have regard to the one which I have made reference to.

PN175

Some final points and they are not dealt with in the outline. Can I note that section 170ML(7) which is the section which describes what is protected action, 170ML(7) provides that the section has effect subject to the following provisions of the division and that includes, of course, 170MN(1), so one cannot look at 170ML and say: this is what protective action is and that is that because it is expressly subject to and indeed you would have to really take the view that what that subsection (7) is getting at is 170MN which does cut it down.

PN176

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And also 170MO, I would suggest.

PN177

MR BATT: 170MO was that?

PN178

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, namely the provisions about giving notice of action.

PN179

MR BATT: Yes, yes, I should not say that it is only directed at 170MN but plainly the type of provision that would qualify 170ML would include, in my respectful submission, 170MN(1). Finally, on Emwest, can I - I said earlier when I quoted the paragraph of the decision that refers to the Kilpatrick Green case, I said that I would return to that briefly. Her Honour refers to the Kilpatrick Green decision which is a decision of Ryan J. At paragraph 30 - I beg your pardon - at paragraph 44 of her decision - and her Honour says there:

PN180

Indeed, this construction -

PN181

Namely, the union's one, which your Honour accepted is supported by Ryan Js decision in Kilpatrick Green. Kilpatrick Green is a case where the certified agreement said that: if the employer got a project with a value in excess of 56.2 million, then the parties could negotiate a specific site agreement and that would take precedence over the certified agreement. That happened in relation to a very significant project in Melbourne and as her Honour reports, Ryan J held that:

PN182

The employment of the employees at the site was not subject to the certified agreement because the agreement itself accepted the relevant area of work from its operation.

PN183

Her Honour has said:

PN184

This construction -

PN185

that is to say the one which she adopts in the result -

PN186

is supported by Kilpatrick Green.

PN187

In fact, your Honours, I have included a copy of Kilpatrick Green at tab 25 of the folder. When one looks at that decision, it becomes clear that in fact properly construed, in my submission, that decision does not bear upon the same point. It bears upon the question whether the employees were subject to the relevant agreement and if one contemplates the terms of 170MN in respect of the employment of employees, whose employment is subject to the agreement, it was that latter element which isn't operative in the present case, to which Ryan J was directing himself, or to which that case directed attention. That is seen from paragraphs 2, 3, 7 and 9 of the judgment in Kilpatrick Green. So then so far as her Honour derives support from Patrick Green, we would respectfully submit that in fact it is on a different point.

PN188

I have now fenced across the whole scope, virtually, of my written outline, including the second section which is on, not following Emwest, because it is wrong. As I said at the outset, it was necessary to do that because part of - and indeed a very important part of the submission in support of referral is the submission that Emwest is wrong, or at least for that purpose, we need only submit open to plainly doubtful and, therefore, we would submit respectfully that there is real utility and need, especially given the nature of the issue, in making the reference. So I have drawn upon the latter part of my outline which is on a secondary submission in support of my referral application.

PN189

In the outline on the referral question, I conclude in paragraph 13 with the submission that:

PN190

In all those circumstances, it is appropriate and desirable that the questions of law set out in paragraph 5 -

PN191

it should be -

PN192

be referred. This will allow consideration and the termination of a matter which should be seen as in doubt and which is important for the Act, Part 6B, and not only this matter, but the Commission's discharge of its section 127 function.

PN193

That is in a nutshell the reason why we submit that the Commission ought exercise its discretion to refer. We are fortified by the support of the employer. We hope additionally fortified by the support of the union, but that is only forthcoming if the Commission is disposed to entertain the question of Emwest at all and I quite accept that my learned friend says: it was not argued below, so let's just apply it and look at the distinction question, was fatigue management dealt with in the agreement?

PN194

If the Commission, as we would urge it to, is disposed to look at the Emwest decision in the manner in which our submissions seek to have it do, then, as I understand my learned friend, he would say: rather than debate what is my second ground, namely, do not follow Emwest. If that is the matter for discussion, he would say, it is more appropriate that the matter be referred and to that extent we do derive support from the notion of the parties before the Commission that this is an important matter which ought be referred if it is seen by the Commission - and for the reasons which I have endeavoured to advance - as being in doubt.

PN195

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So are you effectively arguing that we should not determine this matter until the question of law has been referred and answered by the Court?

PN196

MR BATT: Yes, your Honour, because if the reference is made then - if it is decided that Emwest is wrong - the decision would not be in those terms - but if the effect of the decision is, 170MN means the alternative to what Emwest said, then that disposes of this matter, because the action that was sought to be taken and which is the subject of the 127 application, if that decision is reached, was plainly not protected action and, therefore, the order lay. To that extent it disposes of it and we would submit that is a logically anterior question to debate about, what was and what was not covered by the actual agreement?

PN197

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But what if Mr Hatcher - and we have not heard from him yet, we are only - - -

PN198

MR BATT: I haven't heard from anyone yet, your Honour.

PN199

SENIOR DEPUTY PRESIDENT CARTWRIGHT: We are only hearing what you have said, Mr Hatcher has already agreed to, but what if Mr Hatcher were to advance the proposition that the Commissioner was in fact not in error in his finding that the circumstances of this case could be distinguished from Emwest, and therefore deciding the matters that you have referred to really wasn't necessary to decide this case? You are urging us, nevertheless, in the public interest I guess you would put it, to refer this matter for interpretation, are you not?

PN200

MR BATT: That is certainly an ingredient of the position the Minister adopts, intervening as he must under the section on matters of the public interest, not matters going to the disposition of a particular case on its facts. We would submit - and your Honour raised the question with me earlier which went to the same point - we would submit that when one comes to these question, as the Commissioner will have to do repeatedly under 127, one should not be at the point of looking at how the agreement on the facts supplied and whether there was something not dealt with in the agreement, if indeed, the proper law is that that is not a relevant inquiry because 170MN disposes of the issue at an earlier step.

PN201

Now, of course, there are many decisions in the Law Reports where the Court chooses which point to answer the case on and says: having decided it this way I do not need to look at the others and sometimes those others occur logically earlier, and sometimes they could have occurred logically later, but the Court says: this is clear, so the rest does not matter. We would urge the Commission, if it considers that the present matter is one where that characterisation is open, not to proceed on that basis because of the importance of this question, the fact that it is before the Full Bench now.

PN202

It has been three times before a Commissioner. This is the first time it is before the Full Bench and experience shows that the first decision is the time - I am going to mix my metaphors - when the stone is cleanest, and where the parties are agreeable, at least in the way that I prescribe to a reference and when it would bear upon the matter then there should be a reference. I have submitted and I continue to submit that these issues of law do arise in this matter, if only because the Minister is present in it and making the submissions which are his secondary submission, but we would say for the reason I tried to give earlier that they arise anyway, because they are inherently part of the analytical process that has to be carried out when a 127 order is sought in these circumstances.

PN203

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Then, essentially, you are saying that the significance of Emwest adds an extra test to be addressed by the Commission in going through the process of dealing with an application under 127.

PN204

MR BATT: That is right, because pre-Emwest, and subject to the interpretation which might have been adopted in the Commission, one didn't have this layer, but now one does and in the Minister's submission for the reasons I have tried to advance, plainly, one should not.

PN205

SENIOR DEPUTY PRESIDENT MARSH: So in applying 170MN, the Commission should look at the wording and the scope of 170MN. It is incorrect to take the next step and to take into consideration the reasoning in Emwest, in deciding whether or not the actions are protected or not?

PN206

MR BATT: Yes, because the Commission applies the law and the law is as set out in the Act, at least that is the primary source of the law and if the Act is clear, then, the Commission ought follow it and if the Commission isn't bound by Emwest, then, provided it is persuaded of what I would submit is the plain clarify of the section, then it ought apply the section. If the Commission considers itself to be bound by Emwest, then, one can approach it a different way and say: par excellence, this is a case for referral but it is a rather unusual circumstance where, but for a referral, the Commission would - on the hypothesis that the Commission is bound, which we would descent from, but on that hypothesis, but for a referral - the Commission would be driven as it were to in this case, apply an interpretation which would seem not to be correct and importantly, especially as we are before a Full Bench, would by virtue of such a step here repeatedly be driven to do so.

PN207

SENIOR DEPUTY PRESIDENT MARSH: And that is what you mean by when you say the Commission should not cement the position?

PN208

MR SLEVIN: Yes.

PN209

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand.

PN210

MR SLEVIN: Because there would be a cementing here, with respect, your Honour.

PN211

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN212

MR SLEVIN: Whilst the objects of the Commission and the functions and the manner in which the Act directs it to carry them out are often used against referral applications, such as the need not to delay unnecessarily, one can in my submission see how those self same legislative requirements as to how the Commission must, over time disclose of its functions, provide a real basis for referral here. Especially, where the union - which is the applicant for leave to appeal - is submitting that this is a matter of public importance which warrants leave, given the identity of the applicant party before the Commission.

PN213

Given, one might say, that the background to this matter shows that it is an appropriate vehicle if ever there would be one for a reference - I should not use the word "vehicle" - but it is an appropriate matter to refer because the facts of it are not such as to lead to really severe prejudice by a delay. I do not mean to down play the importance of the matters before the Commission between the parties, but I would go so far as to submit that there could be matters where the prejudice by way of delay and at the industrial level, was far more pronounced.

PN214

We say, looking at all of the circumstances of this matter, the questions that it involves, the importance of the question and what we would respectfully say are the very plain difficulties in Emwest and the adoption of an interpretation that the section simply does not come close to, really, her Honour has to go through a double reading in to even get to a supposedly ambiguous state and in all those circumstances we would submit that there should be a reference of the questions that we have attempted to formulate in paragraph 5 of our outline. Unless there is anything further, those are the submissions I would make on the reference point.

PN215

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN216

MR SLEVIN: I am in the Commission's hands whether I should not take a seat and address my secondary argument later, or whether you wouldn't prefer me to deal with that now, given that it largely depends upon my submissions concerning Emwest.

PN217

SENIOR DEPUTY PRESIDENT MARSH: Yes. I think it would be more appropriate to address that matter - the secondary issues later.

PN218

MR SLEVIN: Certainly, your Honour.

PN219

SENIOR DEPUTY PRESIDENT MARSH: At an appropriate time, thank you. Mr Hatcher, I assume you are next, are you?

PN220

MR HATCHER: Well, we did have a brief chat about that at the bar table, your Honour.

PN221

SENIOR DEPUTY PRESIDENT MARSH: Yes, fairly unusual circumstances.

PN222

MR HATCHER: They are most unusual circumstances.

PN223

SENIOR DEPUTY PRESIDENT MARSH: The appellant has not got on his feet yet.

PN224

MR HATCHER: We thought it might be more convenient if I put my client's position.

PN225

SENIOR DEPUTY PRESIDENT MARSH: I think it might be, yes. Yes, very well, thank you.

PN226

MR HATCHER: If it please the Commission, I'm not sure whether I am indeed fortifying, or dis-fortifying the Minister in the support that my client proffers to his application, but it should be said that my client's primary position is that we oppose leave to appeal. We say that the matter should be resolved on the question of leave to appeal and there is then no matter arising. If the Commission were minded to grant leave to appeal, then we certainly do support the Minister's application that questions of law be referred.

PN227

SENIOR DEPUTY PRESIDENT MARSH: So how can we - so we need to hear the appeal to determine whether or not we give leave to appeal?

PN228

MR HATCHER: With respect, no, your Honour.

PN229

SENIOR DEPUTY PRESIDENT MARSH: No?

PN230

MR HATCHER: The basis upon which we oppose leave is self-evident from the order made. One does not need travel any further than that. It was an order of one month's duration made on 15 June. It has expired. It was an order expressly confined in its operation in terms to - if the Commission has the Appeal Book handy, it is to be found at tab 3 of the Appeal Book, and the industrial action which is prohibited is:

PN231

The employees shall not engage, or threaten to engage in industrial action as defined in relation to, or in connection with the taking of crib breaks, rest breaks, or similar breaks.

PN232

Now, there is another point where my client is at odds with the submissions of the Minister and that is in the characterisation of what Kenny J decided in Emwest. My friend put it several times: matter not dealt with in the agreement, and that is a fair characterisation of the words that her Honour uses. However, we say that upon a proper application of her Honour's approach in Emwest, one would look for an inconsistency with the resolution embodied in the agreement and we would say in the circumstances of any agreement, even a one subject matter agreement that has a provision in it such as the agreement at hand has, then, it would be nonetheless within Emwest, that there would be a 170MN prohibition on industrial action.

PN233

The reason that is important is, the way the learned Commissioner has characterised the action, clearly confines the action to being within what we would say is a proper interpretation of Emwest. So if it please the Commission, in my respectful submission, given that the order is spent and the order is one of "limited application", this is not a question in respect to which the Commission would grant leave. Could I hand up a bundle of authorities that we have prepared and, hopefully, we won't need to trouble the Commission with these at all.

PN234

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN235

MR HATCHER: The first one is a very brief one that I would take the Commission to, that is Moranbah North v Coal Management Proprietary Limited, it is a relatively recent Full Bench decision in this Commission dealing with the question of leave to appeal and intriguingly enough an appeal from a section 127 order. They were fairly unusual circumstances, one should concede, that dealt with a 127 order requiring an employer to provide limited duties to an employee, but the Commission denied the employer leave to appeal. If I could ask the Commission to go to paragraph 7, of the decision on page 2 of the Print:

PN236

In the circumstances, we do not think it appropriate to grant leave to appeal. The underlying issue between Mr Burley and the appellant has been resolved ...(reads)... as though it were a test case.

PN237

Now, if it please the Commission, we say that is equally apposite in the case at hand.

PN238

SENIOR DEPUTY PRESIDENT MARSH: Well, except that in the Moranbah case, the issue between the parties had been resolved and my understanding is, unless there has been a resolution that I am unaware of at Bulga, that is a distinguishing characteristic.

PN239

MR HATCHER: Well, yes and no, your Honour, and that comes to another point upon which my client departs from the Minister's submissions. In my respectful submission, this Commission is bound to apply the law and the law is the law as it is interpreted by the Courts. With all due respect to the observations of Munro J, it matters not - and clearly is not in issue in putting this submission - the eminence of the jurists in the respective jurisdictions.

PN240

It is simply a matter of the separation of powers. The executive, or the legislature makes the law. The judicature interprets the law and the administration applies the law. So if His Honour Sir Anthony Mason sits, as he did until recently, as the Chairman of the Human Rights and Equal Opportunity Commission, he will apply the law as it is being interpreted by a Magistrate sitting in the Federal Court, or the Federal Magistrate's Court, interpreting the relevant Federal Anti-Discrimination legislation.

PN241

So in our respectful submission, what the Commission is faced with here is an issue remaining between the parties which the Commission cannot finally determine. My client contends that her Honour, Kenny J, erred in Emwest. That the proper application of section 170MN does not require any consideration of whether the agreement covers the subject matter in respect of which it is said protective action in invoked, but that is a matter that we don't rightfully feel we can pursue before this Commission. We feel, before this Commission, we are bound to accept that decision is correct and that was the procedure followed below and argue that this case does not fall within that exception.

PN242

If the Commission were against us on that we do not see that we would be constrained from arguing to the contrary in another forum, in a Court which has the capacity to finally determine or interpret the legislation. So the situation is this, because that proposition applies with equal force to the applicant appellant. At this stage, there has been an order made by the Commission which works upon the finding that the action is not protected upon an application of Emwest that, we say, is incorrect. That order cannot prevent the CFMEU next week, next month from again giving notice of an intention to embark upon industrial action and if they genuinely contend that that action is protected section 127 orders, even if made, would not constrain them.

PN243

Section 170MT makes it clear that a section 127 order simply does not apply to protected action. Similarly, even if the Commission were to find on this appeal that my client didn't fit within the Emwest exception and that an order ought not to have issued, my client would be unconstrained next week, next month, next year from applying in the Federal Court for an injunction under section 170NG relying upon section 170MN. So in those circumstances it is our submission that if the Commission finds that there is a real public interest in determining the questions that arise on this appeal such that it would grant leave to appeal then there is a similar interest in having the matters finally determined by the Court by referring the questions of law that are proposed by the Minister.

PN244

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Essentially, your submission is that the whole thing is academic anyway because the order is spent and - - -

PN245

MR HATCHER: Yes.

PN246

SENIOR DEPUTY PRESIDENT CARTWRIGHT: - - - so what are we here for anyway.

PN247

MR HATCHER: Yes, exactly, your Honour. We say that if there is some continuing controversy between the parties such that the Commission would grant leave to appeal then it is a controversy that can't be resolved here, but ought be resolved if there is a continuing controversy and ought be resolved appropriately in the Federal Court, but our primary proposition is that the order has expired and was very limited in its operation in any event.

PN248

SENIOR DEPUTY PRESIDENT MARSH: I'm still not clear why we are not obliged to hear the union's submissions on appeal, at least, with respect to the granting of leave?

PN249

MR HATCHER: You are, your Honour.

PN250

SENIOR DEPUTY PRESIDENT MARSH: Yes, that was the point - - -

PN251

MR HATCHER: I simply don't wish to - - -

PN252

SENIOR DEPUTY PRESIDENT MARSH: - - - of my question earlier. Yes.

PN253

MR HATCHER: Yes.

PN254

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN255

MR HATCHER: No, no, you are certainly obliged to hear the union as to whether leave should be granted.

PN256

SENIOR DEPUTY PRESIDENT MARSH: Exactly, before we can decide that leave shouldn't be granted.

PN257

MR HATCHER: Absolutely.

PN258

SENIOR DEPUTY PRESIDENT MARSH: Yes, and that is what I was asking you earlier.

PN259

MR HATCHER: I'm sorry, your Honour.

PN260

SENIOR DEPUTY PRESIDENT MARSH: Yes, that is all right. I think we were at cross purposes.

PN261

MR HATCHER: Yes.

PN262

SENIOR DEPUTY PRESIDENT MARSH: Well, that clarifies that then, yes.

PN263

MR HATCHER: No, I certainly wasn't suggesting that the Commission would not hear from the union on the question of leave, but I think I understood your Honour's question to be directed to whether the Commission needed to hear the appeal to determine the question of leave.

PN264

SENIOR DEPUTY PRESIDENT MARSH: No, but we need to go to the merits of the appeal insofar as they go to leave to appeal.

PN265

MR HATCHER: To the question of leave.

PN266

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN267

MR HATCHER: Yes, your Honour.

PN268

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN269

MR HATCHER: May it please the Commission.

PN270

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Slevin?

PN271

MR SLEVIN: We oppose the application for a reference. We do so on the basis that these proceedings are about section 127, they are not about section 170MN. Issues, of course, about section 170MN arise in the proceedings, but essentially the appeal is brought against an order made under section 127. The distinction is an important one. The test case in the Commission, the Coal and Allied decision deals with four forms of industrial action. It deals with prohibited action and if the Minister is right then the action in these circumstances may well be prohibited action.

PN272

It deals with protected action, it deals with unprotected action under two categories, legitimate and illegitimate industrial action and it describes the discretion under section 127 as a broad discretion. That applies to all of the forms of industrial action, described all forms of industrial action. If I can take you to the Coal and Allied test case which is in the Appeal Book, it is marked as an exhibit before the Commissioner at tab 17. Page 331, commencing at the first full paragraph on that page, the Full Bench says that:

PN273

There is nothing in the reasoning of the Full Bench in ABCBPSU that would deter us from concluding that jurisdiction is available under section 127 to direct the cessation of apparent protected action.

PN274

PN275

The Commission was not - it was not their concern with the provisions introduced by the Industrial Relations Reform Act 1993 or rather was their concern and since repealed. However, section 127 in its current form and section 170MT is each partly derived from section 127 and section 170PM(1), respectively, of the Industrial Relations Act 1998 then in force. The Full Bench concluded in ABC that the power that then existed to issue procedural directions did not afford jurisdiction for a direction precluding industrial action in support of a claim during a bargaining period. However, it added:

PN276

In view of our general conclusion as to the limited role of the Commission in circumstances where a party is engaged in protected action we have not considered it necessary to address the question of whether or not the order could have been permitted under section 127 as the Commissioner did not purport to make the order under this section.

PN277

We noted that section 170PM in its terms does not prohibit a bans clause or an order under section 127 from being made at any time, however, it would be at odds with the intention of Part 6B division 4 for such orders to be made during a bargaining period in relation to industrial action which is protected action. The appropriate course would be for the Commission to suspend or terminate the bargaining period under section 170PO, if such a course was justified in the circumstances.

PN278

The reasoning that underlay that and other observations in the Full Bench decision in that matter has a persuasive force in relation to how the discretion under section 127 ought now be exercised as a matter of discretion. However, the passage quoted demonstrates that the Full Bench did not suggest that the then power to direct a cessation of industrial action did not extent to particularly industrial action merely because some or all of the action subject to the order might be covered by a statutory exemption from the effects of the order. In this respect, we are in accord with that part of Munro J's reasoning in re Educational Services.

PN279

If the Commission were to have a view that particular industrial action is or should be protected action that view is likely to be a powerful consideration weighing in the balance of consideration relevant to the exercising of various discretions under the Workplace Relations Act, in particular, it would weigh heavily against the power under section 127 being applied to industrial action if the Commission considered it is or should be protected action, but that weight is a matter of discretion, not jurisdiction. It follows, in our view, that as a general rule in the exercise of the discretion under section 127 an order should not be made in relation to industrial action that is considered to be protected action or plainly likely to be protected action if the intervention of the Commission is sought in relation to industrial action that is likely to be considered to be protected action.

PN280

The appropriate course would normally be for an interested negotiating party to apply under section 170MW. In other words, whether action is protected or not protected is not determinative of the jurisdiction of the Commission. It is not a matter of the jurisdiction. The argument and the contest between the employer and the union in these proceedings is a contest about whether the action that is the subject of the order is indeed protected action or not. Section 170MN is the focus of that debate, however, it does not in the end determine the matter that is before the Full Bench.

PN281

We say that in the proceedings before Commissioner Roberts the matter whether the action is protected or not as the Full Bench has indicated in the passage I have taken you to was an important factor in the exercise of the discretion, but in the exercise of the discretion only. It is not determinative of the matter one way or the other. So the submissions made on behalf of the Minister that this subject, that this is an anterior matter, and it is an important question of law that will have the effect of determining the matter is a submission that is not in accord with the Commission's principles set out in the Coal and Allied test case.

PN282

So we oppose the application on that basis in a general sense. We also oppose some of the argument put by my friend and the question does arise in what has been put as to whether the issue indeed should be agitated at all in these proceedings. As you have heard from Mr Hatcher the position of the company in these proceedings is that Emwest should be applied. Mr Hatcher has been very frank in stating that his client would prefer that Emwest didn't have to be dealt with by the Commission but as the law currently stands, we agree with Mr Hatcher. This was put before Commissioner Roberts as well, that Emwest does need to be considered by the Commission.

PN283

The question only arises and in terms of making a reference under section 46(1) it has to be a question that arises in the matter. The question hasn't arisen in this matter yet. The Minister intervenes, raises the matter and has done so on the basis this morning as if you can do so as of right. We say that he would need leave to raise this matter. He needs to seek leave of the Full Bench because it is not a jurisdictional matter, as I have taken you to Coal and Allied. So it is not a matter that can be raised at any stage of the proceedings under section 127 to start with. It is a matter that the parties principal to the proceedings do not raise and do not believe should be raised.

PN284

Once the Minister intervenes and becomes an intervener in these proceedings we say the proper course is that they seek leave to raise this point. We would oppose such leave being granted. So the matter does not arise, or this question does not arise in the matter to date, is our submission. That alone would prevent the Commission from making the referral for it. Going further to the detail of the argument put on behalf of the Minister, at paragraph 8 elaborated on earlier, it is put in paragraph (c) - subparagraph (c) to paragraph 8 that the relevant factual background has been fully determined in these proceedings. We say that is not the case.

PN285

The relevant factual background goes to whether fatigue management breaks, so far as section 170MN is concerned, I might add, that the relevant factual matter is whether fatigue management breaks are indeed of the nature of rest breaks or crib breaks covered by clause 8 of the certified agreement. That is in contest between the parties, that is why we appealed. We disagree with the finding of the Commission, the Commissioner in that regard and so it cannot be said that the factual background has been fully determined. It seems that if the question that is referred, the question that is formulated in the submission is referred.

PN286

The first matter that the Federal Court would have to deal with is the factual background and we would argue, we would need to argue in the Federal Court that we have stated all along we don't agree with the Commission's current finding that fatigue management breaks are covered by the broad category of crib breaks and rest breaks. So that is not a matter that can be relied upon by the Minister to refer this matter to the Federal Court. There was suggestion in the submissions made this morning that Emwest came along and changed things, as it were. Emwest was the first time that the Court considered the issue of protected action in the context of section 170MN where there are - where an agreement does not cover the field, if I can paraphrase it that way.

PN287

It did not change anything, it just had a look for the first time and interpreted that section in the context of those circumstances. In the reasoning of Kenny J there is reference to other cases and the cases that our union was involved in was the Thiess Contractors case which dealt with section 170MN in the context of a 170NG injunction application and made a similar finding to the finding that Kenny J made but it did not turn on the question of protected action. I haven't got a copy of that decision with me, it is referred to by Kenny J and it is distinguished on that basis, unfortunately the extent of this argument we weren't aware of until this morning when we had the outline of the submissions.

PN288

We say that a suggestion that Emwest suddenly came along and changed things is just not available to the Minister. The suggestion that because there have been three Industrial Relations Commission cases and your Honour, the presiding Member pointed to a fourth matter where the Commission has dealt with Emwest is not a reason for the matter to be referred to the Court, indeed Kenny J in paragraph 56 foreshadowed that it would be the case that the Commission would be engaged in the exercise of considering the findings made in that decision there is nothing unusual about that. An interpretation has been given of the legislation and the Industrial Commission is constantly involved in considering interpretations of the legislation that it is bound to apply.

PN289

We agree, so we will agree with Mr Hatcher today at some stage and we will do it now. We agree with Mr Hatcher that the Commission is bound to follow Emwest for the reasons that he presented. The suggestion that the Commission is not bound to follow Emwest is similarly a new proposition in these proceedings and it is not a proceeding that is supported by the party's principal, as it were, to the proceedings. The question that is sought to be agitated, I have covered this, that Emwest is wrong is something that we believe the Commission should not be entertaining for the reasons that I have described. Again we reiterate that this is a case about protective industrial action, it is not a case about section 170MN. If the Minister is looking for a vehicle to argue that Kenny J is wrong he should be looking in another place, he should not be looking in the Industrial Relations Commission, he should not be looking to use the proceedings of parties to a section 127 order as a vehicle to do that.

PN290

The legislation is clear in its objects that the Commission should be seeking to resolve industrial disputes, they should not go on ad infinitum, as it were, to proceedings in the Federal Court, etcetera. Section 127 itself instructs the Commission to deal with these applications quickly and as expediently as possible. Perhaps an odd submission from outside of the bar table.

PN291

SENIOR DEPUTY PRESIDENT MARSH: That is why I am smiling, Mr Slevin.

PN292

MR SLEVIN: In the context of the prospect of further litigation in the Federal Court over this, when all we seek to do in these proceedings is to - and we do agree with Mr Tregenza, we are going to do it twice today, that ultimately determining whether action is protected or not is a matter for the Court. However, if the Commission forms a view and that view is incorrect, we seek to correct that by the proper processes under the Act of bringing this appeal. We say that the Commissioner has made a number of errors in his decision, one of them is his finding about protected action. We would like to keep it within the forum of the Industrial Commission. We will have a final view of the Industrial Commission after the hearing of our appeal. Indeed, that will form the backdrop of no doubt further proceedings if they are necessary.

PN293

We are appealing within the Commission a finding of the Commission and it is appropriate, we say, to do so. So far as the question of leave to appeal, we are pleased that we are going to get an opportunity to address you on that and we will be arguing that it is an important issue that the Commission correct the type of errors that are made and we identify those errors in our grounds of appeal. I will not take more of your time now by going through those but obviously we would be seeking to develop those on the appeal. If the Commission pleases.

PN294

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just before you sit down, what do you say to Mr Hatcher's proposition that, well, the order is past its use-by date and therefore essentially why we are here.

PN295

MR SLEVIN: Well, we adopt an agree with the reasoning of the Presiding Member that there is still an underlying dispute between the parties. This is not like the Moranbah case. There is an ongoing dispute over the question of fatigue management breaks and for that reason we say that the decision of the Commissioner which has an impact on the rights of the employees to progress that issue in that dispute is an important issue that should be considered by the Commission. If the Commission pleases.

PN296

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you, Mr Slevin. I guess you have a right of reply, do you, Mr Batt?

PN297

MR HATCHER: I wonder if before my friend rises - - -

PN298

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Hatcher.

PN299

MR HATCHER: - - - I can just ensure there is no discordance between the submissions I have put and the agreements that Mr Slevin so generously offered to those submissions.

PN300

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN301

MR HATCHER: We certainly do not submit that the question of section 170MN in its proper interpretation is not a question arising in these proceedings. We say it is. We simply say it is a matter that the Commission is bound to deal with in a particular way and it is for that reason we say that if the Commission thinks it is a matter which warrants leave then it is clearly a matter which warrants the reference of the questions of law to the Tribunal that can determine those questions of law.

PN302

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN303

MR BATT: I would propose to respond very briefly in reply to some of the submissions made and then if it is convenient to the Commission canvass the Minister's alternative position as to the not following of Emwest which I can dispose of very briefly. In reply to - I'm afraid at least you would agree, both sides of where I stand at the moment can I make these submissions. It was put by my learned friend for the union that the Minister needed leave to raise today the submissions which have been advanced. In my submission, that is not the case. The Minister's intervention is intervention as of right under section 44 subsection (1) in the public interest.

PN304

Now, it is important to note that that section provides for the right of intervention in a matter before a Full Bench, so that whilst there is a qualifier provision in subsection (2) which is not presently relevant, the right of intervention employed is a right before the Full Bench. Until we were here this morning, as it were, the Minister had no right to intervene. He was not able to exercise the right that he now exercises to appear below and advance submissions in the public interest as he has done today. In those circumstances and unlike the parties he cannot be bound by his conduct below, including the points he raised, and in my respectful submission, the authorities of this Commission and otherwise which deal with the limited circumstances in which on appeal a party can raise a point not raised below are just that, namely authorities dealing with when a party on an appeal.

PN305

The Minister, not having been able to be present pursuant to the section that he now invokes below, is not a person to whom such decisions can relate. In that connection the power to intervene in the public interest, which is invoked before the Full Bench today, should, in my respectful submission, be taken to be a power to advance such submissions as arise in the circumstances of the matter but not constrained by a requirement that any submission not advanced below by the parties is one which needs leave. If leave is needed then I would seek it.

PN306

Second, it is put that section 170MN and perhaps particularly the submissions that the Minister seeks to have advanced and the questions he seeks to have referred do not arise. It is accepted that whether action is protected is not jurisdictional for the purposes of section 127 but section 170MT is plain in providing in the space of 1_ lines that if action is protected then a section 127 order does not affect it. Section 127 is, as is established, a discretionary provision and there could not be a grant of a section 127 order if the Commission was at the same time of the view that the action the subject of it was protected. It is not a case where there is action that is and is not protected. The action fell to be judged one way or the other as to 100 per cent.

PN307

If it was protected then no section 127 order, it could sensibly be suggested, would have been granted. In those circumstances the interpretation of 170MN is, even if only by a two-step route, directly in issue and as a result the matters the subject of the Minister's submissions this morning are matters which arise. Further, it is plain from the learned Commissioner's decision that the gravamen of it was his conclusion as to protected action and the grounds of appeal filed by the Construction, Forestry, Mining and Energy union raise both the section and Emwest by their terms and indeed it might be said to be a fair reading that they raise them as a primary grounds.

PN308

As my learned friend Mr Hatcher said, the section and its interpretation arises even if the parties, other than the Minister, would say that the Commission is bound by Emwest. It was a question that your Honour raised with me this morning and our submission is that the aspects of 170MN which the Minister agitates are there, they do arise even if the parties haven't always sought to raise them and further, as I submitted as a secondary submission, with the Minister now intervening and now a party they are directly in any event raised. They should be seen to be matters which arise for the purposes of section 46(1) concerning a referral.

PN309

As to the utility of a reference, if there is a reference and if Emwest, contrary to the Minister's position, is held to be correct, then this would dispose of any possibility that - I may have got myself into too many reversals of analysis. I will come back to that submission, if the Commission would allow me to do so. My learned friend, Mr Slevin, made a submission that the factual background here is not fully determined and that that is a matter airs against reference, it is a matter which on the submission that it is fully determined I have raised in my submissions. The aspect that he relied upon in support of the proposition that it is not fully determined was his statement that the question of whether fatigue management breaks are FIB breaks has not been determined in the sense that it is in issue.

PN310

In my respectful submission, that is plainly a matter of law. It is a question of law to determine whether certain clauses of an agreement deal with a subject matter for the purposes of section 170MN as now interpreted. I can't give the Commission a citation but there is High Court authority, including a case of Agfa-Geveart, I think in the 1980s, but certainly which says that application of principles to facts and interpretation of facts as to their legal consequences, which is what is in issue on this matter, is a question of law.

PN311

Can I then turn briefly to the Minister's alternative submission which is that if the question is not referred, the Commission should not follow Emwest because it is not bound to and it is not correct. That is to say the Commission is not bound to and Emwest is not correct. I don't need to cover at all afresh my submissions as to the latter element as to what the Minister would say is the error of Emwest.

PN312

As to the decision ..... can I make these submissions. I have touched upon that in relation to referral and I have made the submission that whether or not the Commission is so bound if that does not dispose of the referral issue, I maintain that submission but it is separate. As to whether the Commission is bound, the Minister submits that the Commission is not and in particular a Full Bench of the Commission which necessarily will involve presidential members is not bound by a decision of a single Judge of the Court. I don't need to venture into the question of the Full Court, it does not arise, but as to the position of the Commission and a single Judge decision the Minister submits that the Commission is not bound.

PN313

It is certainly the case that the contrary view has been expressed in Atlas Steels and in Knox City Council and we acknowledge that in paragraph 15 of our outline and we include copies of the decisions in the folder. As set out in paragraph 16 of the outline, in the most recent statement on the matter Munro J has expressed a different position. The terms of that are set out in full in paragraph 16, say that there are some earlier words in a decision immediately preceding what is quoted which are also relevant and which support what is set out in the quotation. It is at tab 10 of the folder which I have handed to the Commission, paragraph 14 on page 3 where his Honour says:

PN314

One concern is about whether the Commission itself is bound to follow the decision of a ...(reads)... federal jurisdiction I remain to be persuaded.

PN315

In footnote 9 his Honour sets out certain relevant considerations that he addresses. Then he cites as part of his basis the fact that under the Act the decision of at least a presidential member is only subject to review by a Full Court of the Federal Court when remitted from the High Court and we would support his statement that this seems to reflect a disposition on the part of the legislature that at least presidential members of the Commission have standing in one respect people who are Judge of the Court.

PN316

Of course, his Honour then says it is only with reluctance and after considerable scrutiny that a decision would not be followed. The Minister entirely accepts that statement and says that in the present case, with reluctance and after scrutiny by reason of the matters that I have referred to concerning Emwest, the perhaps unusual alternative course of not following the decision would be the proper one. The three matters that have been referred to, two against and one for, are all, of course, decisions of a single member of the Commission and they are not binding of conclusive on this Full Bench.

PN317

In paragraph 19 we submit that there is no sound reason why the Commission or at least a Full Bench would be bound by decisions of a single Judge of the Court as opposed to following them in the ordinary course. One can make reference to section 46(3), the referral section. That section provides that where there is a referral the Commission - might use the word "bound" but in effect the Commission is bound to follow the decision on the referral. It provides that:

PN318

On determination of the question referred by the Court the Commission may make an award or a decision not inconsistent with the opinion of the Court or if it has previously made an award or order then it shall vary that order or award such as to make it consistent with the opinion of the Court.

PN319

It is only, the Minister would concede, an indication but it remains a significant indication if it is necessary to provide that on a reference the Commission is bound, why would that be so if the Commission is always bound? It may be taken to suggest that whereas where we characterise it in the present case there is a decision, it is to be departed from only reluctantly and there is real doubt about the matter, then a reference would be appropriate and then the Commission would be bound, having referred it. If not, then the contrary would be the case.

PN320

In paragraphs 20 and following of the outline I endeavour to set out some more general principles which provide a framework to understand that it need not be the case, initially attractive though it may be, to conclude that the Commission is bound by a decision of the Court. In essence that proposition is that fundamental to the doctrine of precedent is that a Tribunal is only bound to follow a decision of superior Tribunals, trying to use neutral language, which are superior to it and within the same hierarchy and that the existence of an appeal from what is seen to be the lower Tribunal to the next rung is inherent in and essential to that doctrine.

PN321

The last sentence there in paragraph 20 is almost verbatim from the opinion or rather the decision of Stephen J in Viro's case at 129 which we have provided. Happily not many pages of a rather lengthy decision are relevant. I have admittedly set out that passage in my outline but can I take the Commission specifically to the judgment of Barwick CJ in Viro at tab 11 of the folder at page 93. At page 93 the members of the Commission will see that there is a final paragraph which is lengthy and it begins half way down the page with the relevant passage:

PN322

The essential basis for the observance of a decision of a Tribunal by way of binding precedent...

PN323

In other words, the essential condition for the decision of the Tribunal to be perceived as binding, is that that Tribunal can correct the decisions of the Court which is said so to be bound. Correct by way of an appeal which is the context in which his Honour is speaking, namely the abolition of appeals from the High Court to the Privy Council. It is a passage that makes the same point as that of Steven J but in perhaps plainer language.

PN324

The essential basis for a decision of one Tribunal to be seen as binding is that that Tribunal can correct the decision of the Court, or Tribunal, which is said so to be bound.

PN325

Now, there could have been provided in this Act to be a general right of appeal of some form of correction to the Court. There isn't, and in those circumstances we submit that it is not to be held by the Commission but, as a rule of law it is bound by every applicable single instance judgment of the Federal Court notwithstanding that, of course, only rarely would it not follow such a decision.

PN326

In paragraph 22 we make the submission that the availability of prerogative relief does not constitute an appeal such as to alter the submissions made in the two preceding paragraphs. In paragraphs 18 and 19 we address the decision of Salinger which has been cited, or rather which is cited by the members of the Commission in the Atlas Steels and the Knox City Council cases as a basis for their rather bald statement that the Commissioner is bound. Salinger concerned an appeal from the Administrative Appeals Tribunal and the relevant passage, which is the last page in the extract, page 34, refers by its terms to the view of French J there, that it is difficult to see how it is open to a senior member, that is to say a senior member of the Commonwealth Administrative Appeals Tribunal. So one can't read the overtous statement at the end of Salinger as determining, by a judicial decision, the position of this Commission, especially when constituted as a Full Bench.

PN327

For those reasons, if the Commission pleases, the Minister submits that the Commission is not bound as a matter of binding precedent to follow the decision of her Honour Kenny J in Emwest and then builds upon that contention with his submissions as to the errors of Emwest, in order to urge the Commission that it should not follow Emwest in this matter with the result that it would necessarily be the case that the action in issue was, and could not have been protected and therefore it was not the case that a section 127 order could not have applied, to quote the legislation more accurately.

PN328

That, might I emphasise is the alternative submission of the Minister, his primary position, because it is logically anterior and because he submits that it is perhaps in all the circumstances the most appropriate position for the Commission to adopt, is that there should be a reference. If the Commissioner is against the Minister on that, then he does urge forcefully, or as forcefully as he can, the submissions in the secondary position but his primary position is there should be a reference. Unless there is anything further on which the Commission could be assisted by any of those, the submissions of the Minister, in response to the matters that have been raised by my learned friends and on the secondary issue.

PN329

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just before you sit down, what do you do with Mr Hatcher's submissions that - in these circumstances? On his proposition the Bench should refuse leave to appeal therefore there is no need to matter to deal with.

PN330

MR BATT: Mr Hatcher does not try to make it easy for me, your Honour. The Minister's response to that, is as follows. The Minister does not seek to make submissions which of themselves bear particularly upon the present matter because that is not his role as intervener and nothing I say I would wish to be characterised as having that nature but the Minister does submit that there is on foot a matter of public importance in this matter. It is not the case in the Minister's submission that the matter can be regarded as of no continuing content so it is inappropriate for the Commission to entertain the application for leave to appeal.

PN331

I don't, as I said, wish to support either contention as to that application on its merits, but in the context of the relationship between the parties and the reference by my learned friend, Mr Slevin, to the relevance of the determination of this application and any appeal for the continuing position of the parties, it is not a hypothetical matter. The term of the order might have been constrained by a date but that is to be seen in the context of the argument and the hearing before the learned Commissioner and then the learned presiding member as to a stay where there was discussion of how the matter was to be carried forward until today and the transcript reflects that.

PN332

In the context where, can the Minister's submission, it is therefore not the case that there is no continuing matter of utility which the Commission ought to permit be entertained by the Full Bench, then the matters that the Minister has raised do arise. Indeed, one can perhaps characterise them as being equally relevant to the application believed to appeal. If that addresses your Honour's question. If the Commission please.

PN333

SENIOR DEPUTY PRESIDENT MARSH: Could I just ask you a question? If we were minded to a further matter as sought by the Minister, what is the union's position with respect to the hearing of the appeal?

PN334

MR SLEVIN: Were it to be referred before argument, then it seems the appeal would have to be adjourned until the response from the Court was received given what is said in section 46, subsection (2), I believe:

PN335

If the question referred to the Court is not whether the Commission may exercise power in relation to the matter, the Commission may, in spite of the reference, make an award or a decision.

PN336

So you don't have the power to proceed I think in these proceedings.

PN337

SENIOR DEPUTY PRESIDENT MARSH: Yes, that is what I had in mind, yes.

PN338

MR SLEVIN: I think in these proceedings it would be more appropriate for the Commission to adjourn the appeal given that the outcome of the question may impact, or certainly impact on the decision of the Commission.

PN339

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN340

MR SLEVIN: I won't perhaps your Honour, I may - these arguments about whether the Commission is bound to follow Emwest - - -

PN341

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN342

MR SLEVIN: - - - are questions that have arisen very late. We are prepared to meet those in the proceedings today if the Commission is going to grant the leave to allow those arguments to be - or that issue to be agitated we will be seeking an adjournment and perhaps to address those matters in written submission in any event, so I foreshadow that application may assist the Commission in its considerations now.

PN343

SENIOR DEPUTY PRESIDENT MARSH: That is with respect to the Minister's alternative decision, is it?

PN344

MR SLEVIN: That is it in respect of - that is right.

PN345

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes.

PN346

MR SLEVIN: If you proceed and it becomes an argument about whether you are bound by Emwest, or otherwise.

PN347

SENIOR DEPUTY PRESIDENT MARSH: Yes. You are foreshadowing and secondly, given an opportunity to put perhaps in writing, submission on that issue.

PN348

MR SLEVIN: Yes.

PN349

SENIOR DEPUTY PRESIDENT MARSH: We intend to take luncheon adjournment. Is it convenient to the parties that we resume at a quarter to 2? Is that appropriate?

PN350

MR SLEVIN: Yes.

PN351

SENIOR DEPUTY PRESIDENT MARSH: Yes. Very well then we will adjourn until a quarter to 2.

LUNCHEON ADJOURNMENT [12.38pm]

RESUMED [1.51pm]

PN352

SENIOR DEPUTY PRESIDENT MARSH: On behalf of the bench, can I indicate to the parties that we are inclined at this stage to the view that we should adjourn the matter to consider the application brought by the Minister this morning as a threshold matter. However, there is at least one matter we wish to raise with the parties. Over lunch hour we had cause to review the decision of the Federal Court in Hamzy v Tricon International Restaurants matter and in that decision of the Full Court, certain observations were made with respect to difficulties that were confronted with the application made under section 46 in that matter of a technical nature including under the rules of the Court that the matter - a question referred must state the facts concisely.

PN353

The technical problem might have been overcome if the Full Bench made findings of act. We would be assisted if - and we invite the parties to address us on the issues arising out of that matter and whether or not they do have relevance to the matter before us. Given that it was put to us this morning that there's not agreement on facts in this matter, how that matter should be dealt with if there is a requirement for us to follow the rationale of the Full Court in Hamzy and whether or not that means as a matter of practicality, we should hear the appeal before we decide as a threshold matter the Minister's application.

PN354

We don't expect the parties to address us immediately on those issues but we would invite any observations or views or views of the parties as to how they would like to deal with that matter, whether they would like an adjournment of the matter, whether you come back later today, whether we set another date down or whether these matters could be addressed tomorrow. If any party wants a short adjournment to seek instructions now just on that threshold, maybe that is quite appropriate to.

PN355

MR BATT: If the Commission pleases, it might perhaps at least possibly be of assistance if we could have a short one to have a word amongst ourselves and to take instructions and perhaps come up with a position that has been discussed and it might readily facilitate the progression of the matter. Also to take instructions if discussions between the members of the bar table can't of themselves take it that far.

PN356

SENIOR DEPUTY PRESIDENT MARSH: It would assist parties, we can make a copy of the decision available if it is not before the parties.

PN357

MR HATCHER: That would certainly assist from our perspective.

PN358

SENIOR DEPUTY PRESIDENT MARSH: I quite understand how you would be assisted by that, Mr Hatcher. Does anyone else other than Mr Hatcher want to avail of our very generous invitation on this occasion?

PN359

MR BATT: I would like to join Mr Hatcher coat tails if I could please, your Honour.

PN360

MR SLEVIN: I don't want to be the odd man out, your Honour.

PN361

SENIOR DEPUTY PRESIDENT MARSH: I can't review the agreement today on some of these very important issues.

PN362

MR HATCHER: Might the record note that that is the third time today Mr Slevin has agreed with me.

PN363

SENIOR DEPUTY PRESIDENT MARSH: Very well. We will adjourn and make copies of that decision immediately available to each of the parties and perhaps if you can make arrangements with my associate when you are in a position to resume. All right. The Commission adjourns on that basis.

SHORT ADJOURNMENT [1.55pm]

RESUMED [2.30pm]

PN364

MR BATT: I thank the Commission for its indulgence by increment there. We have had extensive discussions. I can't say that we've come to a consensus about the progression of the matter but could I outline the position which the Minister would respectfully submit and as part of that outline, the extent to which there is some consensus.

PN365

SENIOR DEPUTY PRESIDENT MARSH: Yes, certainly.

PN366

MR BATT: As the Minister understands it, the Commission will reserve on the question whether to refer. If the Commission decides not to make the reference, then the matter falls away but if the Commission has a concern whether if there were to be a reference which is a matter on which the Commission has not decided, there would be a difficulty in formulating appropriately the case stated which the Federal Court rules require.

PN367

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN368

MR BATT: If that is a correct understanding of the matter that the Commission has raised?

PN369

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN370

MR BATT: The Minister quite accepts that there have been many cases where there have, at the end of the day, arisen difficulties in referring questions and in devices of this nature. So it is, if I might say, a very proper matter to raise at the outset. The position of the Minister is that there could be no difficulty because the question is whether the case stated might be the following nature, there is on foot a certified agreement which is pre its normal expiry date. There is a party who proposes to take industrial action which it says is on a matter or for a claim on a matter, not dealt with in the agreement.

PN371

The other party contends that the matter is dealt with in the agreement. So there we have three facts, none of which could be in dispute between the parties. That is all that, with respect, the Minister would say would be needed and then there would be the question and the question would be as set out in 5(a) of our submissions on the proper interpretation of the Act, we would change it to the word "is". On the proper interpretation of the Act, "is" industrial action taken to support a claim where there is a pre-NED agreement, protective action where the claim relates to a matter not dealt with in the agreement.

PN372

In other words, the submission of the Minister is that the reference would take place now if it is to take place at all for determination of the appeal because it arises as an anterior issue and if there is to be a reference it should take place now. If that is to be the case, then the only facts that need to be set out are the three that I've referred to. Indeed one could almost simply have the question but the rules require some facts but really the only fact is that this question arises as a matter of general law.

PN373

In our submission as a result of all of that, there's no basis for the Commission, proper though it is to overt to it, to fear that if the Commission decides to make a reference, there could be a difficulty about formulating the question. The submission this morning about factual matters remaining in dispute was whether crib time in the agreement is the same matter in a relevant sense as fatigue management breaks. Now, whilst the Minister does not wish to trench upon the parties positions, the Minister would submit that that is plainly actually only a matter of law.

PN374

So there's no factual matter in dispute. The only facts are the content of the agreement and then one construes the agreement what legally does it mean. However, even if it is thought that those matters are ones of fact, which the Minister would descent from, then the resolution of whether fatigue management breaks are crib time is not a question that needs to be determined at all for this question of law to be phrased and put and answered. If it is answered, then - I beg your pardon - if it is answered in one way, then that removes the need to go on to consider whether fatigue management breaks are crib time because the whole issue will have ceased to be a relevant legal issue because the interpretation of the section will be different.

PN375

So whilst perhaps I'm saying it in a lengthy way, we say that nothing which - even if it is a factual dispute, is a factual dispute that would trouble the Commission in formulating a question. Now, if the Commission does not decide to refer, none of this matters anyway. If, after reserving, the Commission does decide to refer, then we would submit there would be no trouble in the pursuit of order 50 of the Federal Court Rules. That procedure would be followed. The Minister would frame the state of case which would be very short, it would be circulated to the other parties for their input, if I can call it that, pursuant to order 50.

PN376

Then the Commission would have the role that the order provides it would have in settling it. We would submit that there's no difficulty to be feared in that being able to be done and the proper stated case formulated. So in those circumstances, the Minister would respectfully urge the position that the Commission reserve its decision on referral and when that decision is handed down, if there is to be a reference, the order 50 procedure will be followed. If not, then the issue falls away.

PN377

We would therefore submit respectfully that there need be no concern about the Tricon issue given the nature of the question here and the way that the facts do not bear upon it in any disputed sense.

PN378

SENIOR DEPUTY PRESIDENT MARSH: Yes, I hear what you say. If the question of law was resolved by the - referred to the Court and resolved in a manner that the Minister seeks, then the issue of whether fatigue management break were covered by crib breaks would fall away. Is that the essence of appeal?

PN379

MR BATT: Yes.

PN380

SENIOR DEPUTY PRESIDENT MARSH: Or one of the major grounds of appeal. Why wouldn't it be to accept the Full Court's ruling in paragraph 23, where it said:

PN381

If the Full Bench accepted Mr Hamzy's contention he was not a casual employee, none of the questions referred to the Court would be material.

PN382

Why wouldn't it be that if we decided that fatigue management breaks were covered by crib breaks, that the questions also wouldn't be material, because it would resolve the matter?

PN383

MR BATT: Your Honour, I understand the question. That is I think a matter also that your Honour asked me about this morning.

PN384

SENIOR DEPUTY PRESIDENT MARSH: Yes, it is a similar question.

PN385

MR BATT: Yes.

PN386

SENIOR DEPUTY PRESIDENT MARSH: In a different context.

PN387

MR BATT: Yes, and I understand the question and why it is asked. My response to that is that the Commission is going to exercise its unfettered discretion, taking into account all relevant considerations, whether to make a reference. It may be - although we would urge against this - that the Commission decides that by reason of the matter that you have raised, the discretion wouldn't be exercised. Now, we would say, it is a legally anterior question that we seek to raise, it is a logically anterior question that is important.

PN388

One shouldn't need to and one does not need to get to distinctions of a crib time fatigue management break nature if the legal position is otherwise and that should be resolved now by the Court and it should be sent off for reasons applicable to this case and in a more general sense. That may be something which affects the Commission's exercise of its discretion. If my submission just then is accepted, then it won't and there would be a reference.

PN389

What we do submit is that once the Commission has decided whether to make a reference, the matter that your Honour has raised does not affect the viability and the feasibility of a reference being appropriately formulated so that I've either as it were lost on the very question on whether there will be a reference by reference for example to the matter that your Honour has raised, or I haven't. If the Minister has not lost on that ground and one is on that hypothesis at the point of referring, then a proper question can be referred.

PN390

The matter that you have raised with respect is a matter that goes to the discretion and the Minister submits that if there is to be a reference it should be now before there has been a hearing of all the issues, before there has been the time and cost and so forth that that takes up and that that is consistent with the fact that legally and logically, the issue that the Minister raises comes earlier in the chain of statutory analysis. If the Commission is against me on that then, well, these issues continue and are determined in the Commission. If not, if the Commission does accept there should be a reference, then it can be done and order 50 is not a problem.

PN391

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand, thank you, Mr Batt.

PN392

MR BATT: Might I simply say, if the Commission does not form the view that all that needs to be done now in light of that is to adjourn to reserve its decision on the reference and wishes to have some procedure in force to try to deal with the Tricon issue, if I can call it that, if the Commission contrary to what I have endeavoured to say, considers that that is in fact a difficulty, then the position that the Minister would respectfully suggest is that there be a direction that by a certain date the Minister circulate to the parties and to the Tribunal a draft stated case, which subject to further consideration and instructions would be of the nature that I set out, subject to those matters. In any event, it would be circulated by the date, that could be done shortly.

PN393

There would then be another date by which the parties would advise the Commission whether they agreed to that document or a modified form of it and, if so, then the Commission would at that point have an understanding that the parties themselves say: here is what the stated case would be and we have no concerns about its formulation.

PN394

If that couldn't be agreed to then there will be another date for the re-listing of the matter, for argument, about it all for written submissions if that was seen to assist the Commission. So we say: really there is no difficulty and so it is a question of whether to actually make the reference, and that is what your Honours and Mr Commissioner will decide. We would urge you to make that decision and then it will be abided by. If you feel that you can't make that decision without some further procedural steps then we will, of course, propagate in whichever way would assist and we would suggest something of the nature that I've just outlined.

PN395

But as the order 50 steps only are taken, once there is to be a reference and are merely the procedural prescriptions that the Federal Court has set down as ones that have to followed once there has been a reference then our position is: there's no real basis at all to fear any difficulty in complying with them so they shouldn't be the subject of attendance, unless and until we know that your Honours and the Commissioner intend to make the reference.

PN396

SENIOR DEPUTY PRESIDENT MARSH: At this stage, yes. Yes, I understand, thank you.

PN397

MR BATT: If that assists?

PN398

COMMISSIONER HOFFMAN: Mr Batt, sorry, just a couple of questions?

PN399

MR BATT: I'm quick to try and sit down, Mr Commissioner.

PN400

COMMISSIONER HOFFMAN: In terms of what the Full Court said in Hamzy, with respect to the questions that were put, they note that the questions referred to them by the Full Bench were ..... more narrowly than those suggested by counsel in para 15. Do you have anything to say - whilst I accept you indicated that the Commission could settle on matters after they have been circulated to us, but do you say that the question should be put consistently with what counsel say or do you say that the Commission should review the proposed questions and determine that matter as what goes forward to the Federal Court, that is one question, if you would like to answer that?

PN401

MR BATT: Yes. I'm just having regard to the terms of order 50, which is the applicable order. We would submit, Commissioner, that there is a role, given the terms of order 50, the nature of the procedure for the Commission and that, in particular, under rule 2 of order 50, which is subject to contrary order by the Commission but subject to such a contrary order the special case will be prepared in draft by us after consultation with the other parties and shall be settled by the Commission so that whilst we would do our best, as it were, to formulate and send to you a case that needed no settlement, the order contemplates that ultimately it is for the Commission to ensure, to its satisfaction, that what is referred is what the Commission intended to be referred, having exercised its section 46 discretion.

PN402

To that extent, as perhaps happened in an analogical way in Tricon there could be intervention by the Commission in the terms of the stated case, and no doubt that could be done in whatever way procedurally it was perceived by the Commission to be most appropriate.

PN403

COMMISSIONER HOFFMAN: Yes, yes, thank you. With respect to paragraphs 23 and 24 of the Full Court in Hamzy again, they observe initially that the problem was when the Full Bench referred the questions there was no agreed statements of facts between the parties and that later, some time later, the parties filed an agreed statement of fact but they didn't address this casual issue. So do you say there's any comparison to the situation here where the issue is: is a crib time equivalent to a ..... management or otherwise, and what do you say as to an agreed statement of facts, perhaps excluding that one issue?

PN404

MR BATT: What we would say is that ultimately, the requirement and the necessity is that everything which, factually, the Court needs to know in order to answer the question has been stated as a fact to the Court so that they are not left saying: well, we can't answer the question because we don't know something we need to know. Therefore, that drives you to the nature of the question and the question, as formulated in the Minister's submissions, is one which, of its nature, depends upon so few facts, even though it is still a matter arising in - an issue arising in the matter, but it depends on so few facts because it arises so early that the Tricon situation won't arise.

PN405

That was an example of where something which needed, factually, to be dealt with in the stated case wasn't but given the nature of the question here, there would be nothing of that nature. In particular, the question can be formulated, and asked of the Court and answered by the Court, without reference to whether it is the case that crib time covers fatigue management or not. Of course, the parties are in dispute about that question. The Minister does not make a submission about it, other than to say that it is a question of law not of fact, in any event, because the only fact is the agreement containing these clauses, and then how does that legally operate?

PN406

What legal consequences does it have? So the Minister says the whole question is one of law anyway, but if it is one of fact, then the Minister makes no submissions about which view is right. However, all that is relevant for present purposes is that whichever view is right isn't a question that you need to know, or you need to have answered before you can state the relevant stated case in the present circumstances. To come back to where you asked me, the Tricon position where the Full Court said: well, we still weren't told the answer to this, does not matter because a legal question that arises in the matter, namely, the one I've formulated, arises before you get to deciding those things and, indeed, depending on how it is answered, it relieves the Commission of any necessity to address the issues.

PN407

It is for that reason that we would submit that it should be, if it is to be referred, it should be referred now because if it is going to, depending on how it is answered, resolve whether you need to address the issue, the issue should not be addressed until the answer to whether the issue ever arises is known. Is there anything further that the Commission can be assisted by?

PN408

SENIOR DEPUTY PRESIDENT MARSH: No, thank you. Thank you, Mr Batt. Mr Hatcher?

PN409

MR HATCHER: Well - - -

PN410

SENIOR DEPUTY PRESIDENT MARSH: I don't know if this is the right order but - - -

PN411

MR HATCHER: I'm more than happy to go in any order that pleases the Commission.

PN412

SENIOR DEPUTY PRESIDENT MARSH: Well, Mr Slevin is not objecting so - - -

PN413

MR HATCHER: He has been very agreeable today. If it please the Commission, my client's position remains as it was at the outset. We say this isn't an appropriate case for leave. If it is an appropriate case for leave, it is an appropriate case because the Commission would wish, or considers that it is in the public interest that the questions that arise as to the application of section 170MN be determined. They are questions of law. They can only be authoritatively determined, in our submission, by the Federal Court.

PN414

For that reason, if the Commission were minded to grant leave to appeal, we say that the Commission would accede to the proposition that the questions be referred. As to the procedure to be followed, we agree with what has fallen from my learned friend for the Minister. The question, as formulated in the Minister's submission, is a very simple, straightforward question. The only facts necessary for the Court to be able to determine that question are that there is an agreement in place. The agreement is within its nominal term.

PN415

The union has sought to initiate a bargaining period. The union has sought to embark upon industrial action, pursuant to that bargaining period, and my client has sought and obtained relief under section 127 of the Workplace Relations Act. Now, not one of those facts is in issue. Those facts are sufficient for the Court then to determine the question of whether the industrial action which is sought to be embarked upon is protected, and protected from the sanction at section 127, if it please.

PN416

MR SLEVIN: Your Honour, I'm not being agreeable now. We suggest - the course we suggest is that the matter be adjourned, that there may be a timetable for written submissions to address the impact of the Tricon case on the proposal of the Minister for a referral. Of course, a stated case could be put at this time along the lines that have been described to you. The question is whether that stated case satisfies paragraphs 23 and 24, in particular, of the Tricon case. We have only had a brief chance to have a look at it, and we would like an opportunity to have a look at it in a little more detail.

PN417

A reference under section 46 is a reference by the Commission, not by the parties. The Commission wants to be satisfied, when it makes that reference, that it does so in accordance with - if it makes that reference, I should say, does so in accordance with the principles set down in decisions like the Tricon case and, consequently, we would like the opportunity to address you on that. We don't agree, as we stated earlier, that this question of section 170MN is a legally anterior question to the determination of this appeal.

PN418

It may well be that we are wrong, and the Commission determines that this case isn't of a nature that leave would be granted. It may well be that the Commission decides on hearing the appeal, that Commissioner Roberts was right, and that the industrial action was not protected action, even in light of Emwest. It seems that those sorts of questions should be finally determined in the Commission before a question of law, and then at that point, the question as to all - the Commission may decide that we are right, and have a concern that as a matter of law, perhaps the replying decision of the Federal Court, that that is wrong.

PN419

Really, this is ultimately what this application comes down to. It is a means of appealing the single member of the Federal Court to a Full Court on the question of section 170MN, subsection (1). If that is what is going to be done, we suggest that all other matters should be tidied up in the Commission before that is done. That is the thrust of our submission, and one of those matters to be tidied up is to ensure that if any reference is made, it complies with order 50 and the sorts of matters raised in Tricon.

PN420

So our suggestion is that there be a timetable set. My friend can do as he suggested in his submission on procedure in that process and provide a statement of facts that he suggests should be put forward and it would assist us, having seen that, to apply the Tricon case to that proposal, and to make appropriate submissions at that time, if the Commission pleases?

PN421

SENIOR DEPUTY PRESIDENT MARSH: Yes, we will consider what has been put. We will adjourn these proceedings, yes, to deliberate upon what has been put and we will reserve a decision in this matter.

ADJOURNED INDEFINITELY [2.55pm]