C2002/2266, Transcript of Proceedings [2002] AIRCTrans 4429 (11 November 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 918962) RE APPLICATION TO STOP OR
PREVENT INDUSTRIAL ACTION

SYDNEY

10.04 AM, WEDNESDAY, 23 OCTOBER 2002

Continued from 27.8.02

PN422

SENIOR DEPUTY PRESIDENT MARSH: Good morning. No change in appearances. I guess it's over to you, Mr Batt.

PN423

MR BATT: I feared that may be the case.

PN424

SENIOR DEPUTY PRESIDENT MARSH: Can I thank the parties for the written submissions? They have been most useful and you can proceed on the basis obviously that we have read them.

PN425

MR BATT: If your Honour pleases. Could I take the Commission then first to the special case itself briefly? What I propose to do, subject to the Commission's convenience is to address the Commission briefly on the content of the special case, then go briefly to Hamzy and just point to what the Minister would submit are the salient aspects from that decision for present purposes. Then emphasis certain points in the written submissions filed for the Minister which the Commission has already had an opportunity to consider and then turn to the submissions filed by the CFMEU, reserving perhaps the right to amplify on any of them after my learned friend, Mr Slevin, has addressed the Commission.

PN426

SENIOR DEPUTY PRESIDENT MARSH: Very well. Do you want the special case marked as an exhibit. I don't seem to have been marking.

PN427

MR BATT: I beg your pardon.

PN428

SENIOR DEPUTY PRESIDENT MARSH: I don't seem to have been marking written submissions, I don't think. Do you want the special case marked as an exhibit, that document?

PN429

MR BATT: That might be desirable.

PN430

SENIOR DEPUTY PRESIDENT MARSH: Yes, I think it might be.

EXHIBIT #B1 SPECIAL CASE DOCUMENT

PN431

MR BATT: As the Commissioner was saying the special case is at 19 paragraphs the question formulated for referral is at paragraph 19. Of the preceding paragraphs some really are recounting the procedural history so that a court seized of the matter was apprised of it but really the salient facts which are set out in it are at paragraphs 3 to 8 and it is at the heart of the Minister's submission in dealing with Hamzy insofar as that case needs to be dealt with, that it is only these very limited and very objectively established facts at paragraphs 3 to 8 that are the relevant facts which are required to be before the Court under section 46 on a reference to the Court. If the Commission pleases, those facts are nothing more than these.

PN432

Firstly, at paragraph 3, the statement of those who are parties to the Boulder agreement which will be annexed as annexure A. Secondly, at paragraph 4, the fact of certification of the agreement and the date of that certification. Next, at paragraph 5, the commencement date of operation of the agreement and then critically at paragraph 6, the nominal expiry date of the agreement and finally at paragraphs 7 and 8, the objectively unarguable facts as to the initiation of bargaining period and the notification of the intention to take industrial action and I suppose one should add at paragraph 9 the initiation of proceedings before the Commission.

PN433

SENIOR DEPUTY PRESIDENT MARSH: So what do you say, Mr Batt, is the parallel or the analogy in Hamzy where the Full Bench of the Court said that the Commission should have found that Mr Hamzy, whether or not he was a casual? What is the parallel finding of that? Would that be those paragraphs you've just taken us to?

PN434

MR BATT: Your Honour, the Minister would in fact put it differently and say that it's the very lack of a parallel fact requiring to be found in the present case, but not found, which relevantly and determinatively distinguishes this case from Hamzy because in Hamzy a question sought to be referred was the validity of a regulation.

PN435

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN436

MR BATT: That regulation related to a person being a casual employee. If a person was not a casual employee the regulation was simply of no relevance to the case. Now, whilst the Commissioner had found that the relevant person was a casual employee, that was the subject of a ground of appeal and the Full Bench in Hamzy hadn't made any finding about that issue. It was in dispute between the parties and at paragraph 23 in Hamzy the Court recited that fact was, as it were, in issue. So in Hamzy you had a situation where there was a fact not determined and not stated for the Court which was a fact necessary to be established before the question would even arise and the nub of the Minister's submissions here, if I can almost jump to the end, is that when one looks at the question of paragraph 19 there's no equivalent.

PN437

The question is simply, on the proper interpretation of the Act, does the fact that at the relevant dates the Boulder agreement had not reached its nominal expiry date mean that the industrial action could not be and was not protected action? In other words, there can be no doubt that the Boulder agreement is on foot. It hasn't reached its nominal expiry date. The question simply says in those circumstances, which are established beyond doubt, is it the case that on the law there could not be protected action. Does that fact of itself lead to that conclusion?

PN438

SENIOR DEPUTY PRESIDENT MARSH: Do you go directly to the interpretation of the section of the Act? You don't need the fact-finding on which to then test the question in Hamzy being the validity of the regulations. That's what distinguishes this matter in the Minister's view.

PN439

MR BATT: Yes, because the facts that are established here, your Honour, give rise to the question.

PN440

SENIOR DEPUTY PRESIDENT MARSH: I see, yes.

PN441

MR BATT: Given what the question is. The simple facts at paragraphs 3 to 8 give rise to the question. Once one has the question, there are no facts relevant for its resolution because it's purely a matter of statutory construction.

PN442

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN443

MR BATT: In Hamzy there was a fact not yet established which, depending on its establishment, would obviate entirely the question. Whereas here, when one looks at the legal analysis that is to be followed the very first step, and it arises as soon as there is a certified agreement not yet at its nominal expiry date, is whether that fact of itself disposes of any further issue about protected action. So that issues such as whether provision for fatigue management break and trip time are dealing with the same issue within the notions of Emwest. It simply would not arise, depending on the answer to this question.

PN444

One doesn't need to know a thing about those matters, both to give rise to this question and to be able to answer it and can I refer the Commission in that regard to the written submissions filed for the Minister? This issue is picked up at paragraphs 23 and following. If the Commission has that passage the Commission will see first that there is a reference to the base of authority which talks about whether the question necessarily enters into the determination of the matter on the fact stated or whether it only may arise.

PN445

Then in paragraph 24 it is submitted that the question is essential for resolution of the appeal and is logically and legally the first step in any consideration of how the section operates. Indeed in the words of Hamzy but in contrast to that case the question does pertain to an issue that actually exists. Now, those are the initial submissions but then the point I was attempting to elaborate in answer to your Honour's questions is addressed squarely. Hamzy, we say, stands in complete contrast. We set out the nature of the issues there and in paragraph 25 at the end, conclude:

PN446

Unless and until Mr Hamzy was determined to be a casual employee, the question did not arise.

PN447

Then this is the nub of the contrast. In the present case the question does necessarily arise. Section 170MN and its interpretation are unavoidably and centrally an issue in this proceeding and the question is the very first step in application of the section and then the contrast, your Honour:

PN448

It is not the case that by its terms and in contrast to Hamzy that section 170MN(1) only applies in certain factual circumstances.

PN449

It is not yet known whether the present matter involves those circumstances. In Hamzy there was a fact which had to exist before the issue arose. In the present case section 170MN, on any view, is live in the proceedings, if I can put it casually. My learned friend, Mr Slevin, submits that things are a little different because he says it's a section 127 case but plainly section 170MN is going to bear, perhaps decisively, but squarely on the section 127 issue and the CFMEUs own notice of appeal raises a number of grounds about section 170MN and then in the section on why the matter is one of public interest which warrants leave relies, if not entirely then essentially, upon the very issues of how section 170MN is to be interpreted. If I can perhaps at that juncture - - -

PN450

SENIOR DEPUTY PRESIDENT MARSH: Yes, I'm sorry I interrupted you, Mr Batt.

PN451

MR BATT: No, no, I wasn't meaning to go back to the start. I was going to just take the Commission to the notice of appeal just to illustrate that point more particularly. In the notice of appeal at paragraph 6 the union states:

PN452

The matter is of such importance that it is in the public interest that leave to appeal be granted.

PN453

Then there are four particulars:

PN454

(a) the appeal raises questions about the interaction of section 127 and protects action under the Act; (b) the appeal raises issues concerning the jurisdiction of the Commission and the proper application of the authority in Emwest; and (c) the appeal raises important issues concerning the proper exercise of the Commission's powers under the Act.

PN455

In the Minister's submissions all of those matters simply reinforce the submission of the Minister that section 170MN on any view is in issue and is the pivotal position provision for this proceeding. Now, once one has that as a starting point, one can proceed with the submission in paragraph 26 of the written outline. The section is in issue in the proceeding and yet, unlike in Hamzy there is no subsequent factual matter which determines the application of the provision, or which needs to be known at this juncture. There is no fact which needs to be determined before it's known whether the matters to which the section is directed are actually in existence.

PN456

SENIOR DEPUTY PRESIDENT MARSH: It doesn't matter that there is no longer any industrial unrest or disputation, to put it more precisely.

PN457

MR BATT: No, not in the Minister's submission because there is still a matter before the Commission which requires its resolution. Certainly my learned friend, Mr Hatcher, raises a point of that nature.

PN458

SENIOR DEPUTY PRESIDENT MARSH: Public interest on that point, yes.

PN459

MR BATT: But this was the subject of brief submission by me last time, your Honour. The Minister's position was he doesn't wish to make submissions on the matters inter partes is that the date expressed in the learned Commissioner's order isn't such as to mean that there is no issue now which would require the Commission Full Bench's attention. In paragraph 27 of the outline I elaborate upon the critical distinction and submit that the question formulated goes to the basic construction of the section. It arises as soon as industrial action was proposed to be taken and again, there is no further issue of fact which, if answered in a certain way, would mean that the question does not arise.

PN460

It's a difficult notion to express but that's really the shortest way in which we can express it. It doesn't matter what is found about trip breaks and fatigue management breaks because the issue has already arisen and it arises on the facts set out in paragraphs 3 to 8 of the special case, about which there could be no argument. Then in my respectful submission, an important consideration set out in the next paragraph. The position is actually to the reverse of Hamzy because the question formulated in the special case must be answered before one can properly even get to a consideration of the issues involving trip time and fatigue management breaks or other issues concerning the section because it's the very essence of the question that if answered in a certain way it puts paid to any further debate about protected action.

PN461

If the question is answered in a yes, in the affirmative, then that of itself means that the action could not be and was not protected action and everything else falls away. So that for the Full Bench in this matter to embark upon a consideration and a determination of the fatigue management and trip time issues or other issues concerning the section would in fact, in the Minister's respectful submission, be a course that should not be followed. It would be to consider matters which, depending on the answer to this question, would never arise. Consideration of them would in fact be erroneous as a matter of law if the question is answered in the affirmative because the time of the Commission, the parties' time would be occupied by debating and resolving an issue which in fact on the proper interpretation of the Act would not even be an issue that ever arises.

PN462

Indeed, it follows from that an affirmative answer to the question would of itself dispose of the grounds of appeal in this case dealing with section 170MN(1) because if the question is answered yes then those other issues do not arise. In a pre-emptive fashion that issue is pursued in paragraph 29, if the Commission pleases, where it's put that one doesn't start at the other end and say: well, we'll look at the fatigue management break and trip time issues and depending upon how we determine them we might in any event have decided that there wasn't protected action. So let's do that because on one answer of those issues we will deal with this issue anyway.

PN463

But that can't be the proper way to proceed in the Minister's submission because it would be to address issues which, depending on the answer to this logically and legally anterior question, don't arise and as a matter of law can't arise. In that regard the position stands in contrast to Hamzy again where the Court had to return the question as inappropriate to answer because as the relevant questions and as the relevant facts were different, the issue did need to be determined. But here the question arises, the question in the special case, arises before. It arises separately from and it arises without any determination of the issue of the interaction of fatigue management breaks and trip time.

PN464

To some degree I have really covered the essence of the submissions I wanted to put to the Commission on the question of whether the question is a matter arising or a question arising in the matter. Can I, having done that, just go back a little, canvas some other particular points I wanted to raise and then deal with the other issue which Hamzy discusses, which is the setting out of the relevant facts because one can say Hamzy is dealing with two issues and I've really addressed your Honours on the second of them as to whether the question arises.

PN465

As to the special case, the Minister does note that leaving aside the general issues which the union raises there has been no issue taken by the parties as to the particular matters set out in the special case, the drafting of it, the workability of it at a level of wording. Now, the Commission's directions following the last occasion on which this matter was before the Commission made it clear in any event that the form of the special case to be filed, and which has been filed under the directions made, isn't as it were the last word.

PN466

The Commission's directions made it clear that there would still be the consultation between the parties, or of the parties, and the settling of the document by the Commission which Order 50 mandates and I don't make the point which I just advanced to differ from that motion but simply to point out that as a document, as a document which is workable and clear there appears to be no dispute as to the particular matters. Of course the union makes submissions at a general level opposing both the document and the reference and I don't wish to say otherwise.

PN467

COMMISSIONER HOFFMAN: Mr Batt, while you indicate that the consultation process would have to occur assuming that the special case went ahead, equally in accordance with Order 50 Rule 2(a) the special case document would need to take care of the element of address for service, etcetera, which isn't, I notice, in the draft, unless I'm missing something.

PN468

MR BATT: All I really wanted to say was that in consideration of whether the referral which the Minister has sought is procedurally and mechanically workable and proper, which is the issue that the Commission has quite properly raised having reference to Hamzy, I merely make almost the ancillary point that there appears to be no difficulty that a form of wording which is free of contention in itself can be prepared between the parties and settled by the Commission.

PN469

It's of course a separate question which is for debate today whether a special case of this form is free of the difficulties in Hamzy and the Minister of course submits it is but if the Commission is with the Minister on that point it appears that, subject to that consultation process and to settling by the Commission, there doesn't appear to be some inalienable or inherent difficulty in the preparation of a form of words.

PN470

Could I also at this juncture draw support from the position of the company, my learned friend, Mr Hatcher. Of course he submits that leave to appeal ought not be granted but if it is, then he and his client supports the reference and it would seem necessarily to follow from that, save the difficulties in Hamzy, might be applicable here. There is in some relevance in my submission having regard to aspects of the union's written submissions dealing with the procedural implications of a reference in this matter.

PN471

It must in my submission be of relevance and importance that one of the parties actually supports the relevance subject to the question of whether leave to appeal is granted. Could I turn then to what I might call the aspect of Hamzy which is its consideration of whether the requirements of Order 50 have been complied with and in particular whether the relevant special case describes all of the relevant facts. This is a separate issue to the question of whether the relevant issue arises and I dealt with this in the written submissions at paragraphs 8 to 18.

PN472

The position can be put shortly. In the present case, the position is quite the reverse of that in Hamzy. Hamzy was almost a remarkable case because there was no special case. There was no statement of facts. As the court said in its judgment, the court was presented only with a list of questions. So with respect one can perceive the difficulties that it immediately considered that it faced. In the present case, the Minister would submit that not only here would there clearly be a special case that has been prepared subject to finalisation but all of the relevant facts which would need to be before the court are set out in it.

PN473

Order 50, it should be noted, makes only short provision on this matter. It merely requires that the special case state the facts concisely. Now, as Hamzy makes clear, that is the relevant facts for the question. One does not need to engage in a discourse of some other matters and other facts. As it has been put in the written submissions, that points inexorably to the position that what facts must be stated depends upon the questioning and one can't just transpose in Hamzy what the court thought should have been stated in some fashion to the present case.

PN474

One has to look at the question and see, well, what would the court need to know for certain before it could address that question. What would need to be established before it, given that it cannot decide a fact, although it can draw inferences, and the Minister simply submits that given the nature of the question, the facts which have to be stated are extremely limited and extremely basis. All of them are in a special case. As I've stated in opening to the Commission, they are no more than the existence of the agreement, the parties, the dates to it and the dates applicable to it and the arising of intended industrial action.

PN475

So in that regard, Hamzy is quite distinguishable. In particular of course, and this is addressed in paragraphs 8 and 19 or rather paragraph 18 of the written submissions, the question does not involve in any way the factual issues bearing upon fatigue management breaks and trip time. In any event, the Minister would submit that resolution of those matters is in fact one of - or a question of law involves the analysis of facts and the drawing of legal conclusions from them but be that as it may, that issue does not matter.

PN476

The critical consideration is that having regard to the question, one does not get to those issues, one does not need to know about them. The non-inclusion of them in the special case is therefore not only not problematic but it is proper. Then importantly in paragraph 19, it is something that I've touched on already, the facts that are set out in the special case and which are relevant which do need to be there are all not contentious. There could not be debate about them.

PN477

Again in that regard, Hamzy is to be compared and I give the reference relevant on that point as being paragraph 19 of Hamzy. Now, if one were to follow my written submissions further from there, one would come back into the issue I've already addressed the Commission on being that the question does arise. For completeness I should refer briefly to the other requirement which Hamzy highlighted which is that the question must be one of law. Paragraph 21 of the submissions deals with that and there could be no argument in the Minister's submission that the question formulated in the special case is one of law and indeed there has been no argument from any of the parties.

PN478

So whilst that is a requirement, it is not one that is of any content or moment for the present matter. Now, as to the question of whether the issue in the special case arises in this matter, could I also just make reference to paragraphs 31 and 32 of the written submissions which set out the supplementary that by no means are important considerations that in the present case the Minister is now a party to the proceeding, having intervened at the level of the Full Bench pursuant to a power which only to mention power which didn't apply below.

PN479

Having intervened in the Full Bench once he could under the relevant provision, the Minister is now a party to the proceeding and has directly and argued the question. The parties have been engaged in argument about the question now on both today and the previous occasion that the matter was before the Full Bench. So that any argument that the question does not arise has to be taken back to a level of practicality and not just theory. Taken back to a level of practicality and not just theory, plainly section 170MN is in issue.

PN480

Plainly when there is protected action is in issue, the Minister has raised these points. If the question that has been formulated is answered in the affirmative, all debate about protected action in this matter will be dealt with decisively as a matter of law. When those matters are borne in mind, in my submission it becomes difficult to say that this is not a question arising in the matter. Then in paragraph 32, reference is made that the fact that of course before Commissioner Roberts the applicability of the section was plainly an issue although it was analysed on a particular basis by reference to Emwest.

PN481

In that regard, I would also point to the written submission prepared for the company when this matter was first before the Full Bench which at paragraph 12, and I don't suggest the Commission turn to it but at paragraph 12 of that outline, the company stated that Kenny J and Emwest found the form of construction. That is one of the two options that she had identified to be correct. Bulga respectively submits her Honour erred in so finding and urges the latter construction. Then of course for the purposes of the appeal, Bulga proceeded upon the construction profit by her Honour.

PN482

That was the submission of the company previously and I draw attention to it simply to emphasise the motion that these matters are an issue. They do arise to consider that they do not would be in my submission to ignore both the legality clause so the reality of the situation. I'm in the Commission's hands whether it would be of most assistance for me to address the Commission on issues raised by the union in its written outline now or respond to them following submissions from my learned friend, Mr Slevin. It might be - well, I'm in the Commission's hands. There is quite a bit which is raised in that outline which is on the same points as I've raised myself but if the Commission would wish to hear me in response, then I would be guided by that.

PN483

SENIOR DEPUTY PRESIDENT MARSH: We really don't mind so long as we hear your submissions at some stage.

PN484

MR BATT: Well, I came up here to talk, your Honour, so perhaps I will talk now. If that would suit the Commission?

PN485

SENIOR DEPUTY PRESIDENT MARSH: That might be more convenient for Mr Slevin too to hear you now.

PN486

MR BATT: Yes, and perhaps if there's anything further which he raises, I would simply address it in response.

PN487

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes.

PN488

MR BATT: If the Commission please, some aspects of the CFMEU's outline and particularly paragraphs 3 to 5 really at least by their terminology directed to the question of whether there should be a reference having regard to the discretionary considerations which have previously been identified but some of the matters raised there are really matters which stem from the Hamzy issue. So they need to be dealt with in the present context.

PN489

It may be most convenient for the Commission if I simply move through the document addressing the Commission on the points which arise from the Minister's position in relation to what is put.

PN490

SENIOR DEPUTY PRESIDENT MARSH: Yes, that would be very convenient.

PN491

MR BATT: So I start with paragraph 3. Now, quite correctly my learned friend set out some of the principles or the considerations which have been identified as bearing upon whether and how to exercise the undoubted discretion to refer. It must though be borne in mind that whilst those matters have been identified as matters of possible relevance, ultimately it is a discretion in the Commission to be exercised on the facts of the case and one can't be, in my respectful submission, constrained or hamstrung by a list of particular considerations that have previously been had regard to.

PN492

In any event, the Minister would submit that in regard to these considerations if anything would favour the question of reference. The fundamental importance of the issue for the determination of the proceeding, the Minister would submit clearly having regard to what is before the Commission, before the Full Bench, in the appeal and the application for leave be questions sought to be referred does raise a matter of fundamental importance.

PN493

The uncertainty of the law on the matters, well, Emwest has been decided but as was submitted on the occasion that the matter was last before the Full Bench, Emwest must be open clearly to doubt, to plain doubt, and indeed the Minister would submit is clearly wrong. In those circumstances and where there is only before the Commission one single decision of one single judge, one does not have the certainty of law which in many cases there may be and which might affect whether to refer a question.

PN494

Indeed, as I advanced to the Commission in my earlier oral submissions, it is the very presence of Emwest which looked at in one way militates in favour of a reference. Were it not for Emwest in the Minister's submission, the legal position would be both plain and be to the contrary. Now, I don't wish to traverse upon the quite extension written and oral submissions advanced previously as to the difficulties and the error in Emwest but having regard to those submissions, the Minister puts that it is the very presence of Emwest which warrants a reference.

PN495

This is the first occasion that the Full Bench of this Commission has been faced with this issue. It will, the manner in which this matter is dealt with and resolved, will in my respectful submission be either decisive or highly relevant for the future treatment of the issue in the Commission. It is a Full Bench of the Commission which is seized of the matter, not a single Commissioner. In those circumstances, in my submission, there is uncertainty of the law which wants a reference.

PN496

Indeed, it is almost created by Emwest, were it not for Emwest the Commission would simply determine the point for itself and in my submission plainly to the contrary effect. The third consideration set out in subparagraph C is that it is preferable that there be a final determination of the legal questions before the Commission proceeds to deal with the merits of the appeal or in my submission that again would favour reference here. As to undue delay, first the company favours referral if the application for leave is granted.

PN497

Secondly, there's nothing to say that any delay would be undue and third, section 46 exists. The Commission is empowered to make a reference, it can't be the case that there would never be a reference because of implications of the timing. Of course a reference will mean that until the court has given its opinion, the Commission awaits the opinion but in circumstances where the power to refer is there, the undue delay point in my submission can't of itself really operate. There may be particular cases where the timing constraints are different.

PN498

Of course the Commission would often be faced with cases where a reference would cause real identifiable practical prejudice. That is not the case though just because of making a reference. In my submission, the present case does not have those particular features. Then of course too in E, the effective operation of the Commission should not be frustrated by legal manoeuvres of the parties, notwithstanding what is put on this issue below in the written submissions of the union.

PN499

The Minister would submit that that consideration is not at all applicable in the present case, especially when the company favours reference. The Minister has the power to intervene in the public interests. He has exercised that power on careful consideration and is putting submissions on what he respectfully considers to be an issue of real importance in the operation of the Act which requires to be ventilated. These are not legal manoeuvres to frustrate or prejudice the resolution of the matter between the parties.

PN500

I can't now recall, if the Commission please, whether it was Farnamore's, or another case, but one of the cases where the Commission has addressed the circumstances and the considerations for referral had really particular facts where one could see against the long history of the matter that the application for reference was a legal manoeuvre. That is not the case here, in my submission, and again like the delay point, a reference is not of itself a legal manoeuvre.

PN501

There is a power to refer. These considerations go to special circumstances which are not present in this matter. Having set out those factors, the written submissions of the union then, in paragraph 4, move to making submissions on them and related points. The issue in 4A I have dealt with briefly already. The submission of the Minister is that section 170MN is plainly bound up with section 127 because of the provisions of the Act. In particular 170MT(1), an order under section 127 does not apply to protected action.

PN502

So the actual power to make a 127 order isn't - the power to make it isn't precluded where there is protected action but the order does not apply. So of course whether the order would be made is going to turn fundamentally on whether the action is protected because if it is, the order would have no application and of course wouldn't be made. In turn, 170MN(1) determines in the circumstances that it concerns whether action is protected. So when one links those three provisions the ament that proceeding is a section 127 case.

PN503

It does not, in my submission, at a practical level wash and it does not mean that 170MN and the question for referral do not arise. They do, contrary to this paragraph - that is to say the question which has been sought to be referred - does determine the appeal insofar as it concerns protected action, if answered in the affirmative, and it does determine how section 170MN is to be applied and analysed, so it has determinative effect as regards those issues.

PN504

Paragraph 4(b) deals with the presence of Emwest and I've made submissions on that already today, but I would add the submission that this Commission and particularly this Full Bench, is not bound by the decision in Emwest. I advanced full submissions on that when the matter was previously before the Full Bench and written submissions also. Unless the Commission would be assisted by me elaborating the points made, I don't reiterate them, but the Minister does submit that this Full Bench is not bound by Emwest.

PN505

However, even if a contrary view were taken, the Minister would still submit that the question arises and that there should be a reference. Can I then address the Commission on paragraph 4(d) of the reason outlined. It is in fact not the case that Emwest has been appealed and that a decision is pending - and I don't draw an artificial procedure distinction in this regard. I draw an important distinction. Emwest has been the subject of an application for leave to appeal by a non-party, namely, the Australian Industry Group.

PN506

The parties in Emwest did not appeal. The application for leave to appeal is - it would be fair to say - hotly opposed on both standing issues and constitutional issues and the Full Court is still reserved some number of months later on whether even to give leave to appeal. So it is not the case that a decision of a Full Court in an appeal from Emwest is pending. It may very well be that leave is not granted, given the matters raised. In either event, there is no Full Court decision pending in an appeal with Emwest and if that leave to appeal is not granted, then, that is the end of Emwest.

PN507

Now, of course in the meantime Emwest stands, such as that may be taken to mean, but given what has been submitted to be the plain doubt as to its correctness and, indeed its error, and given that the Commission should strive to apply the law - and particularly the Act - the Minister submits that the mere presence of Emwest - and having regard to this present matter being before a Full Bench and Emwest being a single decision of a single Judge - does not either dispose of, or affect with any weight the application for reference.

PN508

As to Lee, I've dealt with that and I've already drawn the Commission's attention to the position taken by Bulga in its earlier outline of submissions. (f) is an important point. The union submits that the matter to be determined, which touches upon the question proposed to be referred, is the factual matter whether the present circumstances fit within Emwest, in terms of whether the relevant certified agreement dealt with the issue that was to be the subject of the industrial action.

PN509

Having regard to the question that is set out in the special case and the submissions I've already made, in fact, that is not the case at all. The question goes to legal issue, purely, which arises earlier. It is entirely divorced from those factual matters and that is, in fact, the reason why the Hamzy situation is of no applicability. The contention in (g) that the question may not arise in the matter as other grounds of appeal transcend the issue, does not bear upon - whether that may be the case or not does not determine or establish whether the question may arise. I won't take the Commission to it, but can I refer the Commission to the Judgment of Isaacs J in the Federated Seaman's case, which Hamzy relies upon.

PN510

In that case, Isaacs J talks about whether the question to be referred would determine the matter, or a stage of the matter. Reference here in relation to this paragraph too, to the notice of appeal, to which I've already taken the Commission is apposite. Having regard to the contents of that notice the submission made in subparagraph (g) is, in my contention, not able to be sustained. I have already dealt with paragraph (h), I don't address that further. It is simply not the case that the Minister is seeking to assist a position in any improper, or irregular means, can't be sustained.

PN511

So those are the points that the Minister would raise in response to the considerations addressed by the union at the commencement of its contentions. The contentions then turn to Hamzy itself. Much of what I have addressed already, is applicable to paragraphs 11 and following of the submissions of the union on Hamzy and to that extent I won't go over the same ground in addressing those paragraphs. I think I make these submissions. As to paragraph 12, it is not the case that the special case does not deal with the contested facts in the proceedings. I beg your pardon, it is the case that it does not, but it need not and it ought not.

PN512

Then, in paragraph 13, the union submits that because the Full Bench is not yet at the stage of determining whether the crib time provisions and the fatigue management break provisions under Emwest led to the action not being protected, the question of law sought to be referred has not arisen. The relevant words are: whether the question is one arising in the matter. The question to be referred does arise, and it arises regardless of the matters in factual dispute between the parties. Indeed, why would one decide these facts first when the legal question is anterior to it? It is that which would be an inappropriate way to proceed. Likewise, in relation to paragraph 14:

PN513

Resolution of the question to be referred is the critical first step in the whole issue of dealing with protected action.

PN514

As this paragraph acknowledges, protected action is an issue in the matter and the question when one has regard to its subject matter, is the necessary first step in dealing with the protected action issue. It said that:

PN515

Forming a view that the action was protected action, requires a consideration of whether the action was taken in support of a claim made during the bargaining period, which was for a condition of employment covered by the agreement.

PN516

Well, that is in my submission the whole point, depending upon the answer to the question to be referred. It is not necessary and it would be wrong to consider that issue. In paragraph 17, the union addresses the point concerning whether this Full Bench is bound by Emwest. I have dealt with that already and the Minister has a number of positions on it. The Full Bench is not bound. Even if it were bound, there could be a reference and, indeed, it is the presence of Emwest which warrants the reference, given the doubt which must arise as to Emwest.

PN517

In paragraph 18, your Honours and Mr Commissioner, it is submitted that, as I read it, this Full Bench should consider and form a view on whether and in what circumstances protected action can be taken during the nominal term of an agreement before it refers the question, and that it seems is submitted on the basis that it would provide the Court with a context for the referral. The Court in my respectful submission does not require a context. It requires the facts necessary to determine the question.

PN518

Yes, the special case does set out the procedural history to give the Court an understanding of how this matter comes to it. But what order 50 requires and what hands he shows the Court requires is enough factual material which is of an established nature to be able to answer the question. Indeed, why would the Commission decide these issues and then refer the question when you have a look at the nature of the question?

PN519

Then finally, in the union's contentions, there is a submission in effect that Emwest decides this issue so that even if it there were a reference to the Court, the doctrine of Staropasis would mean that the Court would simply, as it were, bounce the answer back by reference to Emwest because the Court, that is to say, a single Judge to which the reference was made would be bound. There are lengthy excerpts from the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton. If the Commission please, the Minister submits that there is a short answer to this point which is that a single judge of the Federal Court is not bound by a decision of another Judge of the Federal Court, in fact, quite plainly the position is to the reverse.

PN520

Yes, a single Judge will pay close attention and have regard to a decision of a fellow Judge but quite plainly and it happens repeatedly, a single Judge will depart from a decision of another Judge, whether by construing a statute differently or in some other regard. A Judge will do so when satisfied that the first decision, or the earlier decision is wrong. I will hand up to the Commission one example of that. One could find, the Minister would say, many, but I will hand up to the Commission, Martin v Tasmania Development and Resources and I will provide my friends with a copy.

PN521

I don't rely for my submission solely or just on this case, but I provide it as an example, it is a lengthy case concerning essentially termination of employment. Contract was relied upon and also section 52 of the Trades Practices Act as to misleading conduct and there arose an issue whether the relevant conduct was in trade and commerce as that section requires. It is a decision of Heerey J. If the Commission would turn to paragraph 71 at page 97 the Commission will see that his Honour sets out: the issue whether it can be said that the representations were made in trade or commerce.

PN522

He then, in paragraph 72, deals with the leading case that of Concrete Constructions decided by the High Court and then at paragraph 75 he having set out the general rule which Concrete Constructions establishes comes to consider its application in the context that was before his Honour. A similar issue had arisen in Barto v GPR Management Services and at paragraph 75 his Honour sets that out. He elaborates that in paragraph 76 and then in paragraph 77 his Honour, and without more, simply says: in any event, I would respectfully disagree with Wilcox J. Patrick and the other authorities referred to by his Honour were all before the decision of the High Court in Concrete Constructions and then his Honour goes on and takes a different view.

PN523

Now, indeed the lack of angst before his Honour followed his own view in difference to that of Wilcox J is notable but the point, in essence, is that his Honour was free to do that. It is an example and one can note that Wilcox J had decided a strike-out application so there is that particular feature, but I simply provide that to the Commission as an example of the single Judge departing from a decision of another single Judge. The case of Gorton v Repatriation Commission relied upon extensively in the union's submissions is fundamentally distinguishable because it concerns the circumstances in which a Full Court will depart from and not follow an applicable decision of another Full Court and as appears from paragraph 22 of the submissions on page 8, and the extract from Gorton which follows the thrust of the Court's analysis in Gorton was whether a Full Court of the Federal Court might reconsider or depart from another decision of the Full Court.

PN524

When one goes through the italicised extract, one will see repeated references to, for example, in paragraph 26 of the Gorton decisions set out halfway down page 8, the opening extract is set out that Allen's case involved a Court of five members having to consider whether an earlier Full Court decision be reconsidered. Then as one reads through the extract one sees repeatedly "Full Court" "Full Court". In my submission, there can be no doubt that Gorton concerns intermediate appellant Courts departing from earlier intermediate appellant Court decisions, and indeed the issues which Gorton discusses, set out in this extract, are issues that are peculiar to intermediate appellant Courts. Often it is said, for example, special leave to the High Court would be unavailable.

PN525

So an intermediate appellant Court decision represents effectively the last rung on the ladder. That is a consideration which is important for Gorton and the importance of that consideration appears from the extract, they are not considerations which apply to single Judges, the reasoning and decision in Gorton is not applicable to single Judges and as the authorities show there are many examples of single Judges not following another single Judge's decision. Of course, they pay it weight, but that is as far as it goes. So I make these points, if the Commission please, in answer to the proposition and the union's submissions that a referral ought not be made because the receiving Judge would be bound by Emwest, it is not the case.

PN526

There is a further consideration that section 416 of the Act provides for a single Judge to refer a matter to a Full Court. Now, that will be a matter for the single Judge and the Minister says nothing about that issue, but it might be that the Judge would adopt that approach. It is certainly available to the Judge, but whether or not the Judge does so, the Judge has power to decide the referred question on his own analysis or her own analysis. I note, in fact, that in Hamzy what occurred was that the Judge to which the matter was referred in turn referred the matter to a Full Court and it is for that reason that Hamzy, in fact, is a Full Court decision.

PN527

COMMISSIONER HOFFMAN: Could it not be the Chief Justice could also take that step?

PN528

MR BATT: Yes, I have to - certainly, Mr Commissioner, the Chief Justice has that power, I'm just checking whether in fact my learned friend, Mr Slevin, is suggesting that that is what occurred in this matter.

PN529

COMMISSIONER HOFFMAN: Well, again it would be a discretionary matter for the Chief Justice. I'm just simply saying, other than, as you say, the single Judge coming to a view themselves, the Chief Justice may well determine the matter before it even got to that single Judge.

PN530

MR BATT: Yes, that is quite right and in addition, it would then be open to the single Judge to take that course as well. So there are two routes by which that result could occur. Yes, I'm sorry - at paragraph 16 of Hamzy sets out that the Acting Chief Justice had directed the Full Court to exercise the jurisdiction. I think I was thrown because the name Beaumont and not Black appeared and I was taking to be that his Honour was referral Judge but in fact he was the Acting Chief Justice. In any event, section 416 provides that additional power.

PN531

In closing, then if the Commission please, for the reasons that are advanced in both the vision outline and - which I have advanced this morning, the minister submits that nothing in Hamzy, or otherwise, militates against referral or precludes referral. There was of course full argument about on the last occasion about the considerations bearing upon whether to refer and the Hamzy issue then arose because quite properly the Commission sought submissions as to whether the considerations there which had led the Court to hold the questions inappropriate to answer had applicability in this matter.

PN532

Without going over again the considerations bearing upon referral the minister submits that the Hamzy issues do not arise and in fact this case is at the entire other end of the spectrum. The minister also would submit that consideration of these matters cannot be divorced from the context in which they arise before this Full Bench. In particular, the importance of the issue, the very real effect it will have upon how this Commission, both at the Full Bench level and at the Single Commissioner level, will exercise its important power under section 127 of the Act.

PN533

The manner in which the Commission will exercise its powers under the Act more generally in future where issues of protected action arise, the fact that this is the first occasion on which the matter comes before a Full Bench and is now before it, and the plain doubt which is respectfully submitted to exist in relation to Emwest, indeed the error. Finally, I make a reference to paragraph 81 of Hamzy. Of course, what happened in Hamzy was that after the Court had decided that it was inappropriate to answer the referred question, another procedural course was followed which led to the matters being dealt with by the Court, in effect, an application that the proceeding would commence in the Court.

PN534

In paragraph 81, and I close with this observation, the Full Court said, or held that it was preferable to mark each of the questions inappropriate to answer but nonetheless acknowledging this Court's obligation to assist the Commission by answering questions of law referred under section 46. The Court would ordinarily be willing to undertake the task, very willing but it is essential that it first appeared that the question does arise, so in the Minister's submission, having regard to the legalities and the context of this matter, there should be a reference.

PN535

This case is not at all like Hamzy and for that reason there is no difficulty in making the reference which the Minister submits ought occur. If the Commission pleases.

PN536

SENIOR DEPUTY PRESIDENT MARSH: Thank you, very much, Mr Batt. Yes, we have a matter that needs our attention for 15 minutes so we intend to take a break for about 15 minutes.

SHORT ADJOURNMENT [11.08am]

RESUMED [11.31am]

PN537

SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Hatcher?

PN538

MR HATCHER: I appear to be next in the batting order if it please the Commission.

PN539

SENIOR DEPUTY PRESIDENT MARSH: I think so.

PN540

MR HATCHER: The matter which is before the Commission is an appeal from an order for the purpose of section 45(1)(b). Whilst the appellant seeks to raise other bases of appeal, the only arguable basis for appeal would seem to be an appeal from an order and that order has expired to the extent that it had any work to do in restraining that which the union wishes to do, it is gone, it does not exist so what then is the purpose of the union's appeal. The union, presumably, would wish to order that, notwithstanding the reasoning the decision that led to the making of the order, that the Commission ought be able to engage in industrial action.

PN541

Now, can I take it one step at a time? We say that the order has expired, it has no further work to do, it does not restrict or impede the union and there is no matter of such importance that, in the public interest, an appeal would lie. Contrary to the submissions of my learned friend, Mr Batt, my client does not favour a reference. My client would very much favour an order of this Commission dismissing the application for leave to appeal. If, however, the Commission is minded to grant leave to appeal because the Commission is satisfied that the question of whether the union should be entitled to engage in industrial action, is a question of some importance, then in my respectful submission, tat is the true question that arises.

PN542

My client did not, and in the proceedings below, and does not in these proceedings, contend, as the union suggested at paragraph 4(e) of their submissions that the justice of her Honour, Kenny J, in Emwest was good law. All we said in the proceedings below and say in this appeal that it is binding law. We do wish to argue that it was incorrectly determined. We do wish to argue that during the currency of the Enterprise Agreement, the Certified Agreement which binds my client's operations, that the union cannot engage in industrial action.

PN543

So if the true question is: can the union engage in industrial action, the question of whether Emwest was correctly decided, inevitably arises and the fact that, as we contend, this Commission has an arm of the executive, the administrative part of the powers under the Constitution cannot do but accept the law as determined by the judicial of the Commonwealth and would be bound to decide as we put to Commissioner Roberts, and he did decide in the proceedings below, Emwest was good law and proceed from that, the Commission would not be able to determine the issue conclusively between the parties.

PN544

My client would be put in a position where if the Commission were to find that Commissioner Roberts erred in distinguishing the facts of this case from the facts in Emwest, my client would be bound to take the matter further, to put the matter before - through a somewhat circuitous route, a Full Court of the Federal Court in order to have authoritatively determined the question of whether the union is entitled to engage in industrial action during the currency of the relative Certified Agreement. The question inevitably arises, if there is a question, proper for agitation on appeal. They are essentially, the short oral submissions my client wishes to put.

PN545

There's only one other matter that I would wish to be heard on and that is a matter arising from paragraph 21 of the CFMEU submission. In my respectful submission, and I think it follows from something that fell from Commissioner Hoffman, with respect, earlier. The way the Federal Court organises itself is entirely a matter for the Federal Court and it would be inappropriate for this Commission to decide to refer a question of law or to decline to refer a question of law based on how the Federal Court may constitute itself to determine that question of law. May it please the Commission.

PN546

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you very much, Mr Hatcher. Mr Slevin?

PN547

MR SLEVIN: Can I just go to two points from Mr Hatcher. We accept the distinction he made between binding and good law and that that was position of the company below and certainly wasn't seeking to misrepresent what was put by the companies. On the question of the Federal Court organising it, the Commission organising itself and the Commission taking that into account - I will go again to this, hopefully not repetitively. The Commission should be aware of what is going to happen to this reference.

PN548

It should be cognisant of what is going to happen in this reference and in what context it will fall in the Federal Court as part of the exercise of its discretion, in our submission. This is a very messy proposal by the Minister. It goes to a single member. You have got another single member already having determined the precise question and now that we've got the question formulated by the Minister, we can say that with no doubt. So the question is the same question that was determined by Kenny J in Emwest. It is the same question that a Full Court of the Federal Court is considering in the appeal from Emwest.

PN549

So in the Court at the moment that is the circumstance and my friend's right of leave to appeal has not been granted by that Full Court but it is seized by the Federal Court at the Full Court level at the present moment and the Minister is asking permission to throw another proceeding into the Federal Court on the same question in circumstances that we submit ultimately are most unsatisfactory for a number of reasons and I will go to those now, briefly, by reference to our submissions.

PN550

I'd like to start by correcting a couple of - I think you still call them typographical errors - I think they are a combination of typographical and word processor errors in our submission, starting at page 5. At the end of paragraph 9, the words: had not been followed - are unnecessary. They should be deleted. In paragraph 11, at the end of the second line, the word "issue", that sentence should read: there was an issue with the employee involved in the proceedings. Before the Commission was in fact a casual employee. In paragraph 13, in setting out the quote from Isaacs J, on the last line, the first word should be "not", no.

PN551

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN552

MR SLEVIN: Probably not a word processing error or an error of expression in paragraph 14: The Commission is minded to refer a question of law concerning the correctness of Emwest. It should not do so until it forms a view that the action was protected action. Probably in the Emwest sentence should follow, those words. Might I also say in relation to the lengthy - and the quote in paragraph 22 from the Full Court decision in Gorton, has been reproduced in full, indeed so it couldn't be said that we, and this has been picked up by the Minister, that we were trying to do anything other than rely on the principles enunciated about the stare decisis in that decision.

PN553

Indeed it is case about Full Courts reconsidering decisions of other Full Courts - we accept that, but we rely and perhaps we should have been

PN554

emphasising that. In particular on the quotes from the Telstra quote case in paragraph 27 of the quote on page 10, in particular quoting quotation marks starting: the doctrine of stare decisis. It takes its name from the Latin phrase, etcetera and then in paragraph 28, there's a further quote there from Telstra case and that quotes from paragraphs 27 and 28 of that case. We particularly rely on that and in paragraph 33, where the consideration of particular circumstances in Gorton's case are dealt with, there is some discussion there about the particular - the application in a particular legislative context and familiar construction exercise which applies general principles that are not in doubt.

PN555

It is a construction task often encountered by the Court and we say that what is considered in paragraph 33 in the actual reasoning of that case, is similar to the current circumstances where we are also dealing with the construction legislation. Also the particular paragraph 38 of the quote that unlike private litigants adversely affected by a Full Court decision on the construction of the Trade Practices Act in that case, Patents Act, the Commission is in a position to secure legislative amendments if it considers the decision on Keely Operates Against The Public Interest apposite for the Minister, we submit.

PN556

Just by adding those comments we rely on written submission filed and have just some brief submissions to make. In summary we say the matter has not arisen in the Isaac's sense: Hamzy. So that the question has been determined in any event. The Commission, in these proceedings, has not decided that Emwest is wrong. The argument has been put. It is as simple as that. The Commission is not at the point where it is saying: we accept those submissions. We foreshadow that if it goes on, if the appeal goes ahead, those arguments will be put so it has not arisen in that sense.

PN557

The Commissioner has not formed a view in this case and indeed, the Commission's view currently in these proceedings is that the action taken is not protected action. So the Commission has not formed the view that the action is a protected action in the Emwest sense. I can take - and I really do put that this is determinative and if we go to the question that the presiding member asked, Mr Batt, about parallel facts, we say that parallel facts in this case to the Hamzy circumstance, that there are parallel facts and the fact is whether fatigue management breaks a crypt ranks or not.

PN558

We put that squarely within the reasoning that Hamzy, at paragraph 23, the last sentence of that paragraph - I think it might be useful for the Bench to have that before it.

PN559

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN560

MR SLEVIN: If the Full Bench accepted Mr Hamzy's contention that he was not a casual employee, none of the questions referred to the Court would be material. If I could paraphrase that and apply it to these circumstances, if the Full Bench here accepts that the company's contention that fatigue management breaks are covered by the agreement, then none of - then the question that is presented to be referred to the Court, would not be material.

PN561

Just briefly in response to Mr Batt's submissions, we say that in relation to - to try and get back to what this case is all about, the question of stare decisis is important. It is about the union wanting to exercise its rights to appeal a decision of the Commission where we feel aggrieved on the interpretation or the application of the law as stated, and the law with that, as Mr Hatcher concedes, is binding on his permission. It is about whether we can take protected industrial action - now, I will start with protective industrial action over a pattern of work that we say is unfair and that we would like to agitate for an agreement to make that work fair and we say safe. That is what it is about and we want - we want the law that applies to protective action applied in our view, properly and we say it hasn't been by Commissioner Roberts.

PN562

The question of whether we can take industrial action at all and this goes to the point of whether this is a section 127 case or a section 170MN case is - it is just not - there is just no argument, we can take industrial action. The consequences of that industrial action whether a section 127 is issued, whether that section 127 is effective because of protections in section 170LT all flow from that. But to suggest that somehow the determination of this question is going to determine the question of whether industrial action can be taken over this industrial claim, is not sustainable.

PN563

It is a question - and if it is not protected action then it becomes a question in a section 127 case that this - these proceedings are about. It is a question about whether it is legitimate or not and that is where we say that - event if we get to the point where it is found - well, the action wasn't protected. We will still be here arguing to say: well, Commissioner Roberts never considered whether it was legitimate or not and in our appeal we will be saying: well - and he did that expressly, he said: I make no finding about the merits of the claim the union made and so it is not an issue that will be determined.

PN564

So in the circumstances we say well, this isn't some neat legal question to be trotted up to the Court where the finding of the Court will determine what happens down here. So they are the additional submissions that we want to make orally and unless there are any questions from the Commission, we will leave our address at that.

PN565

SENIOR DEPUTY PRESIDENT MARSH: Any questions? No, thank you very much, Mr Slevin. Have you got anything in response, Mr Batt? You couldn't have a lot?

PN566

MR BATT: I don't have a lot. Your Honour, sounds very apprehensive, I'm sorry if I have created that mind set in your Honour.

PN567

SENIOR DEPUTY PRESIDENT MARSH: No, you put your case, your put your case.

PN568

MR BATT: Your Honour, I do have brief points in response. Could I start with this most importantly, my learned friend says expressly that the union wants to show that it can take protected action, that is why they want to appeal. It must follow that the question for referral arises because that question determines whether there is any possibility of protected action or not and the question is answered, "yes," there can be no protected action. Now, if my learned friend's client wishes to have the issue whether he can take protected action resolved as it availably does, the question must arise at the very start of the inquiry, that resolution of that question would lead to.

PN569

Relatedly as to whether there are parallel facts here as compared to Hamzy, can I endeavour to sum up the position and the submission of the Minister as follows. In Hamzy the question of the validity of the regulation in issue only arose if certain facts were found to exist such as to bring the factorial ambit of the case within the field that the regulation operated upon. Until one had determined the facts, one didn't know if one was within the field of operation of the regulation and of course if one turned out not to be then the question didn't arise.

PN570

It comes back to looking at the question. When one looks at the question for referral here the established facts, the already established facts bring us within the field of operation of the section, section 170MN(1). There is no fact which needs to be resolved one way or the other to know if we are within the field of operation of the section because the established facts bring us to that point. Hamzy was in contrast in that critical regard. Very briefly on other matters raised orally, I have to address the Commission briefly again on the position in the Emwest matter itself.

PN571

There has been no argument before the Full Federal Court about the issue or the question which is sought to be referred by the Minister in this matter. If there is an appeal that issue will be argued, what has been argued and what is reserved is the question of whether leave to appeal or be granted. The issues that arose on the leave to appeal application did not involve submissions on and will not involve consideration of or decision of the question for referral here and if leave is refused then those matters will not have been a subject of consideration by the Full Court.

PN572

There were - I was involved in that application and it is the case that a limited part of the Minister's written submissions concerned the error of Emwest because the Minister said it wasn't - he wasn't clear whether he should deal with that matter and it was dealt with at the end of the written submissions and I don't wish to say anything which isn't factorially the case but whilst the written submissions of the Minister in limited part touched on the question of whether Emwest was right, that was not what was argued and it is not what will be decided by the Full Court in the leave application.

PN573

So the question is not being considered by the Full Court. As to Gorton's case, the Minister - whilst the union may seek to rely upon principles of stare decisis in this regard, and my learned friend has of course acknowledged that that case concerned a Full Court context but he seeks to rely upon it nevertheless. The Minister's submission is that while one appreciates that context, what that case and what that excerpt discusses and decides isn't of applicability. One comes to the result which can't really be, in my submission, seriously challenged that a Single Court Judge is not - sorry, that a single Judge of the Court is not bound by stare decisis to follow another Judge - another single Judge decision and once that position is accepted then any notion that a reference will be of nutria effect must disappear.

PN574

I would respectfully adopt and support the submission of my learned friend, Mr Hatcher, as I understood it, that it would be inappropriate in any event for this Commission to consider and be guided by what it might think would happen in the Federal Court if the reference is made somewhat of an in terrorem analysis. The question in my respectful submission is, firstly does section 46(1) apply and the Minister for the reasons given says "yes" and secondly, should the Commission in its discretion which must mean each discretion having regard to the facts of the case and the nature of the question make the reference an extraneous and speculative considerations as to the position in the Full - or in the Federal Court should not come into the picture in my respectful submission.

PN575

Finally there may, in my respectful submission, be some difference between theory and practice as to the ability of the Minister or the Parliament to achieve Legislative change so insofar as it has sought to rely upon a theoretical possibility or that possibility to say that there shouldn't be a reference again, in my submission, that taken practically isn't an answer. The Minister intervenes as he is entitled to and makes the submissions that the Commission has received from him and he relies upon those submissions. If the Commission pleases.

PN576

SENIOR DEPUTY PRESIDENT MARSH: Thank you. No further submissions? Nothing more from anybody? No.

PN577

MR BATT: I have run my course - - -

PN578

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN579

MR BATT: - - - unless you want me to address any further - - -

PN580

SENIOR DEPUTY PRESIDENT MARSH: No, thank you. Is there any questions? No. Can we thank you for the written submissions and the oral submissions today, they are most useful. The Commission stands adjourned. We reserve our decision.

ADJOURNED INDEFINITELY [11.56am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 SPECIAL CASE DOCUMENT PN431