C2002/4711, Transcript of Proceedings [2002] AIRCTrans 4945 (9 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER
VICE PRESIDENT ROSS
COMMISSIONER ROBERTS

C2002/4711

APPEAL UNDER SECTION 45 OF THE ACT BY
NT FRIENDSHIP AND SUPPORT INCORPORATED
AGAINST THE DECISION AND ORDER OF
COMMISSIONER EAMES AT DARWIN ON 29 AUGUST
2002 IN U NO 2785 OF 2002 RE ALLEGED
TERMINATION OF EMPLOYMENT

DARWIN

9.35 AM, MONDAY, 25 NOVEMBER 2002

PN1

VICE PRESIDENT ROSS: Could I have the appearances please?

PN2

MR M. BLANDY: Good morning, your Honours, my name is Martin Blandy, I am an employee of the Northern Territory Chamber of Commerce and Industry, I appear on behalf of our member the NT Friendship and Support Incorporated, with me, on my immediate left is KYLIE EMBERY E-m-b-e-r-y, she is the immediate past president of the Association, having retired from that position on the weekend, your Honours and to my rear is PHILIPPE SERRA-ESTEVA, that is a hyphenated surname S-e-r-r-a-E-s-t-e-v-a who is the Secretary of the Incorporated Associated, if it pleases your Honours.

PN3

VICE PRESIDENT ROSS: Thank you.

PN4

MR B. McCARTHY: Your Honours and Commissioner, I'm Brian McCarthy and I'm the husband of Rosalie McCarthy who is known as Lee and if I inadvertently call her Lee during the proceedings, I hope you will bear with that. It is important for me to state, on the outset, that I have no qualifications or experience in Law, nor do I have any qualifications or experience in industrial relations matters, but it seemed appropriate for me to represent MRS McCARTHY who is to my right as a matter of commonsense and, I guess, being cost efficient.

PN5

VICE PRESIDENT ROSS: That is fine, Mr McCarthy. Well, the course I propose to take is to take the parties through the submissions that they've made to test our understanding of them and to provide you with an opportunity to say anything additional you wish to say. I note we've got a chronology of the relevant factual events from you Mr Blandy. Mr McCarthy have you seen that?

PN6

MR McCARTHY: Yes, your Honour, I do have a copy and there is no disagreement as far as I'm aware.

PN7

VICE PRESIDENT ROSS: All right. Thank you. Mr Blandy, perhaps if I go to your case first and then I'll hear from Mr McCarthy in reply. As i understand it, the essence of the appellant's case is that the Commissioner misconstrued the basis upon which the motion to dismiss was advanced in the proceedings before him. Either he treated the matter as if it was based on the applicant's status as a probationary employee, within the scope of regulation 30B, when you say, in fact, the motion was put on the basis that Mrs McCarthy was an employee who had commenced employment on or after 30 August 2001 and had not completed the qualifying period of employment referred to in section 170CE sub section 5A at the time her employment was terminated.

PN8

You argue that your motion should have been granted on the evidence before the Commissioner and that you say that the evidence established that Mrs McCarthy commenced employment on 11 June 2002, her employment was terminated on 2 July 2002, some 22 days later and you say that she commenced employment after the provisions in section 170CE sub section 5A came into effect and that her employment was terminated within three months of commencing employment. You also contend that there was no agreement between the employer and the employee which either shortened, increased, or waived the qualifying period of employment.

PN9

On the basis of those facts, you say that the motion to dismiss should have been granted as she was an employee who had commenced employment after 30 August 2001 and had not completed the qualifying period of employment prior to termination. You make, in the course of your submissions, a number of other points which I don't need to go to. Paragraphs 11 to 16 you deal with the interaction between the provisions of the Act and regulations and the Community Services Award, but for the moment I don't need to trouble you about those.

PN10

In terms of remedy, you say we should grant leave and uphold the appeal, we should quash the decision, subject to appeal, and we should dismiss Mrs McCarthy's application for a leave, on the basis that at the time her employment was terminated, she had not completed her qualifying period of employment. Is that the essence of the case as you put it?

PN11

MR BLANDY: Your Honour has put that very succinctly, sir and I wish that I could have condensed my notice of grounds for appeal so succinctly, sir.

PN12

VICE PRESIDENT ROSS: Is there anything you wish to add?

PN13

MR BLANDY: Perhaps just as a administrative matter, your Honour. I came into this matter after your brother's decision was issued, I was not on the record as appearing in this matter and indeed, the association did not become members of my organisation until after the decision was handed down. It is appropriate, in those circumstances, for me to advise your Honours that pursuant to section 170CI(A) that I am not in receipt of a costs arrangement, sir.

PN14

VICE PRESIDENT ROSS: All right. I might also take the opportunity of marking your written submissions, Mr Blandy, is exhibit A1 and I'll mark the chronology of factual events as exhibit A2.

EXHIBIT #A1 WRITTEN SUBMISSIONS FROM MR BLANDY

EXHIBIT #A2 CHRONOLOGY OF FACTUAL EVENTS

PN15

Anything further for me?

PN16

MR BLANDY: Your Honour, if I might just very briefly take you to the decision that was referred to by the respondent employee and appended to my submissions and that is the decision of your brother Grainger, Melbourne 1 May 2002, Andrew Conway v Norman G Clark Australasia Proprietary Limited, print number PR917226 and in particular, paragraph 18 of your learned brother's decision where he referred to the explanatory memorandum for the Termination of Employment Act 2001, which installed the qualifying period of employment provisions and it is contained wholly within paragraph 18, but I think the most important part of that is what is in the fourth paragraph, the qualifying period - - -

PN17

VICE PRESIDENT LawLER: Mr McCarthy, could I just interrupt for a moment. Sorry, Mr Blandy, do you - sorry, do you happen to have a spare copy of that decision?

PN18

MR BLANDY: I do, your Honour, if you'll forgive my back for a moment, sir. Your Honour will have to forgive me, there is a policy within my organisation by someone the use of recycled paper, it is something that I don't subscribe to very often and unfortunately it is on recycled paper.

PN19

VICE PRESIDENT LawLER: That is excellent, that is excellent Mr Blandy. We slaughter enough trees. Thank you.

PN20

MR BLANDY: Yes, your Honour, just going back to it.

PN21

The qualifying period is intended to operate as a default provision, there would be capacity for the employer and the employee to negotiate a different period, provided such agreement is in writing and is entered into in advance of the employment, where the employer and employee agree to a longer period there will still be a requirement that the period be reasonable, having regard to the nature and circumstances of the employment.

PN22

In essence I think and I think your brother Grainger actually might have used the reference "a deeming provision" in that decision, but if not, that is certainly my submission to you, that it is, in fact, "a deeming provision".

PN23

If I could go - - -

PN24

VICE PRESIDENT ROSS: Do you mean by that that the three month qualifying period operates in the absence of a written agreement determined in advance between the employer and employee to either shorten, lengthen or waive the period?

PN25

MR BLANDY: Yes, your Honour and indeed, I'd go as far as suggesting, perhaps somewhat boldly, that it is not something that either an award or an agreement could override. Your Honours, if I could go to the two High Court decisions that I appended to my original primary submissions and I must apologise, I did call them respondents, they should read appellants.

PN26

VICE PRESIDENT ROSS: The respondent in the proceedings .....

PN27

MR BLANDY: Yes. I should have referred to it myself as appellant, your Honour, but - - -

PN28

VICE PRESIDENT ROSS: Mr Blandy, for myself I don't think you need to take me to those decisions, the essence is their authority for the proposition that an award can't be made, validly made in a manner which is inconsistent with the provisions of a statute.

PN29

MR BLANDY: Yes, indeed your Honour, I was simply going to take you to various references in there, the decision is quite long, the references are quite short, but if your Honour doesn't wish me to do that - - -

PN30

VICE PRESIDENT ROSS: By all means give us the page references and - - -

PN31

MR BLANDY: Certainly sir. As your Honours will be aware, this was a majority decision, three of the members of the High Court found in favour of the - I think it was the union, in that matter. The Chief Justice Knox and Gavin Duffy J held against it, but if you go to page 152, Isaacs J decision starts on 152 and then I think, in particular, going to page 157 and it is almost, well it is, I think, the penultimate sentence on that page

PN32

I entirely reject the contention of the claimant that the Arbitration Court can, under its Act, override any provision in the Navigation Act, nor can I find room for such an implication, either in the statutory language or in judicial precedent.

PN33

He went on further on page 159, it is essentially the second paragraph on that page -

PN34

The Arbitration Court can do nothing contrary to Commonwealth Law and if, once it be shown that a claim is not merely different from, but consistent with or contrary to any Commonwealth Law, that claim cannot be validly awarded.

PN35

His last - his ultimate sentence in his decision, on page 160 -

PN36

The two Acts can and are intended to stand and operate together, where not inconsistent - - -

PN37

VICE PRESIDENT ROSS: I think, as you say in your submission, the views of the Members of the Court are at one on the general principle, Chief Justice Knox and Gavin Duffy J, make the same comment on 152 and Stark J, makes the same comment on 164, it is their application of that principle to the facts that was - that led to the division between them.

PN38

MR BLANDY: Yes, and indeed, I think Stark's J phrase or paragraph there is - I've certainly highlighted it in blue as opposed to yellow with the others. It was, I think the strongest comment on that point. The other thing I think your Honours, is that it might explain perhaps how this matter - this error might have occurred, is, if your Honours turn to your appeal book and, in particular tab 3, your Honours will see I included the applicant's or the respondents application for relief at tab 3 and indeed, it seems somehow and I don't know how, but the form 18 that was used, was not the current form, it contained the post 30 August 2001 amendments and that is a possible explanation for how the matter might have been overlooked.

PN39

Your Honours, the only other thing I think whether I could suggest to your Honours, is that perhaps this is a powerful Appeal Bench that has been convened, presided over by the Vice President himself, that it might be - - -

PN40

VICE PRESIDENT ROSS: Two Vice Presidents for the price of one in this instance.

PN41

MR BLANDY: Yes, sir. It might be timely and given that the only decisions on the point that I was able to turn up were in 1922 and in 1968, that your Honours make some comment in relation to the application of Awards and Federal Acts. There is certainly a plethora of Law, in relation to Federal Awards and State Acts, but it would seem very little on Federal Acts v Federal Awards and indeed, Mrs McCarthy urges that upon you, in their submissions when they talk - refer to the DAWS Agreement, the Darwin and Aboriginal and Islander Womens Shelter Agreement 2000, I think it is from memory.

PN42

I certainly also haven't looked at that, I couldn't locate it unfortunately, electronically. It is certainly consistent with my recollection of what was in it and this certainly would be a precedent for a similar matter, I would respectfully submit. Unless there is any other issues that your Honours wish me to take you specifically to. I will of course, rely on my submissions as well. Thank you your Honours.

PN43

VICE PRESIDENT ROSS: Thank you, Mr Blandy. Mr McCarthy, I'll mark your written submission as exhibit R1

EXHIBIT #R1 WRITTEN SUBMISSION BY MR McCARTHY

PN44

and you'd appreciate, it is clear from your submission that you do, but we're not here dealing with the merits or the unfairness or otherwise of Mrs McCarthy's termination of employment, it is a straight jurisdictional question, whether we have power to entertain the application or not. As I read your submission, you say that the Commissioner was correct in concluding that Mrs McCarthy was not a probationary employee, within the meaning of the regulation.

PN45

To that end you make a number of, or Mrs McCarthy makes a number of assertions, which have not been challenged, that prior to 11 June 2002, either Ms Embury or any committee of management member ever indicated, either verbally or in writing that you would be on a probationary period, neither Ms Embury nor any committee of management member, ever indicated either verbally or in writing, prior to 22 June or at the meeting of 22 June that she was on, or would be on a probationary period of employment and similarly there was no indication prior to termination, that she was on a probationary period of employment.

PN46

You also reply on the terms of the Community Services Workers Award, if I use the shorthand and you say that supports the position that Mrs McCarthy was not employed on a probationary period and in particular, clause 4.1.3 of that Award, which says, in essence,

PN47

that all employees other than casual or fixed term employees will serve a period of probation, if the duration of the period is determined in advance, in writing.

PN48

In this case it was conceded that there was no probationary period determined in advance in writing and in essence, that was the basis for the Commissioner's decision. You say that the Award requires any period of probation to be determined in advance and in writing and as this did not occur, therefore, Mrs McCarthy was not employed on a probationary basis.

PN49

You also, you then extend that argument by saying that the expressions "probationary period" and "qualifying period of employment" mean the same thing, they're interchangeable and you refer to the expression "employees serving a period of probation or qualifying period" in section 170CC(1)(a), you refer to regulation 30B(1)(c), using the same expression and schedule 10, the convention, article 2B of which is in the same form. The submissions on this argument that "period of probation" and "qualifying period of employment" are used interchangeably and mean the same thing are developed at paragraphs 14 to 18 at the written submissions.

PN50

The essence of the argument is that, not only do they mean the same thing in the Workplace Relations Act and the Regulations, but also in the Award, so you read the Award as if it is saying that all employees serve a qualifying period, provided it is determined in advance and in writing and, in this case you say, there was no determination in advance and in writing of the qualifying period and therefore no qualifying period applied. Is that the essence of what you're putting?

PN51

MR McCARTHY: Yes, thank you, your Honour.

PN52

VICE PRESIDENT ROSS: Do I take it there is no dispute about the facts that Mrs McCarthy commenced employment with the appellant on 11 June 2002 and her employment was terminated some 22 days later on 2 July?

PN53

MR McCARTHY: There is just a typographical error, your Honour, which I might just refer to before proceeding. When I indicated earlier that there was no dispute in terms of the timing, there is probably a typographical error in that the termination date is referred to as 20 7 but you referred to it earlier as the 22nd. I just wanted to clarify that for the record.

PN54

VICE PRESIDENT ROSS: Yes, I see.

PN55

MR McCARTHY: It is a minor point, your Honour.

PN56

VICE PRESIDENT ROSS: Right. This is on page three of your written submission, para three? That third dot point, the reference to 22 June?

PN57

MR McCARTHY: Yes.

PN58

VICE PRESIDENT ROSS: Is that - what should that be?

PN59

MR McCARTHY: Yes. Thank you, your Honour.

PN60

VICE PRESIDENT ROSS: What should it be, 22 June or another date?

PN61

MR McCARTHY: I've frankly confused myself now.

PN62

VICE PRESIDENT ROSS: No, that is all right.

PN63

MR McCARTHY: We'll get there.

PN64

VICE PRESIDENT ROSS: No, take your time.

PN65

MR McCARTHY: The actual termination date was 2 July and I think I made reference to it as being the 22nd.

PN66

VICE PRESIDENT ROSS: Of June?

PN67

MR McCARTHY: Of June.

PN68

VICE PRESIDENT ROSS: So, where we see 22 June we should put in 2 July.

PN69

MR McCARTHY: Thank you. Thank you for your forbearance.

PN70

VICE PRESIDENT ROSS: No, that is all right. Do I take it you also agree that there was no written agreement between Mrs McCarthy and the appellant, which either set, waived or varied a probation period or a qualifying period of employment?

PN71

MR McCARTHY: Yes.

PN72

VICE PRESIDENT ROSS: The only question I have went to what has been referred to as the DAWS Agreement. I'm not clear what you're asking us to do with that?

PN73

MR McCARTHY: Could you qualify your question a little more, your Honour, please?

PN74

VICE PRESIDENT ROSS: Certainly, you say at paragraph 19 on page six that if we find in favour of the appellant, you ask whether the provision in the Darwin Aboriginal and Islander Women's Shelter Certified Agreement would be equally invalid in respect of its operation alongside section 17CE 5A and 5B. Normally and subject to what you might say, I don't think this would be any different, normally we wouldn't give what might be regarded as advisory opinions, we decide the matter that is before us, because the reason being that the parties to the DAWS Agreement aren't here and they may have another issue they wish to take, so it might be a bit unfair to determine the matter where we don't need to decide that issue, to decide the appeal.

PN75

MR McCARTHY: I understand that. Your Honour, could I perhaps qualify the reason for that being there. That depending on the decision of the Full Bench this morning, or subsequently if you need to delay your decision, that - your decision may well have an impact on other situations where there appears to be a difference in a local award and I use a short term NT SACS Award and the Act and I'm just looking for some sort of clarification, perhaps in the decision that the NT SACS Award and the Act can in actual fact work compatibly rather than contrary to one another and that your decision may have an impact on the situation that you've just mentioned should it arise into the future.

PN76

VICE PRESIDENT ROSS: It seems to be the resolution of the issue won't necessarily - even if we uphold the appellant's argument, it won't mean that the SACS Award or the DAWS Agreement are affected, because they'll still, well, the Award would still operate such that there would be no probation period unless determined in advance and in writing, so, we'd still operate in relation to regulation 30B, so it would still apply to probationary employment.

PN77

The argument here is that a qualifying period of employment is something different and the argument is that the Act says that everyone serves a three month qualifying period of employment, it is separate from probation and that three month period can only be varied by written agreement between the parties. There being no written agreement here, the argument of the appellant is therefore, the three month period applies and your argument is that well, the Award means that the three month period will not apply unless there is a - it is set out in writing and determined in advance of employment commencing.

PN78

So, if we find against you on that argument, it doesn't mean that the Award is overruled, in relation to probation, it would still continue to operate in relation to probationary employment, but the qualifying period of employment operates by force. The Act decides what happens there and the argument here seems to me, is between your argument that probation is the same as a qualifying period, for the reasons you've set out, therefore you read the Award as if it says you can't have a qualifying period of employment unless it is determined in writing in advance, which wasn't the case here.

PN79

The employer appellant says that, no, that is not how you read it. Even if you were right and this might be an extension of your argument, Mr Blandy, but even if you were right and you read the Award as saying "a qualifying period of employment" there wouldn't be any power for the Commission to make an Award that says that which has the effect of overriding a provision in the statute.

PN80

I think that is for competition so, to some extent I don't think it would be invalid is what I'm trying to put, it wouldn't work that way, it would mean that it wouldn't have the effect that you're arguing for, but it wouldn't mean that it would be invalid and I certainly accept that if we accept the appellant's argument, yes, it may well have implications beyond this case and it is quite a complicated area, because you can determine a probation period in advance by virtue of an award provision, but the argument is that the qualifying period of employment is of a different character. Do you have any questions, Mr McCarthy, or is there anything else you wish to add to your submissions?

PN81

MR McCARTHY: Your Honour, I came prepared to highlight some of the points in Mrs McCarthy's submission and with your agreement and understanding I'd like the opportunity to spend about 10 minutes to work through those, in much the same way as Mr Blandy did and again I seek some direction on this. One of the things which I propose to do to try and clarify some of this is to question Mrs McCarthy in the witness box. I have four or five questions for her which might help to clarify and the reason I'm asking that is that, during the jurisdiction hearing, Mrs McCarthy was not given the opportunity to be questioned formally.

PN82

Now, because of my newness to this sort of thing, procedurally I'm unsure as to whether it is appropriate for me to ask for Mrs McCarthy to go to the witness box.

PN83

VICE PRESIDENT ROSS: Mr Blandy, is there any objection to Mrs McCarthy giving evidence, or would you - perhaps if we hear from Mr McCarthy as to the nature of the questions you want to put.

PN84

MR BLANDY: I suspect that I know what they are, your Honours and indeed, section 45 sub section 6 certainly grants you the power to hear and admit further evidence. I think it has actually developed in the respondent employee's submissions in relation to - I think it is paragraph 9, if I'm not mistaken and perhaps expanding on those.

PN85

VICE PRESIDENT ROSS: Yes. Is that what - - - ?

PN86

MR McCARTHY: That is precisely what I was - like to be able to do, your Honour.

PN87

VICE PRESIDENT ROSS: Well Mr McCarthy, it may not be necessary because you're able to - you've made the statements and we will accept them as true and correct, in the absence of Mr Blandy challenging them. Now, he hasn't challenged them so there is no need for Mrs McCarthy to give evidence about those facts. We will accept what you say there about them. I take it you don't challenge, Mr Blandy, there might be an issue about, no doubt you will argue their relevance to the matter that needs to be determined, but as to the factual content.

PN88

MR BLANDY: No, not the factual content your Honour. I won't say any more.

PN89

VICE PRESIDENT ROSS: Mr McCarthy, you wanted to go through some points?

PN90

MR McCARTHY: Thank you, your Honour.

PN91

VICE PRESIDENT LawLER: Mr McCarthy, just before you do. Just to assist me and perhaps clarify the issues that - for my part, I think you need to be addressing in your comments. Do you have a copy of section 170CE?

PN92

MR McCARTHY: No, I don't.

PN93

MR BLANDY: I can give him my one, your Honour.

PN94

VICE PRESIDENT LawLER: Thank you. Can you just have a look at sub section 5A, section 170CE, do you see there that the language, an application under sub section 1, can you just assume that your wife's application to the Commission was an application under sub section 1, must not be made on the ground referred to in paragraph 1A, that is harsh, unjust or unreasonable, which is the ground that is relied upon by your wife, or on grounds that include that ground, unless the employee concerned had completed the qualifying period of employment and the balance of it really doesn't matter and in sub section 5B, the Legislature, the Parliament has given us a definition for a qualifying period of employment for the purposes of sub section 5A, the qualifying period of employment is, then it sets out three disjunctive alternatives.

PN95

You've agreed that there was no written agreement at all and that is part of your case, that there was no written agreement, respective probation or anything else between the Society and Mrs McCarthy. That only leaves paragraph A in sub section 5B of section 170CE and my problem is that, as I read it, that is a direction by the Parliament which we're obliged to give effect to that the qualifying period of employment, for the purposes of sub section 5A, is three months in this case and that an application must not be made on the harsh, unjust, unreasonable ground unless the employee has completed the qualifying period, which is three months.

PN96

At the heart of Mr Blandy's argument, is the proposition that anything that is set in an award or an agreement can't cut down, or take away, from clear words in a statute, because in our system of government, it is the Parliament, elected by the citizens which gets to say, subject to constitutional issues, that is .....by the High Court gets to say what the Law is and when awards are made, they're not made by Parliament, they are made by the Commission pursuant to provisions made by the Parliament. So the thing that you need to focus yourself on is whether or not there is any argument available to you which takes away from the direction that is there from the Parliament in those two provisions I've taken you to.

PN97

MR McCARTHY: Thank you, I don't dispute what you're saying, from a layman's point of view I believe I understand that quite clearly, but if I can respond to what you said in developing the first part of what I'd like to present this morning, then I believe I've covered that particular situation and with your agreement, I'd like to be able to proceed. I have taken that very much into consideration.

PN98

VICE PRESIDENT LawLER: Thank you.

PN99

MR McCARTHY: Your Honours, I refer specifically to section 30B of the Workplace Regulations and that, as you well know, has the heading "Certain Employees Excluded from Requirements for Termination of Employment" and I refer specifically to part 1 part C and the precise words are -

PN100

An employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period as the case might be, is determined in advance

PN101

Now that is the Act as I understand it and that qualifying, or probationary period, according to the Act, needs to be determined in advance and my reason for requesting that Mrs McCarthy go to the witness box was to show that there was no determination of a qualifying or probationary period in advance.

PN102

VICE PRESIDENT LawLER: We accept that and Mr Blandy doesn't seek to dispute that.

PN103

MR McCARTHY: So I come back to the point then, that I'm looking to argue that the Act also requires that a determination is or must need to put in place, in advance of the commencement of employment, the key words "the Act needs to be determined in advance".

PN104

VICE PRESIDENT ROSS: Yes, but Mr McCarthy the regulations are read subject to the Act, they're made under the Act and those regulations are made pursuant to section 170CC of the Act, a different section. Here we're looking at section 170CE 5A, that Vice President Lawler took you to and there is no requirement there that the qualifying period needs to be determined in advance.

PN105

MR McCARTHY: Your Honour, you'll have to appreciate my layman's point of view then I have some great difficulty in understanding then, that a regulation, such as 30B and the section that I've quoted, cannot be taken into serious consideration in imposing the intent of the Act. I really don't understand that the Act, having been qualified by the regulation, that the regulation doesn't come into force.

PN106

VICE PRESIDENT ROSS: It doesn't usually work that way. The regulation doesn't qualify the Act. It is the Act that determines the meaning.

PN107

MR McCARTHY: Nevertheless, your Honour, may I proceed?

PN108

VICE PRESIDENT ROSS: Certainly.

PN109

VICE PRESIDENT LawLER: Mr ..... before you do, in any event, and I agree wholeheartedly, with respect with what the Senior Vice President has said, it is a well established principle in our legal system and is what is called delegated or subordinate legislation, which is what a regulation is, where it is incompatible with the Act under which it is made, then it is void and simply has no effect.

PN110

But in any event, paragraph C that you rely upon, has got the word "if" in it, do you see that, the word if there at the end of the first line, or close to it, so that the paragraph only operates if the duration of the period of the maximum duration, the period has been determined in advance, so that that would be on one view referable to whether or not there had been an agreement between the parties, but in any event the real problem that you face there, is the problem that the Senior Vice President's identified namely that even if this was incompatible with the Act, the Act has to prevail and that is a pretty fundamental principle on our legal system.

PN111

MR McCARTHY: Notwithstanding that, I would still like to proceed.

PN112

VICE PRESIDENT LawLER: Thank you.

PN113

MR McCARTHY: I want to come to the point where the words determine in advance and period of probation or a qualifying period of employment are shown to be very important and I refer your Honours to the decision of Commissioner Grainger in Andrew Conway v Norman Clark PR917226, which a copy has been available to you and without reading the appropriate words fully, there is clear indication there that period of probation and qualifying period are used interchangeably and the actual wording of article 2.2B is that -

PN114

Workers serving a period of probation or a qualifying period of employment

PN115

So I want to develop the argument that period of probation and qualifying period are interchangeable and mean the same thing.

PN116

Notwithstanding what has been said from the Bench this morning, I still would like to take issue with the determination in advance and I refer your Honours to a decision of Commissioner Lewin in Nott, that is Maryrose Nott v ..... PR917712, you also have a copy of that available to you. Commissioner Lewin says and I'll read this quote specifically -

PN117

The following question therefore incidentally arises "what is the meaning of determine" and what is the object of "in advance" where they are used in the regulations. The word "determine" means to have settled or resolved in plain English, to be decided. So a matter, which normally must be considered is, was there a period of probation which was settled, resolved or decided.

PN118

and you will note that I'm - - -

PN119

VICE PRESIDENT ROSS: Which paragraph was that, please? Of Commissioner Lewin's decision.

PN120

MR McCARTHY: It is on page 2, top of the page, your Honour.

PN121

VICE PRESIDENT ROSS: Thank you.

PN122

MR McCARTHY: So what I've attempted to do there, is to indicate the interchangeability of those two phrases I've mentioned and the fact that they both need to be determined in advance and in the same decision, Commissioner Lewin on page 3, your Honour, paragraph 13, states -

PN123

The regulation only operates in relation to probationary periods which have been determined in advance from the commencement of employment.

PN124

I end the quote there. In paragraph 15 of Mrs McCarthy's primary submission and I'll read it if it is appropriate.

PN125

The appellant relies on the operation of 170CE 5A and 5B of the Workplace Relations Act 1996. That part of the Act refers to a qualifying period of employment. It does not use the expression probationary period, however, for reasons set out above I contend that it should be taken to mean probationary period as it applied to my employment. The Act does not now separately define qualifying period with the introduction of 170CE 5A and 5B. It is therefore reasonable to presume, as I do, that this reference to qualifying period means probationary period, as such it is submitted the words "probationary period of employment" in the Award mean the same thing as the words "qualifying period of employment" in the Workplace Relations Act. Therefore I put it to the Full Bench that Mrs McCarthy is not excluded from making application for relief under the Act and it will be shown that no probationary period or qualifying period was determined in advance.

PN126

I want to move now to the Social and Community Services Industry - Social or Community Services Workers Northern Territory Award 1996 and to condense that if you will agree, I'd like to refer to that in future comments as the SACS Award. It is a hell of a mouthful to the moment and a copy of the section of this Award to which I refer, is contained in Mrs McCarthy's primary submission on page 2 of that submission.

PN127

I refer your Honours to clause 4.1 Contract of Employment and in particular to 4.1.2.3 which makes specific reference to the length of any probationary period and to 4.1.3, which we've previously made reference to and had some brief discussion about, which states, and I quote -

PN128

All employees other than a casual or fixed term employee, as defined in this Award, will serve a period of probation if the duration of the period or the maximum duration of the period, as the case might be, is determined in advance and in writing. Therefore, without a determination in advance and in writing, according to that Award Mrs McCarthy was not serving a period of probation. It is important to note that Mrs McCarthy's employer did not provide her with the appropriate documentation as required by this section of the Award. No such documentation exists as Mrs McCarthy should she have gone to the witness box, would have attested. The reality of the Act, as I understand it, is that the Act require probationary or qualifying periods to be determined in advance and the appropriate Award, in the Northern Territory, that is the SACS Award, supports the Act that goes one step further by requiring the probationary period to be determined in advance and in writing.

PN129

Now your Honour, I come back to the point to clarify is it necessary for Mrs McCarthy to go to the witness box, because I do have a series of questions?

PN130

VICE PRESIDENT ROSS: I don't think so, Mr McCarthy, it is accepted by Mr Blandy that - - -

PN131

MR McCARTHY: Does that mean, your Honour, to perhaps cut to the chase a little quicker that Mr Blandy accepts the fact that no documentation, in relation to Mrs McCarthy's employment ever existed or was given to her.

PN132

VICE PRESIDENT LawLER: I think for the purposes of today's argument, he accepts that there was no documentation relevant to today's argument.

PN133

VICE PRESIDENT ROSS: No documentation dealing with probation period or qualifying period of employment.

PN134

MR McCARTHY: Thank you, your Honour. So then in summary, can I state the following - There is no evidence that Mrs McCarthy and NT Friendship and Support agreed in advance, in writing, to a qualifying or probationary period of employment. Mrs McCarthy did not receive any documentation in relation to her employment as required under the NT SACS Award and as a consequence of the above, it is clear that Mrs McCarthy was not serving either a qualifying period or a probationary period, which had been determined in advance.

PN135

And I refer your Honours to the Workplace Relations Act 1996 and specifically to 3, which is the principle object of this Act and part E and I believe I provided a copy of that to you, and I quote part E which says -

PN136

Y providing a framework of rights and responsibilities for employers and employees and their organisations which supports fair and effective agreement making and assures that they abide by awards and agreements applying to them. Mrs McCarthy believes that she was not afforded the rights which her employer should have provided to her

PN137

and in closing, I quote again from Commissioner Lewin, as I have done previously -

PN138

that the terms probation, qualifying and evaluation period are used interchangeably

PN139

and quoting again from Commission Grainger, as I did previously -

PN140

Regulation 30B only operates in relation to probationary period which have been determined in advance of the commencement of employment

PN141

So, your Honours and Commissioner, I put it that the Industrial Relations Commission does have jurisdiction in this matter and the appeal should be dismissed.

PN142

VICE PRESIDENT ROSS: Thank you Mr McCarthy. Anything in reply?

PN143
MR BLANDY: Very briefly, if I may, your Honour. Your brother Eames quite properly found at paragraph 7 of his decision in print PR921935 that a probation period had not been determined in advance. He quite properly found that, the question is, of course, whether or not it was a qualifying period of employment and indeed, he found that, because if you turn to tab 6 of your Honour's appeal book, which is the transcript, your Honour will see at paragraph number 42, PN42, Mrs Embury, in fact, conceded that she couldn't recall whether the notification occurred in advance, but she certainly said, that I certainly said so, on or about the 22nd, which of course would not satisfy the Law on the determination of advance of probation periods aspect, quite clearly so. I don't have anything further, your Honours.

PN144

VICE PRESIDENT ROSS: Nothing further from any parties, no?

PN145

MR McCARTHY: Your Honour, it is probably not appropriate in the sense of normal protocol, but Mrs McCarthy has been through this process for a good number of months now and I seek permission for her to make a summary statement to close the argument.

PN146

VICE PRESIDENT ROSS: Certainly. Yes, Mrs McCarthy.

PN147

MRS R. McCARTHY: I have not had a, sorry, I'm not sure how to address you.

PN148

VICE PRESIDENT ROSS: No, that is fine.

PN149

MRS McCARTHY: I've not had an opportunity to actually answer, but on that meeting of the 22nd, there was no purpose in discussing my rights, we were discussing the organisation and we were setting up the first meeting of the organisation, so in fact, there was actually no conversation.

PN150

VICE PRESIDENT ROSS: No conversation about - - -

PN151

MRS McCARTHY: About any conditions at all.

PN152

VICE PRESIDENT ROSS: Right, I see.

PN153

MRS McCARTHY: And I believe that that needs to be said. I also believe that the Act was not brought in for organisations or people to hide behind after employing people and that there would be thousands and thousands of Australians like me who have worked for many years who believe that anything further that is done on these agreements or acts is there to provide a framework of rights and responsibilities for employees and employers and their organisations, which supports their own effective agreement making. It wasn't brought in to disadvantage thousands and thousands of people who probably have never heard of it.

PN154

And I contend that it is a very serious day in Australia, forget my situation, but when we take away the rights of workers in the country by semantics. Thank you for listening.

PN155

MR McCARTHY: Thank you, your Honour.

PN156

VICE PRESIDENT ROSS: Thank you Mr and Mrs McCarthy. Nothing further? We'll adjourn and reserve our decision.

ADJOURNED INDEFINITELY [10.25am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN SUBMISSIONS FROM MR BLANDY PN15
EXHIBIT #A2 CHRONOLOGY OF FACTUAL EVENTS PN15
EXHIBIT #R1 WRITTEN SUBMISSION BY MR McCARTHY PN44