C2002/3083, Transcript of Proceedings [2002] AIRCTrans 4697 (22 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2002/3083

INDEPENDENT EDUCATION UNION
OF AUSTRALIA

and

STUDY GROUP AUSTRALIA PROPRIETARY
LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re payment of severance allowance
and redundancy of employee

BRISBANE

9.37 AM, FRIDAY, 8 NOVEMBER 2002

Continued from 11.10.02 in Melbourne

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. I'll take appearances, please.

PN49

MR J. SPRIGGS: If it please the Commission, my name is Spriggs, initial J. I appear on behalf of the Independent Education Union.

PN50

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Spriggs.

PN51

MR J.R. JONES: Yes. If the Commission pleases, Jones, initials J.R, from Jones Ross, and I seek leave to appear on behalf of Study Group Australia Proprietary Limited.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Is there any objection to leave?

PN53

MR SPRIGGS: No.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, leave is granted. Yes. This matter has been called on to deal with a jurisdictional objection raised for the respondent. I received an outline, which I'll mark exhibit SG1, and an outline of response from the union, which I'll mark IEUA1.

EXHIBIT #SG1 OUTLINE OF SUBMISSIONS

EXHIBIT #IEUA1 OUTLINE OF RESPONSE FROM INDEPENDENT EDUCATION UNION OF AUSTRALIA

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jones?

PN56

MR JONES: Yes. If the Commission pleases, the initiating documentation for this matter was on 5 June 2002, when the Independent Education Union wrote to the Commission and advised of an industrial dispute between the union, on behalf of its member, Mrs Kaye Garwood-Gowers, and Study Group Proprietary Limited, the employer. That notice is attachment C to the outline of submissions.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes.

PN58

MR JONES: The - within that notice, the union advise that Mrs - and I quote:

PN59

Mrs Garwood-Gowers was employed by Embassy CES as a senior teacher on an ongoing contract of employment. She had been employed on an ongoing contract for more than four years. Mrs Garwood- Gowers was recently advised that -

PN60

- there's a quote in the letter -

PN61

"the position she held in the company was made redundant."

PN62

End of quote in the letter.

PN63

The employer offered employment in an alternative position to the employee, however, this offer was not ...(reads)... by the award, and because the classification of senior teacher is not included in the award.

PN64

THE SENIOR DEPUTY PRESIDENT: Is that an accurate depiction of the employer's position in respect of substantive issues.

PN65

MR JONES: No. It's not, Mr Deputy President, and I'll come to that. I'm just merely putting it in the context of what the original notice said. And then the notice went on to say:

PN66

The award provides that it applies to "teachers as defined." A teacher is defined by clause 6.16 as a person employed as such to teach English and to perform other related academic duties.

PN67

And that's the end of the quote from the correspondence. The matter came on before Commissioner Hodder on 17 June of 2002 for a conciliation conference. That conciliation was unsuccessful. The employer contested, at that point, that there was an entitlement to severance pay in accordance with clause 19 of the award as claimed.

PN68

THE SENIOR DEPUTY PRESIDENT: On what basis is that contested? I'm just trying to get the full background of the claim and - in order to consider his submissions, which I apprehend contend, one, there's no longer a employment relationship and, secondly, this is purely a matter of enforcement of existing rights.

PN69

MR JONES: Yes. Perhaps if I just clarify a number of points then, Mr Deputy President. The first is that, in regard to the award coverage, even though the employer did initially maintain that the award did not apply, that position is not maintained, that clearly on the reading of the award, the award does apply to this employer. And I don't think that was ever contested, but what was contested, that it did, in fact - did not apply to this particular employee. But that position is not maintained.

PN70

THE SENIOR DEPUTY PRESIDENT: So you now say the award is maintained. Sorry, the award does, or is accepted the award does apply.

PN71

MR JONES: Yes. It is. Perhaps if I could tender a copy of the award at this point.

PN72

THE SENIOR DEPUTY PRESIDENT: That's the Teachers English College Award 1995?

PN73

MR JONES: Yes. It is.

PN74

THE SENIOR DEPUTY PRESIDENT: Well, if Mr Spriggs doesn't have a copy, provide one to him. I have a copy before me. I won't mark it as an exhibit. It's a document of the Commission.

PN75

MR SPRIGGS: I have a copy, thank you.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN77

MR JONES: Within the original notification, the union referred to the definition of teacher within the award and maintained that applied to - - - - - -

PN78

THE SENIOR DEPUTY PRESIDENT: Miss Garwood-Gowers.

PN79

MR JONES: - - - Miss Garwood-Gowers. Sorry.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes.

PN81

MR JONES: And if the Commission was to turn to clause 6 of the award, and to the definition at 6.16.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR JONES: And I quote. It says:

PN84

A teacher means a person employed as such to teach English and to perform other related academic duties.

PN85

Now, that was the part that was quoted by the union, and then it goes on to say:

PN86

But does not include the principal, deputy principal or director of studies. Teacher shall include a person whose principal role is to teach, but whose duties may include such roles as librarian, counselling, activities officer and accommodation officer.

PN87

So it is conceded that Miss Garwood-Gowers does not fall into one of the exclusions. She was not principal, deputy principal or director of studies, and certainly her - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Principal role.

PN89

MR JONES: - - - principal role was to teach.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN91

MR JONES: Now, the additional matters as to why the college maintains that Miss Garwood-Gowers was not entitled to the severance pay in accordance with clause 19 of the award goes to her role within the college. It is conceded that the position of senior teacher was abolished within the college, but her role, even as senior teacher, involved teaching. And I think that by claiming the definition, if you like, within the award, as the union did, they clearly concede, as well, that she was principally engaged as a teacher, or principally engaged in teaching.

PN92

So the position maintained by the college was that, whilst that particular role we had for you ceased to exist, there was still a position within the college for you as a teacher. And at attachment A to the outline of submissions is a letter - sorry, attachment B, which was a letter from Jill Langmore, as principal of the Brisbane campus of Martin College to Miss Kaye Garwood-Gowers, indicating to her in the first paragraph that she - there was a continuing position of a teacher under the same hours and the same salary as previously employed, in the first paragraph of attachment B to the outline of submissions.

PN93

So the position that was adopted in respect to the claim was that your role was principally as a teacher, there was still a role there as a teacher, there was no change in the hours of duty or the salary that was to be paid, and there was an ongoing position. What then occurred was that Miss Kaye Garwood-Gowers advised the college that, in fact, she was ending her employment with the college as of 17 May 2002. And that letter of resignation is attachment A to the outline of submissions.

PN94

THE SENIOR DEPUTY PRESIDENT: Presumably, it would be said on a basis that her position is redundant and she will cease from that date. You see, the earlier letter, 13 May, makes it quite plain the position of senior teacher has been made redundant and the award, as I read it, doesn't deal with the position of acceptable alternative - alternate employment, as many awards do.

PN95

MR JONES: Yes. That could be the case, Mr Deputy President. I haven't looked at that.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes.

PN97

MR JONES: But the view that the college took was that it was principally a teaching role, that she would continue to teach and, therefore, there was not entitlement to severance pay. There was no termination at the initiative of the employer which would then initiate an entitlement under clause 19 of the award.

PN98

THE SENIOR DEPUTY PRESIDENT: Was there an earlier letter advising Miss Garwood-Gowers that the position of senior teacher had become redundant? See, the chronology seems to be that, in some manner, Miss Garwood-Gowers is advised that the position is redundant and then offered another position, which she declined. Now, was there any indication of when the position would cease to be available to Mrs Garwood-Gowers?

PN99

MR JONES: Mr Deputy President, I'm just looking through the file. I can't find a document that goes exactly to the points you've raised but I do have a document that's - - -

PN100

THE SENIOR DEPUTY PRESIDENT: No, there's nothing on the Commission's file to - - -

PN101

MR JONES: No. I do have a letter dated 28 November of 2001 which was an application for the position of Program Manager, Student Support, from Ms Kaye Garwood-Gowers and I think that was one of the replacement positions but I can't say for certain when the advice came that that position was to be done away with.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, that gives me some background. Is there anything further on the background?

PN103

MR JONES: No, I think that summarises the position there, Mr Deputy President. I turn, now, to the legislative context in which the claim is made - and perhaps some alteration from the original outline but nevertheless dealing with the same matters that - the position that is being adopted by the union is that they are relying on the original notification of the dispute to create the award in the first instance, perhaps referred to as the paper dispute that led to the making of the award. Now, it's our position that the union is not able to rely on a paper dispute in support of this present application.

PN104

If I could take the Commission to a decision of the High Court of Australia in Boyne Smelters Limited ex parte Federation of Industrial Manufacturing and Engineering Employees of Australasia, Full Court 93014/93.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes.

PN106

MR JONES: I take the Commission to the majority judgment of Brennan, Deane, Toohey and Gaudron JJ and at paragraph 23 which is on page 5 of 16 of the decision - - -

PN107

THE SENIOR DEPUTY PRESIDENT: 5 of 16 - 23, yes.

PN108

MR JONES: I quote:

PN109

A paper demand, made only to enable the Commission to hear and determine applications for the ...(reads)... and the individual former employee or employees concerned.

PN110

We think it goes to the point that's being made here, that it's clearly that the union seeks to rely on a paper dispute that was generated some years ago to deal with a matter between an individual employer and an individual former employee. There's no suggestion that it involves any more employees of this employer. It involves employers outside the existing employer. So we say it's clearly, from this decision of the Court, that paper disputes can't be used as the basis on which to bring an argument before the Commission in respect to an individual employer and an individual former employee.

PN111

The second matter in regard to the industrial dispute is a fairly simple one and that is that this dispute notification was lodged, in fact, after this individual had terminated their employment. The facts are that the termination of employment occurred on 17 May and that is recorded in attachment A to the outline of submissions and is the letter signed by Ms Garwood Gowers, addressed to the principal of the college and the notification of the dispute occurred on 5 June 2002 so if industrial disputes relate to the relationship between employers and employees then, on this occasion, that doesn't exist because the claim is that there's a dispute between an employer and a former employee. So on that basis - - -

PN112

THE SENIOR DEPUTY PRESIDENT: Which is the point in Boyne Smelters.

PN113

MR JONES: Yes.

PN114

THE SENIOR DEPUTY PRESIDENT: It's not a separate point.

PN115

MR JONES: A reinforcement of it, yes.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN117

MR JONES: The additional submissions go, firstly, to reference to section 179 of the Act which says:

PN118

Where an employer is required by an award to pay an amount to an employee, the employee may sue for the amount of the payment in court or any court of competent jurisdiction.

PN119

And then, section 177A defines a Court of competent jurisdiction as the District, County, a Local Court or a Magistrates Court. Clearly, from the original notification, what is being sought here is the payment of an entitlement under an award, in accordance with clause 19(1). So it would be our submission that that isn't what is being sought in - it's a requirement for an employer, by virtue of an award, to pay an amount to an employee and that if that is the case then it needs to go to one of the courts of competent jurisdiction to deal with that matter and not to the Commission.

PN120

A related element of that is just the general jurisdiction of the Commission to exercise a judicial function versus an arbitral function. In fact, what we say in this case is that this claim involves a judicial function of the Commission and not an arbitral one. And there are two cases to which I would refer in that regard. The first of them is a decision of the Full Bench - - -

PN121

THE SENIOR DEPUTY PRESIDENT: Or part of the decision of a Full Bench. Thank you.

PN122

MR JONES: - - - a decision of the full Bench in Qantas Airways Limited v the Australian Municipal, Administrative and Clerical Services Union, a decision of the Full Bench. It's print R2578 and, at page 1017, starting at paragraph 31, it says:

PN123

It is convenient to deal, first of all, with the submission made by Qantas that the Commissioner's determination ...(reads)... as more recent authorities demonstrates.

PN124

And then, at paragraph 44, on page 14 of the same decision and in the second sentence of that paragraph, it says:

PN125

His determination was an adjudication of a dispute about rights and obligations arising solely from the ...(reads)... Accordingly, the determination is invalid.

PN126

There is further support for the proposition that is referred to in Ranger Uranium Proprietary Limited ex parte the Federated Miscellaneous Workers Union of Australasia.

PN127

MR JONES: At - I'm sorry, at page 4 of 7, at paragraph 17, and sorry, once again, Deputy President, this is a decision of the High Court of Australia:

PN128

It is clear that reinstatement may be claimed as a legal right or as a remedy for breach of a legal ...(reads)... entertain disputes as to the existence or enforcement of legal rights or obligations.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, paragraph 9 seems also to reinforce the point made in Boyne that you relied on earlier.

PN130

MR JONES: Yes.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN132

MR JONES: Deputy President, I think those last ones go to the main points we want to make, that what has been sought here by the union by virtue of its notification to the Commission on 5 June, is for the Commission to enforce existing rights. We say that's a judicial function and given that it is a judicial function, it falls outside of the power of the Commission to deal with the matter. If the Commission pleases.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Jones. Mr Spriggs.

PN134

MR SPRIGGS: Thank you. I'll deal with some of the points that Mr Jones has made after I've proceeded through my main points, if I may.

PN135

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN136

MR SPRIGGS: But before I do that, you asked Mr Jones a question in relation to a letter indicating to the employee the future or the lack of future of her position. I do have a copy of an e-mail sent to the employee on 2 January which may shed some light on that. I don't have multiple copies but I am happy to allow Mr Jones to see it.

PN137

THE SENIOR DEPUTY PRESIDENT: Perhaps if you can allow him to see it and I'll view it and if there's no issue we'll have copies made and the document admitted.

PN138

MR JONES: No, I have no problems with that.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Perhaps I'll have a look at it and have a couple of copies made. Yes, it doesn't seem to - I'll mark it IEUA2.

EXHIBIT #IEUA2 E-MAIL SENT TO EMPLOYEE DATED 2/1/02

PN140

THE SENIOR DEPUTY PRESIDENT: It doesn't seem to shed any light on particular timing. It seems to talk about advertising in respect to senior positions. I'll just have a copy made of that. Does that go directly to the point - I mean, it is of assistance and it sheds further light but - - -

PN141

MR SPRIGGS: It was put up on that basis that it might add some further assistance but as you correctly point out, it doesn't indicate a specific date but it does indicate that the decision was made in relation to the position of senior teacher and talks about, I think from memory, asking the question, "Would you be prepared to consider another position?"

PN142

THE SENIOR DEPUTY PRESIDENT: Yes.

PN143

MR SPRIGGS: For the benefit of the Bench, there was some considerably toing and froing between the employee and the employer between the date of that e-mail and the date that matters finally reached their conclusion in relation to what the employee's future may in fact hold. But if I go to the outline of the submission that we've put forward, the employee was employed by the employer and that's acknowledged in their submission and the submissions made by Mr Jones this morning. Study Group Proprietary Limited is the successor. Mr Jones has indicated to me this morning that he does not take any issue with that, so I don't present any formal evidence.

PN144

THE SENIOR DEPUTY PRESIDENT: And it's accepted that the award applies. The issue - or an issue between the parties at least seems to be whether clause 19.1 applies in the particular circumstances of - - -

PN145

MR SPRIGGS: That is the case. If I can be pedantic for a moment, I think the Fruhoff Trailer decision drew a distinction between a respondent who was there as an initial party to the dispute as opposed to one who had respondency only by virtue of membership of an employer association, and I was seeking to avoid any challenge on that basis.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN147

MR SPRIGGS: The next relates to the log of claims which I've made a copy of to the bench.

PN148

THE SENIOR DEPUTY PRESIDENT: IEUA3.

EXHIBIT #IEUA3 LOG OF CLAIMS

PN149

MR SPRIGGS: In fact we didn't have time to quickly mark this, this morning, as to the section that dealt with the area I want to refer the Bench to, so if you just bear with me a moment, please. I'm somewhat embarrassed. I looked at it earlier when I was looking at the case and I can't find it now. Yes, sorry, it comes under point 7, Contract of Employment.

PN150

THE SENIOR DEPUTY PRESIDENT: Recruitment, Transfer, Discipline, Termination Procedures.

PN151

MR SPRIGGS: That would be the one in conjunction - yes, sorry, point C, as you correctly point out, which is on page 4. This log of claims, which was served in 1989, I think it was, was in very similar terms to a range of logs that were served at that time and dealt with issues concerning whether an employer could terminate and the claim that employees be reinstated and similar logs have been before various benches of the Commission from time to time. But we would say that the issues identified within clause 7 of that log of claims provide sufficient ambit, as we'll cover later in our submission.

PN152

I don't think there's any issue with point 4 in our outline that the employee was a senior teacher and that she was subject to an ongoing contract and that her employment was covered by the Teachers (English Colleges) Award. Mr Jones has acknowledged that this morning. The position of senior teacher was made redundant and that's contained in the letter from the employer to the employee dated, 13 May, which is attached to the outline of their submissions, and in the letter dated, 12 May, from the employee she indicated that she did not accept the alternative position as a teacher which was offered to her.

PN153

It may be useful at this point in time to indicate that your observation this morning in relation to the absence from clause 19 in the award of a provision in relation to acceptable alternative employment was a point that we intended to make to the Bench and submit that the absence of such a provision placed the employee in a position of not being limited from receiving the redundancy payment because of that offer and did draw fortitude from that submission or in that submission from the recent decision of the Federal Court of Australia in the Construction, Forestry, Mining and Energy Union v AMCOR Limited, (2002) FCA 610, decision released on 13 May 2002.

PN154

The interpretation of the Court in that case went to the point that whilst there might be generally accepted views, if it wasn't actually contained in the document then it wasn't able to be enforced or restrict the right of the employee where they were claimed

PN155

THE SENIOR DEPUTY PRESIDENT: I'm sorry, if there wasn't a - in the circumstances of this case - if there wasn't a provision in respect to alternate employment then you wouldn't read one into it.

PN156

MR SPRIGGS: That's correct.

PN157

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think that's probably a matter of common legal sense. Yes.

PN158

MR SPRIGGS: Yes. And the next point is probably the crux of our submission and that is we submit that pursuant to section 114 of the Act the Commission may make a further award in resolution of the original dispute between the parties. Now, to follow that line I'd put forward a number of precedents. The first one is a decision by Commissioner Brown, print number G7079.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes.

PN160

MR SPRIGGS: Now, this - - -

PN161

THE SENIOR DEPUTY PRESIDENT: Can I interrupt you, Mr Spriggs? Do you intend to hand up any other documents?

PN162

MR SPRIGGS: Yes, I am.

PN163

THE SENIOR DEPUTY PRESIDENT: Perhaps you could do that now. I just need my associate to go and attend to something.

PN164

MR SPRIGGS: I have print K1216.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I won't mark the decision.

PN166

MR SPRIGGS: And print J2864.

PN167

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you for that. Or you come to them in due course. Commissioner Brown, I think, in the first instance.

PN168

MR SPRIGGS: Yes. Sorry.

PN169

THE SENIOR DEPUTY PRESIDENT: That's Horwood Bagshaw.

PN170

MR SPRIGGS: I beg your pardon?

PN171

THE SENIOR DEPUTY PRESIDENT: Horwood Bagshaw.

PN172

MR SPRIGGS: That's correct. A case with quite a deal of history of litigation and it's noted by the Commissioner on the bottom of the front page there that the matter had been before the President and later to the High Court. If I turn to the second page this was a case where the employer had argued that the Commission did not have jurisdiction to hear the matter, somewhat similar to the argument which is being advanced before you this morning. Looking at the bottom of the second page:

PN173

When proceedings resumed after the President's decision had been issued it was argued ...(reads)... award, a power not available to it and so the Commission should go no further.

PN174

Then the Commission refused to rule on it - on either argument - until it had investigated the facts. Now, that decision to investigate the facts and the concept of investigating the facts is something that I will come to later, but that's part of our submission that the Commission should not be prohibited from investigating the facts of the matter in the case currently before it.

PN175

If I can turn now to page 19 of the decision at approximately half way down the page under the heading, Company Challenges Jurisdiction. "When proceedings resumed after - - -

PN176

THE SENIOR DEPUTY PRESIDENT: Just one moment. Sorry, I've got 19 of 19.

PN177

MR SPRIGGS: Page 9 of 19.

PN178

THE SENIOR DEPUTY PRESIDENT: Oh, 9, sorry. Yes. Yes, I'm with you.

PN179

MR SPRIGGS:

PN180

When proceedings resumed after the witnesses had been heard counsel for the ...(reads)... not being extended to those terminated employees." He repeated the company's assertion that -

PN181

there's another quote there -

PN182

and that being so the Commission is being asked to proceed to carry out the judicial function of making an interpretation of the award.

PN183

Again, we'd suggest, the analogy with the application before the Bench today is clear. Commissioner Brown then, on page 10 towards the top of the page, set out part of the argument on behalf of the union countering the employer's argument and he stated, and I quote:

PN184

For the union three judgments of the High Court were referred to in support of the argument ...(reads)... that the determination of the common understanding of the word is a question of fact -

PN185

and just breaking there that is important in our submission. We submit that the Commission is being asked to deal with a question of fact not a question of law. And going back to the quote:

PN186

See the Bathurst City Council case of 1980. The third judgment decided the City of Salisbury ...(reads)... appointed by this Commission was not required to exercise judicial power in dispute brought to it.

PN187

And we similarly would suggest that the decisions as outlined and summarised there support the submission that we are making this morning. Then going to page 11 at the top of the page and again quoting:

PN188

So in this matter it is my opinion that the Commission does have, and should accept, that ...(reads)... the circumstances the Commission is going to proceed to hear the parties to a conclusion and then make its decision.

PN189

And, again, we submit that that is the attitude that the Bench should adopt today that we are asking it to further determine the original dispute and that the Commission should, in fact, be allowed to hear the matter to conclusion, make its decision once in possession of all the facts, once it's undertaken its thorough investigation.

PN190

THE SENIOR DEPUTY PRESIDENT: What is it that the union is seeking that the Commission determine?

PN191

MR SPRIGGS: Well, Commissioner, part of what we are seeking is set out in our notification that Mr Jones has referred to.

PN192

THE SENIOR DEPUTY PRESIDENT: Yes.

PN193

MR SPRIGGS: And again I was going to come to this later, but I will refer to it now. Mr Jones said that our letter to the Deputy Registrar in Brisbane dated 5 June, showed that what we were after was the exercise of judicial function, those were his words, but my paraphrase.

PN194

THE SENIOR DEPUTY PRESIDENT: Yes.

PN195

MR SPRIGGS: But I would refer to the fifth paragraph of our letter, and I quote:

PN196

The employer has refused to pay severance allowance to the employee in line with clause 19 ...(reads)... the classification of senior teacher is not included in the award.

PN197

Now some of the points that Mr Jones has accepted this morning had not been accepted prior to this morning and were in contention. And we submit that we were, in fact, looking for the Bench to make a determination of fact as opposed to a determination of law as further the distinction that I have just referred to in the Horwood Bagshaw case, in relation to the question which would be before it. And that is, again, we submit, that we would be looking for an order varying the award to make it clear, and the phraseology I need to be certain of. Just excuse me a minute.

PN198

We would be seeking a further award or further order determining the rights and obligations of the employer, and in this case the employee, in this case.

PN199

THE SENIOR DEPUTY PRESIDENT: I am sorry, determining the rights and obligations?

PN200

MR SPRIGGS: Yes, as the Commission did when clause 19 was inserted into the award it determined that there would be a right on behalf of the employee to gain redundancy pay in certain circumstances, and an obligation on the employer to pay redundancy pay in certain circumstances. We would be seeking a further award or order clarifying those rights and obligations in circumstances that seem not to be clear on the face of the award as it stands at the moment.

PN201

THE SENIOR DEPUTY PRESIDENT: And you suggest that it is not clear on the face of the award?

PN202

MR SPRIGGS: Well, our position is that given that the dispute arose with the employer and again we are in a slightly different position this morning, given the concessions that have been made by the employer, but - - -

PN203

THE SENIOR DEPUTY PRESIDENT: Well, as I ascertain it, the issue is whether - well the application of clause 19.1.1 where the employer no longer wishes the job of the employee has been done - to be done by anyone, and whether that applies in these particular circumstances. There is probably a subsidiary issue of whether there is a termination at all at the initiative of the employer, which the employer raises.

PN204

MR SPRIGGS: That latter point is a question of fact which we would submit is within the jurisdiction of the Commission to hear.

PN205

THE SENIOR DEPUTY PRESIDENT: But there has to be a determination of the question of fact for the purpose of performing one's arbitral functions in the prevention and settlement of disputes, rather than a determination of question of fact for determining the application of existing award rights?

PN206

MR SPRIGGS: That's correct. And we would be - the next decision that is before you, indicate that there are occasions when the Commission has, in fact, done that and appeared not to have been constrained in doing so.

PN207

THE SENIOR DEPUTY PRESIDENT: Yes.

PN208

MR SPRIGGS: And just concluding - sorry, not concluding, but on that page of the Horwood Bagshaw decision, indicating that the employer in that case sought a writ from the High Court prohibiting the Commission from proceeding, but that was declined by the High Court. And then on page 18, at the bottom, Commissioner Brown says:

PN209

In my opinion they are entitled to redundancy benefits because of the reasons given for their dismissal ...(reads)... purpose in mind the variation to the award will apply from 6 January 1986.

PN210

So in that case the Commission did further vary the award, make a further award or further order in relation to having determined the rights and obligations of the employer and employees. Now, it is made even clearer in the next case, which is the decision of Commissioner Frawley, Vehicle Industry, Repair, Service and Retail, print K1216, which was a notification, a dispute by the Metals Union. And page 3 of 6, about two-thirds of the way down the page Mr Wallace, who appeared for the union in that case, and I quote from the decision. Mr Wallace said:

PN211

It is within power and proper for the Commission to determine its own jurisdiction and at no time ...(reads)... does not necessarily involve the exercise of judicial power.

PN212

And I think that quote goes to the point that you were just raising. And reliance there is placed on the City of Salisbury Case. At the very bottom of the page Mr Wallace said:

PN213

That the Commission can interpret the award provisions as a step towards determining what rights ...(reads)... or of part settlement of an industrial dispute.

PN214

The union is asking the Commission to use other powers than enforcement within its jurisdiction to resolve the industrial dispute, and that is what Horwood Bagshaw Case is about.

PN215

In the middle of the next paragraph the union stated, and we would support this in our submission today:

PN216

In any case it would also be open to the Commission to act on its own motion if it considers it is ...(reads)... are not circumscribed in any way of the relief sought.

PN217

And a couple of cases are quoted there to support that submission. And again if deficiency is seen in the fact that we have notified by way of dispute but not formally applied for a variation of the award, we seek to rely on the power of the Commission to act on its own motion to resolve the dispute, as outlined there.

PN218

THE SENIOR DEPUTY PRESIDENT: Well, I would be assisted if I knew what, in more precise terms, was being sought, what order is being sought?

PN219

MR SPRIGGS: The order being sought, and I don't know that there is - the order that would be sought would be an order, and I don't have the decision here, but I think it was a decision of Commissioner Cox, where he actually granted an order that said that a particular employee was entitled to the redundancy pay as set out in the award. And that would be the type of order that we would be seeking. And it is not unusual, and I think there are, there have been over time a few of those, particularly annexed to the Metal Industry Award, individual orders dealing with individual employers. I could at a later time supply the reference to that decision of Commissioner Cox. I don't have it with me.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes.

PN221

MR SPRIGGS: I think from memory it was Orford Refrigeration in Toowoomba.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN223

MR SPRIGGS: It is set out further down on page 4, and again it is part of the submission that we would make to the Bench, on the question of discretion Mr Wallace referred to the statutory duty of the Commission to prevent and settle disputes by conciliation and arbitration. The conclusion of Commissioner Frawley in that case was set out on page 5, that the Commission didn't accept the employer's argument. He said:

PN224

The dilemma I am faced with is this: I am required by statute to prevent and settle industrial disputes ...(reads)... or redundancy whichever on the weight of evidence I conclude in fact happened.

PN225

And as I said before that inquiry is part of what we are asking the Commission to do. Now Mr Jones has also made submissions in relation to, or his submission, again if I paraphrase it, but where an employee is not currently employed, that takes away or prohibits the description of the situation as a dispute. And he referred to the Boyne Case.

PN226

THE SENIOR DEPUTY PRESIDENT: Yes.

PN227

MR SPRIGGS: And I want to refer to the last document I have handed up, print J2864, a decision of Deputy President Riordan, Clothing and Allied Trades Union v Wills Industries. And on page 9 of 10, about a third of the way down the page, the Deputy President there stated, and I quote:

PN228

It has been argued that the employer/employee relationship has been severed in many cases ...(reads)... since proceedings have commenced is a bar to jurisdiction.

PN229

And skipping down in that quote a sentence before reference to certain print numbers etcetera:

PN230

It is within the power of the Commission to make an award which speaks -

PN231

And just breaking off, I think there must be a typo here, and I just indicate that the words don't seem to flow correctly, but I will read it as it is says:

PN232

- it is within the power of the Commission to make an award which speaks from the before ...(reads)... in this industry in anticipation of redundancy situations occurring.

PN233

And that quote from the Rubber Plastic, etcetera award, to me indicates that the Full Bench of the Commission has accepted that even where the employment relationship has been terminated it has been held that the Commission does have jurisdiction to entertain arbitration of those issues because of the collective nature of what initiated the dispute in the first instance, the union acting collectively for its members throughout Australia, and involving a dispute with a significant number of employers throughout Australia.

PN234

And that whilst one individual employee and their employer the relationship may have been broken, it is still recognised that the issue is of interest to the union and its other members and in relation to the rights of the employer for other employees and in relation to other employers.The Deputy President Riordan then said, and I quote:

PN235

I have followed the reasoning in that decision in determining the question before me. It is decided ...(reads)... issues which are in dispute and to take appropriate steps to prevent a further dispute.

PN236

And I end the quote there. So we submit that the question of the employment relationship being terminated is not fatal, based on the authority cited there.

PN237

The last two points in the outline of my submission I don't think need reiteration. I don't think they have been challenged. But I would now just make a couple of comments in relation to the issues or submissions that Mr Jones has presented to you this morning. I've referred to the letter of the 13th of the 5th that states that the employee was made - the position was made redundant and referred to clause 19. In the Boyne Island case, Mr Jones quoted from paragraph 23, but paragraph 24, when that is read, seems to go on to say that there are circumstances where the foregoing paragraph may not apply. And if I read paragraph 24:

PN238

Clearly, there may be circumstances where an award for the actual reinstatement of former employees ...(reads)... pending arbitration of a claim for the imposition of a general regime.

PN239

So it seems that the bland submission that a paper demand does not create the jurisdiction is in fact modified or qualified by that latter paragraph and we would there refer back again to the quote that I read just a minute ago from the decision of the Full Bench in the Rubber, Plastic etcetera award which, to our mind, overcomes that objection.

PN240

THE SENIOR DEPUTY PRESIDENT: Well, the difficulty there is the qualification refers to the nature of the original dispute and the way in which it had evolved. The issues in this case, about which I have no evidence - - -

PN241

MR SPRIGGS: And that - I freely acknowledge that that's correct. Our position would be that would have been one of the issues that would have been canvassed in the substantive hearing as opposed to a preliminary hearing on judicial issues.

PN242

Now, Mr Jones referred to the Qantas case, print 2587, and at paragraph 32 of that case a quote from the Waterside Workers case. And the second part of that quote is one that I would seek to highlight to you. And I read:

PN243

Whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what is, in the opinion of the arbiter ought to be the respective rights and liabilities for the parties in relation to each other.

PN244

And as I said earlier, that's what we are asking the Bench to do in this case, is to investigate, ascertain and declare what is the respective rights and liabilities of the parties in relation to each other.

PN245

Those are all of the - - -

PN246

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph was that from?

PN247

MR SPRIGGS: That's paragraph 32 and the quote contained therein.

PN248

THE SENIOR DEPUTY PRESIDENT: Bear with me one moment. Yes. The emphasis there is on what ought be the respective rights. There's a creation of future rights. And you're saying that that should be done by virtue of provision in an award saying that a particular employee is entitled to a provision of an existing provision of the award?

PN249

MR SPRIGGS: A further award, as I have indicated. We, with respect, would not read "ought" as applying only to future rights, but also in relation to past rights.

PN250

THE SENIOR DEPUTY PRESIDENT: Sorry - ought - - -

PN251

MR SPRIGGS: We don't, as I said - - -

PN252

THE SENIOR DEPUTY PRESIDENT: I think the distinction - the judicial function distinction is essentially one between the enforcement of existing rights and the creation of future rights.

PN253

MR SPRIGGS: There have been occasions, and the decisions that I've put before the Bench this morning identify occasions where the Bench has made an order or an award that have dealt with past occasions or past events.

PN254

THE SENIOR DEPUTY PRESIDENT: But on the basis of creating a future right - in the case of Commissioner Cox, a right by virtue of a separate award - in effect, rights under an existing award.

PN255

MR SPRIGGS: Well, however they're described, we would submit that - just bear with me for a moment.

PN256

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it's very important how they're described. That's the basis upon which these sorts of issues are resolved.

PN257

MR SPRIGGS: If we deal with the Commissioner Frawley decision - that was clearly a case where the employee had been terminated - - -

PN258

THE SENIOR DEPUTY PRESIDENT: Yes.

PN259

MR SPRIGGS: - - - and a decision where the Commission then said that it could make the inquiry and, whilst it's not stated clearly in his decision, the only commonsense reading, in my submission, of that is that the Commission held that he had jurisdiction to make the inquiry. And if the inquiry went one way, the only logical outcome of that inquiry would be an award of the nature that we've referred to. And, as I said, the decision of Commissioner Cox - he actually outlines the order that was made and subsequently appended to the Metals Industry Award. Again, I apologise for not having brought a copy of that decision with me.

PN260

THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps you'd best bring it to my attention formally at some point - - -

PN261

MR SPRIGGS: I can do that - - -

PN262

THE SENIOR DEPUTY PRESIDENT: - - - with a copy to Mr Jones, obviously, and - - -

PN263

MR SPRIGGS: Obviously.

PN264

THE SENIOR DEPUTY PRESIDENT: - - - the right to - - -

PN265

MR SPRIGGS: I can do that later today.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes, and we'll wait for Mr Jones to comment upon it, if he needs to. Yes.

PN267

MR SPRIGGS: Yes. Well, those are all of the submissions we have, if it pleases the Commission.

PN268

THE SENIOR DEPUTY PRESIDENT: Yes - and you're saying that the order which you are seeking would be an order in similar terms to that granted by Mr Commissioner Cox?

PN269

MR SPRIGGS: That would be correct.

PN270

THE SENIOR DEPUTY PRESIDENT: And that's, in effect, an order saying a particular employee was entitled to a particular amount of redundancy pay.

PN271

MR SPRIGGS: That's correct.

PN272

THE SENIOR DEPUTY PRESIDENT: Well, was it in those terms or redundancy pay as proscribed by the relevant award?

PN273

MR SPRIGGS: My recollection is that it set a dollar amount. But again that will be resolved when I provide a copy to you.

PN274

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Yes, Mr Jones.

PN275

MR JONES: Mr Deputy President, it seems to me that by virtue of the order being sought that the - I think I recorded it correctly, the employee is entitled to redundancy in accordance with the award. Regardless of which way Mr Spriggs tries to dress it up, is in fact an order in respect to existing rights. Now, with due respect to Commissioner Cox, I think I'd rather rely on the authorities of the High Court in expressing a view about what is a judicial function of the Commission and whether he's entitled to make the orders. As I say, it seems to me, no matter which way you try and dress it up, that order is nothing more than an expression of a view about what are existing rights of the employee.

PN276

You asked the question of Mr Spriggs: is he suggesting that the current provisions are not clear - in the award, are not clear on their face. Now, I'm not sure he answered it directly, but certainly he didn't say that the award, as it presently exists, is not clear. The other matters to which he refers, other cases deal with further inquiries, if there's an ambiguity or uncertainty as to the award and I think that may have been what prompted your question. There's been no suggestion in these proceedings, that there is any ambiguity or uncertainty with respect to the award provisions.

PN277

If there was, then the union would be seeking a different order to the one they've suggested they seek. Similarly, with the reference to Commissioner Frawley, he says no more in that decision of - the Metals v Ranger Gale Enterprises than he will make further inquiries into the circumstances. Now I say that I don't have a problem if he decides that, but he's making further inquiries. Then Mr Spriggs says the logical outcome of that is he's going to make some order. There's no evidence here that in fact there was any decision of the Commission. It may have been resolved by conciliation; it's just an unknown factor.

PN278

I don't think you can draw any comfort from a decision of the Commission that says he will inquire further into the circumstances. It's not on foot with the order he seeks here. In conclusion, Mr Deputy President, we think there's nothing that's been put by Mr Spriggs that deals with - clearly with those High Court authorities that we put forward before the Commission that clearly indicates that the Commission does not have the right to exercise a judicial function and that is clearly what is being sought in these proceedings, if the Commission pleases.

PN279

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Yes, I'll reserve my decision. I will require you, Mr Spriggs, to provide not only a copy of the decision and order of Mr Commissioner Cox but in very specific times the order that is being sought in the circumstances of these cases, that may well be determinative of the jurisdictional issues before me but obviously in reserving my decision, I'll give consideration to all that has been put. I add that it might be necessary, depending on what view I take of the matters, to obtain further evidence in relation to the jurisdictional issue alone.

PN280

Equally it may not be. It will depend on what position is reached by me in relation to material presently before me including that additional material I've asked you to provide, Mr Spriggs. If that could be provided within seven days, copy provided to Mr Jones, and Mr Jones, you will be provided with seven days to put in, in writing, any submission you wish in relation to that material.

PN281

MR JONES: Thank you, Mr Deputy President.

PN282

THE SENIOR DEPUTY PRESIDENT: And you may respond very shortly thereafter, Mr Spriggs.

PN283

MR JONES: Yes, thank you, Mr Deputy President.

PN284

THE SENIOR DEPUTY PRESIDENT: So I'll adjourn the matter on that basis but I would propose to go off the record and into conference with the parties.

NO FURTHER PROCEEDINGS RECORDED [10.46am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SG1 OUTLINE OF SUBMISSIONS PN55
EXHIBIT #IEUA1 OUTLINE OF RESPONSE FROM INDEPENDENT EDUCATION UNION OF AUSTRALIA PN55
EXHIBIT #IEUA2 E-MAIL SENT TO EMPLOYEE DATED 2/1/02 PN140
EXHIBIT #IEUA3 LOG OF CLAIMS PN149