C2002/4196, Transcript of Proceedings [2002] AIRCTrans 4278 (30 October 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT403
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER FOGGO

C2002/4196

APPEAL UNDER SECTION 45 OF THE ACT
BY SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION AGAINST THE
DECISION PR920684 OF COMMISSIONER
EAMES AT MELBOURNE ON 30 JULY 2002
IN C2001/4061

MELBOURNE

2.04 PM, MONDAY, 14 OCTOBER 2002

PN1

MS A. GOOLEY: I seek leave to appear on behalf of the SDA. With me is MR M. GALBRAITH.

PN2

DR G. SMITH: I seek leave to appear for Big W. With me is MS K. BALDWIN from the company.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Yes, there is no issue as to leave. Leave is granted in both cases. We have the benefit of written submissions in compliance with directions. The submissions of the - Morris Blackburn Cashman on behalf of the appellant will be marked exhibit A1.

EXHIBIT #A1 SUBMISSIONS OF MORRIS BLACKBURN CASHMAN ON BEHALF OF APPELLANT

EXHIBIT #R1 SUBMISSIONS OF CLAYTON UTZ ON BEHALF OF BIG W

PN4

SENIOR DEPUTY PRESIDENT WATSON: The matter has been listed today for the purpose of brief oral submissions in support of the submissions and we ascertain from the written submissions that the issue is fairly narrow - a fairly narrow one going to whether the Commissioner erred in characterising the dispute as not being a matter arising from the agreement having regard to the health and safety clause within the agreement. Yes, thank you, Ms Gooley?

PN5

MS GOOLEY: Thank you, your Honour. We were provided this morning with a folder from Clayton Utz which contained a series of cases on which they rely and yet we have also relied. We have got some additional authorities which we wish to provide.

PN6

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN7

MS GOOLEY: The SDA relies in these proceedings on the submissions that it filed which has now been marked as exhibit A1. We do wish to make some additional comments though in relation to a number of the matters that were raised in the submissions of Big W, some of which, it could be said, go to matters that were not determined by Commissioner Eames, but one at least, may be able to be determined by this Bench without the need to refer that matter back to Commissioner Eames though the merits of the application, if it is found to be a dispute, over the application of the agreement, we submit, should properly be determined by an appropriate Commissioner after hearing the evidence which in effect was before Commissioner Eames.

PN8

Well, maybe we need to put more evidence before Commissioner Eames because Commissioner Eames in this matter decided this issue quite narrowly. He decided that because the union had made a claim for anti- fatigue matting which was not included in the final agreement there could be no dispute over the application of the agreement for him to resolve. We say that he characterised that dispute incorrectly. The dispute before him was a dispute over the application of the Occupational Health and Safety clause in the agreement. And in focusing on the anti-fatigue matting issue, we say, Commissioner Eames fell into error.

PN9

One of the first matters that Big W put to you was, in their submissions in reply to ours, was that in any event Commissioner Eames would not have had the power to arbitrate this dispute. Big W submitted in paragraph 17 onwards that the clause within the dispute resolution procedure which provided, that in the event there was a dispute, the matter was to be - and I will just quote:

PN10

If either matter is unresolved either party may refer it to the Australian Industrial Relations Commission for determination.

PN11

And in their submissions, Big W relying on the decision in Warkworth, I think, is how you say it, that held that you have to look at the specifics of the dispute resolution clause to see whether the Commission has the power to arbitrate a dispute. In that matter the clause that was before the Bench was, if the matter remains unresolved, it will be referred to either party, to the appropriate industrial authority. And the Full Bench in that case held that that did not authorise the Commission to arbitrate the dispute. That decision in Warkworth has been considered by other members of this Commission, in particular Senior Deputy President Duncan, in FSU v GIO which is one of the cases that we have referred you to there.

PN12

SENIOR DEPUTY PRESIDENT WATSON: I should indicate for the benefit of the parties the decision of Senior Deputy President Duncan has in turn been considered by a Full Bench on appeal with the decision reserved at this time.

PN13

MS GOOLEY: In that decision he said that he had to consider a dispute resolution procedure where it said the matter will be referred to the AIRC for resolution. Senior Deputy President Duncan held at paragraph 43 of that decision that that expression conferred on the Commission the ability, indeed, the duty to resolve the matter. And he held that he had power under that dispute resolution clause to arbitrate the matter before him. In that decision Senior Deputy President Duncan referred to a number of other decisions of members of this Commission in which they have held that they had the power to arbitrate matters in dispute.

PN14

And he considers those decisions at paragraph 42 of his decision. I don't propose to take you to each one of those. But in each one of those clauses that were before the Commission it was held that they empowered this Commission to arbitrate. We submit that the expression, referred to the Commission for resolution - sorry - referred to the Commission for determination, empowers this Commission to arbitrate disputes over the application of the agreement. The main matter of substance raised in the Big W submissions was in fact the argument that the clause - the occupational health and safety clause is no more than a series of commitments.

PN15

It creates no enforceable obligations on the parties and therefore there can be no dispute over its application because in fact the clause did not require Big W to do anything other than the provisions that are set out in paragraph (c) which was meet and consult. In paragraph (d) providing training. Paragraph (e) providing a consultative process and (f) where there are changes to equipment, substances, etcetera. We say that Big W has misunderstood clause 2.6(a) of this clause. This clause, which they characterise as committing Big W to abiding by the relevant occupational health and safety legislation, is a mis-read of the clause.

PN16

The clause requires - provides that the parties are committed to achieving and maintaining healthy and safe working conditions. And the important words are, "By abiding by all relevant occupational health and safety legislation." The obligation that this created in this clause is an obligation to abide by all relevant occupational health and safety legislation. And if you go to the legislation, which is an exhibit in the main proceedings, which was - - -

PN17

SENIOR DEPUTY PRESIDENT WATSON: A6.

PN18

MS GOOLEY: A6, your Honour.

PN19

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN20

MS GOOLEY: That sets out in the relevant legislation, which is the Victorian Occupational Health and Safety Act 1985, a series of obligations which, by virtue of clause 2.6 of the certified agreement, are the obligations that Big W now have to comply with by virtue of the certified agreement.

PN21

SENIOR DEPUTY PRESIDENT WATSON: That raises the question of whether enforcement could be achieved through the mechanisms within the Health and Safety Act, if it is a breach of the Act.

PN22

MS GOOLEY: There are certainly provisions in terms of breach of the Act and it may also be that there are - it is possible - it would be possible for the SDA to seek the imposition of a penalty under the Workplace Relations Act against Big W if it found to be a breach of that clause of the certified agreement which gives rise to the obligations to abide by the occupational health and safety requirement. And we say there is nothing unusual in the notion of there being obligations under different statutory requirements that can arise out of the one instrument.

PN23

For example, a clause in a certified agreement that obliges a party to abide by equal opportunity legislation. You would have a number of mechanisms whereby you could seek to enforce those provisions. If you had a dispute about how those provisions applied in practice at the workplace, and you had a certified agreement which had a dispute resolution procedure, you could invoke the dispute resolution procedure under the certified agreement. You could equally make application to the Equal Opportunity Commission, or if it was a term of the agreement, you could also apply to the Court to find that there was a breach.

PN24

One of the difficulties, obviously, in terms of finding of a breach under the Workplace Relations Act, is that what is available to you is a penalty, not any requirement that they perform the obligations under the agreement. So we don't think there is anything inconsistent with there being an obligation under the Act and an obligation under the agreement. And in that we fundamentally differ with Big W who seem to submit that the inclusion of such a clause in the agreement was intended to create no such obligations. In fact one wonders why such a clause would be included in an agreement if it did not intend to create additional obligations over and above that provided in the Act. Those obligations being the ones that are applicable to certified agreements.

PN25

SENIOR DEPUTY PRESIDENT KAUFMAN: But, even if that is so, how would you characterise this dispute as being over the application of the - what is it about the application of the agreement that is in dispute?

PN26

MS GOOLEY: We say the obligation - Big W have an obligation to provide, in accordance with the Act, a safe workplace. We say they failed to do that by failing to provide anti-fatigue matting to employees.

PN27

SENIOR DEPUTY PRESIDENT KAUFMAN: You say they have breached the agreement?

PN28

MS GOOLEY: Yes.

PN29

SENIOR DEPUTY PRESIDENT KAUFMAN: What is the dispute over its application?

PN30

MS GOOLEY: Well, Big W say that the agreement has no application in this circumstance at all. And we say it does. We say that the agreement provides that they are obliged - just like an agreement that has a mechanism whereby you follow a grievance - sorry, let me characterise it this way. If you had an agreement that said you cannot do X without consultation, and they did X without consultation, it would equally be a breach.

PN31

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, there is a breach of the agreement.

PN32

MS GOOLEY: There is a breach of the agreement.

PN33

SENIOR DEPUTY PRESIDENT KAUFMAN: But that is not - is that a dispute over the application of the agreement?

PN34

MS GOOLEY: Yes, yes. Otherwise, these clauses have - dispute resolution procedures always arise when there is an argument about whether there is a breach or isn't.

PN35

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, is that necessarily so? If it is a dispute as to whether there is a breach or not, do you say that that is the same as it being a dispute about the application of the agreement.

PN36

MS GOOLEY: No, I say it is a part - part and parcel of the same matter. If you look at the kind of issues that have been before the Commission in arguments about disputes arising over the application of agreements, and if we look at the one that Senior Deputy President Lacy in terms of the MUA - I will just turn to that decision - the MUA in that case - there was a dispute over the issuing of disciplinary warnings to employees. The SDA - sorry, the MUA in that case argued that that was not done in accordance with the dispute and grievance procedure in that agreement.

PN37

Now, if they are correct and it wasn't done in accordance with the dispute resolution procedure or grievance procedure in that agreement, then there was a breach. It had occurred. But the Commission in that matter held that they were able to arbitrate over that dispute.

PN38

SENIOR DEPUTY PRESIDENT KAUFMAN: But isn't the distinction there that the dispute there was how the agreement was to be applied in relation to the disciplinary procedure?

PN39

MS GOOLEY: And that is what we have here. We have a dispute as to how occupational health and safety - how the safe workplace is to be provided. We say that the provision of a safe workplace involves the provision of anti-fatigue matting. Woolworths says it doesn't. But, equally, as in the MUA case, there was an argument - there was a breach. And in many of the cases that are dealt with there is simultaneously a breach of the agreement but there is a dispute over how the agreement is applied over what it means, over what obligations it was intended to impose on either party to that agreement.

PN40

COMMISSIONER FOGGO: Ms Gooley, why has this dispute arisen at all? My understanding from the background information is that it was before Commissioner Grainger. That he helped the parties to agree to a process that they agreed on an independent consultant who came down with a report that there should be anti-fatigue matting.

PN41

MS GOOLEY: Yes.

PN42

COMMISSIONER FOGGO: Why are we here today?

PN43

MS GOOLEY: Because Woolworths did not accept that recommendation.

PN44

COMMISSIONER FOGGO: Well, perhaps that is an issue I should take up with Dr Smith.

PN45

MS GOOLEY: Yes. They did not accept the recommendation. And I think - yes, that is why we are here. What we say - because you will see in the submissions of Big W that they are quite - their argument is that this provision created no obligations. And that the inclusion of it in the agreement was - just bear with me a moment, your Honour. What Big W wish to do in these proceedings, is, in effect, take the clause out of the agreement and say it is an occupational health and safety matter - should be dealt with under that legislation. We say by placing it in the agreement - by placing such a clause in the agreement it makes it a term of the agreement that provides that a breach of the agreement - the breach of the clause is not simply a breach of statute but a breach of the agreement.

PN46

And it brought disputes over occupational health and safety within the scope of the dispute resolution clause. Commissioner Raffaelli, in his decision in the MUA v Broome Port Authority, expressed very clearly what this notion of what is a dispute over the application of the agreement. He said at paragraph 25, he says:

PN47

The application must mean how the agreement is to apply.

PN48

In that case there was a dispute over promotion. Commissioner Raffaelli in that case that there was no dispute over the application of the agreement because the agreement did not deal with promotion. But in this case the agreement does deal with occupational health and safety. There is a clause that imposes obligations on the party. Vice President Ross in the airlines case - in the Ansett Pilots Association case held the dispute over the payment for pilots of certain aircraft was not a dispute over the application of the agreement because it sought to add new rates for pilots and that could only be implemented by agreement.

PN49

He held that there was no term of the agreement that was in dispute between the parties. That the dispute was not about a particular term rather it sought to establish a new term. Well, that is quite distinguishable in terms of what was before Commissioner Eames. There was a dispute about the application of clause 2.6. The SDA was not seeking to include a new term into the agreement. It was in dispute with Big W about how that provision in the agreement was to apply. And Big W have submitted to you that that argument was not put to Commissioner Eames.

PN50

And we say it was clearly put to Commissioner Eames at paragraphs 180 to 192 of the transcript where the SDA took the Commission in detail to the obligations imposed on the employer by the Occupational Health and Safety Act. What we say, where Commissioner Eames fell into error in this instance, was in mistakenly characterising the dispute in terms of the anti-fatigue matting as opposed to characterising the dispute as one as a dispute over the application of the occupational health and safety clause in which the SDA was seeking to have, as a settlement of the dispute, the provision of anti-fatigue matting.

PN51

And I just want to say something briefly in relation to the floodgates argument that my friend raises at paragraph 46. My friend says:

PN52

If the Commission were to find that, by merely placing in a certified agreement a clause stating that the parties are committed to abiding by relevant occupational health and safety legislation, the Commission can then proceed to arbitrate a claim, which if acceded to, would impose wide ranging obligations on the employer, then the floodgates would be well and truly opened.

PN53

My friend suggested in those circumstances employers may choose not to include clauses on occupational health and safety in certified agreements and that would be undesirable. We would say it would be undesirable to have a provision in an agreement that imposes obligations on parties which they then seek to walk away from. The inclusion of terms in certified agreements has consequences for both parties. At times in certified agreements clauses are expressed in general terms and create no obligations. Where the parties choose to create obligations, as this clause does, then there is no floodgates that are being opened by this Commission.

PN54

It was the choice of the parties to include such a provision in a certified agreement. They already had an obligation under the Occupational Health and Safety Act. They chose to make that a part of their certified agreement. And in terms of the objects of the Act - one of the objects of the Act is of course the parties abide by the obligations that they put into those agreements. So, we say, Commissioner Eames erred in characterising the dispute as he did and therefore we think that his decision should be overturned. Thank you.

PN55

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Dr Smith?

PN56

DR SMITH: Thank you, your Honours and Commissioner. The substance of our arguments are set out in paragraphs 17 onwards in the written submissions. And I don't propose to read them because you haven't had an opportunity to read them carefully - you will take that opportunity, I am sure. What we are saying is that Commissioner Eames did get it right. That he properly characterised the dispute as claimed by the SDA for provision of fatigue matting for door greeters. That the SDA don't get over the line by asserting that in fact it was a dispute over occupational health and safety.

PN57

That doesn't make it a dispute over the application of the agreement. The agreement contained a clause which dealt with a number of aspects of occupational health and safety. And (b) a dispute of the requisite kind to give the Commission jurisdiction, it must be a dispute over the application of the specific provisions of that clause. Now, in the written submissions I have carefully piece by piece analysed the clause and shown, that on all the material before commissioner Eames, there is not a dispute over the application of any of those clauses.

PN58

And I want to make this point about the argument, that by the parties agreeing to abide by all relevant occupational health and safety legislation, that does not mean that any dispute about occupational - any occupational health and safety is a dispute over the application of the agreement. To get to that point you have to say that the parties were intending by that clause to incorporate the entirety of the legislation - the whole legislative scheme that relates to occupational health and safety legislation in Australia.

PN59

SENIOR DEPUTY PRESIDENT KAUFMAN: What is the reason for having a commitment to abide by the legislation? The parties to abide by legislation in any event. What is the reason for the commitment clause?

PN60

DR SMITH: There are many provisions in agreements that you could well ask that question about.

PN61

SENIOR DEPUTY PRESIDENT KAUFMAN: Oh, I know that.

PN62

DR SMITH: Sometimes parties feel better if they state in a document that they are going to commit to do something that they otherwise have to do anyway. I don't believe it adds anything - I think it is just simply a statement of all the parties - commit to comply with the legislation, no more. It doesn't actually say anything more.

PN63

SENIOR DEPUTY PRESIDENT KAUFMAN: This is like all law abiding citizens saying I will abide by the law.

PN64

DR SMITH: Yes, yes. I mean, it is true that - if you could take - contrast simplified awards with agreements. Simplified awards used to contain lots of commitments to do all sorts of things which have now been removed through award simplification because they don't actually add anything. They are superfluous. I don't believe that this particular clause adds anything to the parties' obligations to abide by relevant occupational health and safety. Well, that is in sub paragraph (1). The remaining parts of the clause - and I think it is worth looking at carefully - do add substantive obligations.

PN65

SENIOR DEPUTY PRESIDENT WATSON: Just before you do. Does the transcript in relation to certification shed any light as to why this provision is there?

PN66

DR SMITH: I haven't gone back and had a look at the transcript in relation to certification, your Honour. I would be very much surprised if it did that.

PN67

SENIOR DEPUTY PRESIDENT WATSON: Well, it probably doesn't in the normal case. I was just wondering whether this might be an exceptional case.

PN68

DR SMITH: So, looking at the remaining parts of the - of clause 2.6, they do add substantive obligations on Big W. And we concede that if we had not followed any one of those discrete obligations - and there is a dispute about that, that that would be a matter that would give the Commission jurisdiction. For instance, look at paragraph (c):

PN69

On request Big W will meet with the national secretary or their nominee of the SDA to discuss any national or statewide issues in the workplace that the SDA may perceive are affecting associates' health and safety.

PN70

If we didn't do that, and there was a dispute about that, then the Commission would have jurisdiction under LW. No question about that. The same with the other obligations in (d), (e) and (f). In particular paragraph (f). If we propose changes to equipment, substances or work practices that may reasonably be expected to affect associates' health and safety, then there is a commitment to consult. And if we were proposing to introduce changes and didn't consult then there would be a - potentially a dispute arising over the application of the agreement. But what the SDA failed to do here - - -

PN71

SENIOR DEPUTY PRESIDENT WATSON: Why is (a) different in that sense if there is a dispute as to failure to abide by all relevant occupational health and safety legislation? Well, why is that in character different from a failure to confer in a manner required by the agreement?

PN72

DR SMITH: Because it is, in my submission, the intention of that clause, is to simply state that the parties are committing to comply with something outside of the agreement. So the dispute about whether they are doing that - it is not a dispute arising out of the application of this agreement but a dispute arising under occupational health and safety legislation. There is a set of procedures. I refer in particular - I am sure the members will be aware of the occupational health and safety issue resolution regulations in Victoria which would apply.

PN73

And so what we are saying is it is demonstrably different from those other obligations because it has not created an independent obligation under this agreement. It is simply saying we will comply with some obligations that we have elsewhere.

PN74

SENIOR DEPUTY PRESIDENT WATSON: Well, what about provision which says the parties will abide by a relevant provision in the award? Does that bring a breach of that obligation within the scope of the dispute settling procedure of the agreement or not?

[2.35pm]

PN75

DR SMITH: It is starting to get a bit closer to what might - that you might expect the parties actually intended. That might be the case because it is dealing with an obligation to comply with something which is part of the - it is in industrial instruments under the same legislative scheme, that is under the Workplace Relations Act. I am not conceding it, but I am saying it is quite different to saying we will comply with something which is completely separate to the scheme, and I take issue also with the analogy drawn by my friend in relation to commitment to comply with equal opportunity legislation. I think it stands in the same situation as this commitment.

PN76

SENIOR DEPUTY PRESIDENT WATSON: Why would a separate legislative scheme be of significance if it is simply a matter of containing and creating an obligation within the agreement for a matter in respect to which there exists a prevailing obligation, whether by award or by legislation or whatever?

PN77

DR SMITH: Well, this reasonably, the Commission is given very, very broad special powers in relation to LW disputes and they should exercise those powers cautiously and only when it is clear that the parties have intended that that jurisdiction has been given to the Commission, and I simply say that that is not the case here. If you had asked the parties, "Did you intend this to be the result of agreement to this clause?", they would have said no. What we are saying is we agree to abide by that legislation and if there are disputes about whether we have done that, then there a whole separate dispute resolution procedures under that scheme.

PN78

But we all know about that we expect to be applied to those disputes, whereas - and I would say that the effect of STO's argument is that we have agreed to incorporate that scheme into this agreement. How else could we be prosecuted for a breach of the obligation as put by Ms Gooley. And with respect the client hadn't agreed to incorporate that whole scheme. They have agreed to abide by that which is different to incorporating it.

PN79

SENIOR DEPUTY PRESIDENT KAUFMAN: Dr Smith, do you draw any distinction between a situation where a party clearly refuses to abide by an agreement and is in breach of an agreement, to a situation where a party says that the way in which a particular clause works is a and the other side says it is b? For example, in clause 2.6(c) for instance, it requires a consultative process to be established. Would you draw any distinction between Big W saying, "We are not going to provide it but we are not going to establish a consultative process", and a situation where the consultative process is suggested and there is a dispute between Big W and the SDA about the process? Would they both be disputes about the application of the agreement?

PN80

DR SMITH: A dispute about a refusal to consult, yes, would be a dispute arising out of the application of disagreement, but that wouldn't give the Commission the jurisdiction to them impose a new substantive obligation which is not contained in this agreement. In my submissions I draw an analogy which I think is the same issue as your Honour is raising where, for instance, there might be a clause about a process of consultation for manning levels. This is paragraph 25 of the written submissions, and commonly agreements do contain clauses about - sometimes they contain substantive clauses about manning levels, sometimes just a process of consultation about manning levels, and what we would say is if the particular clause in question reserves the right to management to decide that the actual manning levels, a claim by the union that the Commission had jurisdiction under LW to arbitrate the manning levels, would be outside jurisdiction, because it is not a dispute over the application of the agreement, whereas a claim that hadn't been properly consulted or had refused to consult, would be such a dispute.

PN81

Now this was not put to Commissioner Eames in terms that Big W had not abided by, the relevant legislation. I think that is taking it too far. So even if I am wrong about all of that, it is not put on that basis, it was put that there had been a process as encouraged by Commissioner Graham that the parties go away and consult about it and obtain the service of an independent consultant, but it was really brought as a claim about a dispute over the provisions of the team manager and storeworkers. It was not suggested - there is no evidence before the Commission that the company had breached its obligations - its substantive obligations under the relevant occupational health and safety legislation.

PN82

Now just in answer to Commissioner Foggo's question earlier about why we are here. First of all exhibit R1 in the material before Commissioner Eames, which isn't in the folder but it set out a minute of agreement between the SDA and Big W. I might read it in its entirety, I don't have a copy. It says:

PN83

Big W reserves its rights to pursue defending this application if required to reserve its rights ...(reads)... and is not as a part of the dispute resolution under the agreement.

PN84

Now subsequently the consultant was engaged and delivered a report and subsequently then Big W wrote to the SDA in the following terms. This is a letter dated 1 July 2002. I don't know if Ms Gooley has seen it. It is the first time I have seen it today. I will just read it out. I can provide the Commission with a copy if it desires. It is to the SDA Victorian Branch from Ms Leilia McMahon in that she is employee relations manager for Big W. It says:

PN85

Big W has considered the report assessment of anti-fatigue matting for potential use ...(reads)... In summary Big W does not accept the recommendations of the report.

PN86

That is the answer.

PN87

COMMISSIONER FOGGO: So if we took your submissions in relation to this, if there was a dispute over an element of that being occupational health and safety, that would be dealt with under the steps.

PN88

DR SMITH: Yes, the Occupational Health and Safety Issue Resolution Regulations. It is the appropriate way that disputes over occupational health and safety in Victoria should be dealt with. It is not suggesting that the matter is not going to be resolved or that there is no process of resolution, it is saying there is a process properly adapted and put in place for dealing with this type of dispute, and the Commission should be loath to incorporate that ..... process into a certified agreement.

PN89

SENIOR DEPUTY PRESIDENT WATSON: Well, it is not a question of why the Commission incorporates, it is a question of what the parties have incorporated as the role of the Commission.

PN90

DR SMITH: Yes, I accept that. If I can rephrase it, the Commission should be loathe to accept the parties have agreed to that unless it is very clear and we say it is not clear at all.

PN91

COMMISSIONER FOGGO: The parties agree to some very unusual things though.

PN92

DR SMITH: That is true. That is true. When I am drafting the agreements I try to make it very clear what they have actually agreed to. I didn't draft this agreement.

PN93

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, that brings me to ask, what did they agree to when they empowered the Commission to determine the dispute, if they didn't envisage the Commission exercising some sort of coercive powers and I might call them arbitrarial powers.

PN94

DR SMITH: I make it clear in the submissions that I don't believe it is necessary for the bench to determine this issue, if it accepts the primary findings of Commissioner Eames.

PN95

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but if we don't we have to determine it.

PN96

DR SMITH: Pardon?

PN97

SENIOR DEPUTY PRESIDENT KAUFMAN: But if we don't accept the primary findings do you press those submissions?

PN98

DR SMITH: Yes, I do, I do. I accept that - - -

PN99

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, you will need to persuade me, Dr Smith.

PN100

DR SMITH: Yes, I accept that it is against the weight of current Commission thinking, but there is always an opportunity for the Commission to relook at these things. I have always been of the view that if the Commission is to accept that it has the power to arbitrate the matter, then that power should be unambiguously given to the Commission, and it is very easy for the parties to do that and you see it in many agreements. Agreements say the Commission, given the power to conciliate and/or arbitrate, and then goes on to say that the parties agree to abide by the outcome of the Commission decision. That is not what these words say and - - -

PN101

SENIOR DEPUTY PRESIDENT KAUFMAN: Aren't they a shorthand for that, Dr Smith?

PN102

DR SMITH: No, I don't necessarily accept that. The dictionary definitions of determine are looked at a number, are not - they simply refer to a matter being finalised effectively. I think the - I should go back to the submissions.

PN103

SENIOR DEPUTY PRESIDENT WATSON: Well, finalisation would require to use the approach of Senior Deputy President Duncan, ability to utilise whatever matters - whatever processes are required, including arbitration, should that be necessary to bring about finality.

PN104

DR SMITH: It could include a power to arbitrate, but it doesn't necessarily.

PN105

SENIOR DEPUTY PRESIDENT KAUFMAN: It may not be necessary to arbitrate. If the matter is resolved by conciliation, then arbitration is not necessary, but how does one determine that - - -

PN106

SENIOR DEPUTY PRESIDENT WATSON: To finality.

PN107

SENIOR DEPUTY PRESIDENT KAUFMAN: To finality, if a meeting of the minds can't be achieved by persuasion?

PN108

DR SMITH: Well, I come back to my primary point that one method may well be to arbitrate but it seems to me that the parties may not have intended that part of it to be conferred on the Commission. It simply - - -

PN109

COMMISSIONER FOGGO: What does your client - how does your client view the final step in the dispute resolution procedure in this agreement, the extant agreement?

PN110

DR SMITH: Well, it hopes that the matter will have been determined, finished.

PN111

COMMISSIONER FOGGO: Settled. Finalised.

PN112

DR SMITH: Settled, settled, indeed. I mean there are different ways of determining matters and - - -

PN113

SENIOR DEPUTY PRESIDENT WATSON: Yes, but absent agreement for determination, as you define it, finality, can't be achieved.

PN114

DR SMITH: But it begs the question, for determination by what means? It doesn't actually say by what means and the point I am - - -

PN115

SENIOR DEPUTY PRESIDENT KAUFMAN: Doesn't that leave the means open?

PN116

DR SMITH: Well, the - - -

PN117

SENIOR DEPUTY PRESIDENT WATSON: Well, determination is a little different from resolution in the - - -

PN118

DR SMITH: It may and it may not. The point I am making is a simple one, that it is very easy for the parties to make this clear to the Commission by words - there are words that about 50 per cent of the agreement certified by this Commission include, that is the power to conciliate and arbitrate and I am aware that some members of the Commission, when they certify an agreement will say, if there is an ambiguous clause like this, and I say it is clearly ambiguous, they will say, "Now what do you actually mean by this? Do you mean the Commission has the power to arbitrate"?

PN119

SENIOR DEPUTY PRESIDENT WATSON: I think that is done as much to avoid this sort of debate at a later stage than anything else.

PN120

DR SMITH: Indeed, indeed.

PN121

SENIOR DEPUTY PRESIDENT WATSON: It doesn't necessarily mean there is an ambiguity.

PN122

DR SMITH: Exactly. It doesn't necessarily mean - the point I am making is that - and I have probably said it too many times, but I will say it one more time - is that there is a degree of ambiguity and uncertainty about what the parties intended by using words like defer - sorry, determine or refer to the Commission or their decision and - - - f

PN123

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but surely there is a distinction between those two terms and the sort of term that leads to an uncertainty, the clear uncertainty being refer the matter to the Commission. And then one asks the question, "Well, what do you intend to happen once it gets to the Commission"? If the parties put in words like "for resolution, for determination", it is pretty clear isn't it, Dr Smith, that the Commission can use whatever it takes to resolve the matter, to determine the matter?

PN124

DR SMITH: In the main part I am not convinced that it actually - that the words "to refer a matter to the Commission", takes the matter any further than for resolution. Why do you refer it to the Commission if you don't want it to be resolved in some way? What I am saying is if you want to give the power to the Commission to arbitrate, you should say so.

PN125

COMMISSIONER FOGGO: So do I take it that was your long hand way of responding to my question that your client doesn't want the Commission to do anything, because it doesn't have those words?

PN126

DR SMITH: In this particular matter that is correct, yes.

PN127

SENIOR DEPUTY PRESIDENT WATSON: Well, it goes beyond this particular matter, doesn't it?

PN128

COMMISSIONER FOGGO: In any matter.

PN129

DR SMITH: In any matter, that is right.

PN130

SENIOR DEPUTY PRESIDENT WATSON: Well, I don't suppose anything you said on transcript as to what this clause means. Is this one of the matters where a member did say, "What do you mean by that"?

PN131

DR SMITH: No, I could find out and if in fact something was said, it should be put to the bench.

PN132

SENIOR DEPUTY PRESIDENT WATSON: Yes, I mean that did occur in a matter before SDP Duncan. The employer in that case, unsolicited, assured the Commission that workers had recourse to arbitration within the Commission.

PN133

DR SMITH: Indeed and I think the fact that that happened supports my argument.

PN134

SENIOR DEPUTY PRESIDENT WATSON: Well, the employer in the appeal in that matter argued that no regard should have been had for that position.

PN135

DR SMITH: Yes, well I think that is a bit difficult to sustain. But what we say is this is a matter that the Commission only needs to determine - that word again - if we fall down on our first primary argument.

PN136

SENIOR DEPUTY PRESIDENT WATSON: Very well. Thank you. Ms Gooley?

PN137

MS GOOLEY: Yes, just briefly in reply, your Honours and Commissioner. 1, in relation to the minutes that Dr Smith read out, I would just indicate that I am instructed that that was not agreed to by my clients, but that is not relevant really to the matters to be determined before you. I just wanted to make this one point about why having an occupational health and safety clause in your certified agreement makes it significantly different to the Occupational Health and Safety Act, because what it does is it brings the union in. See under the Occupational Health and Safety Act there are obligations on employers, there are obligations on employees, the power to prosecute lies with inspectors.

PN138

By putting occupational health and safety as part of a certified agreement, it makes it an issue between the parties to the agreement which are the union, the employer and the employees, and it makes disputes over those matters, matters in which the union can be involved as as party principal, and that is a significant difference between the provisions under the Occupational Health and Safety Act. It says that the employer and the unions reach an agreement about obligations in terms of occupational health and safety and disputes about those matters.

PN139

There are procedures under the Occupational Health and Safety Legislation, but the Act in particular provides that, for example, under 48(1) of the Act:

PN140

Proceedings for an offence against this Act may be brought by the authority or an inspector.

PN141

By including occupational health and safety in the agreement, it has become part of the industrial landscape between the parties and it provides therefore that disputes over those matters can be resolved in an industrial context in which the union is party principal, and I think that is a significant addition to the inclusion of such a thing in a certified agreement.

PN142

SENIOR DEPUTY PRESIDENT KAUFMAN: Don't clauses 2.6(a) and (b) really, by way of preamble to the obligations that then are placed on the parties and in particular Big W by (c), (d) and (b) and (e)?

PN143

MS GOOLEY: No, your Honour. What (a) says is - we are committed to achieving a healthy and safe workplace. How are they to do that? By abiding by all relevant occupational health and safety legislation. (a) contains an obligation. The parties have a commitment and how are they going to ensure that they comply with that commitment? They are going to do that by abiding by all relevant health and safety legislation. So it is not just a commitment, it is an obligation, and if they fail to do it then there are consequences under the Workplace Relations Act and what these parties did was, in addition, empowered this Commission to settle disputes over the application of this agreement by arbitration and that includes the obligations under clause 2.6(a), it is not a preamble to the rest.

PN144

SENIOR DEPUTY PRESIDENT KAUFMAN: So does the Commission under this clause have the requirement then to ascertain whether or not the occupational health and safety legislation has been complied with? Is that what is does?

PN145

MS GOOLEY: It may have to do that as a step in resolving the dispute if there is no other - - -

PN146

SENIOR DEPUTY PRESIDENT WATSON: Yes, we will reserve our decision in the appeal and now adjourn.

ADJOURNED INDEFINITELY [2.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SUBMISSIONS OF MORRIS BLACKBURN CASHMAN ON BEHALF OF APPELLANT PN4
EXHIBIT #R1 SUBMISSIONS OF CLAYTON UTZ ON BEHALF OF BIG W PN4