C2001/6180, Transcript of Proceedings [2002] AIRCTrans 977 (27 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER REDMOND

C2001/6180

APPEAL UNDER SECTION 45 OF THE ACT BY
TRANSPORT WORKERS' UNION OF AUSTRALIA
AGAINST THE ORDER AND FINDINGS OF
COMMISSIONER DEEGAN ISSUED ON 16 NOVEMBER
2001 REGARDING C2001/2909

CANBERRA

10.03 AM, TUESDAY, 12 MARCH 2002

ADJOURNED SINE DIE

PN1

VICE PRESIDENT McINTYRE: Could we have the appearances please?

PN2

MR L. DUFFIN: I appear on behalf of the Transport Workers' Union of Australia.

PN3

VICE PRESIDENT McINTYRE: Thanks, Mr Duffin.

PN4

MS M. McDONNELL: I appear for Australian Business Industrial.

PN5

VICE PRESIDENT McINTYRE: Thanks, Ms McDonnell.

PN6

MR F. GILLINGHAM: I appear for the Master Builders Construction and Housing Association of the ACT.

PN7

VICE PRESIDENT McINTYRE: Thanks, Mr Gillingham. We have received written submissions from the Transport Workers' Union, from Australian Business Industrial, from the Master Builders' Association, and a letter from the ACT and Region Chamber of Commerce and Industry which says that it supports the submissions of the Master Builders. Mr Duffin, this is - - -

PN8

MR DUFFIN: Your Honour, just in relation to that. I have not actually received a copy of the submissions of Australian Business. That may partly be because it was a public holiday in Victoria yesterday. I did not attend the office yesterday.

PN9

VICE PRESIDENT McINTYRE: You have received the Master Builders one?

PN10

MR DUFFIN: I have received the Master Builders one.

PN11

VICE PRESIDENT McINTYRE: Right. Ms McDonnell, what is the position with - - -

PN12

MS McDONNELL: I am very happy, your Honour, to hand up a copy of my submissions that were filed on Friday in accordance with the directions, and I apologise for you not receiving them.

PN13

VICE PRESIDENT McINTYRE: Were they sent to the Transport Workers' Union?

PN14

MS McDONNELL: Yes, they were, yes, by facsimile, yes.

PN15

VICE PRESIDENT McINTYRE: On?

PN16

MS McDONNELL: I think they were either faxed over the weekend or on Monday morning, early Monday morning.

PN17

VICE PRESIDENT McINTYRE: Right. All right. Mr Duffin, would you like an opportunity to read them? They are not all - they are not terribly short.

PN18

MR DUFFIN: Your Honour, perhaps I might read them while my friends are sort of making their submissions, and if I have got any things to say I might bring them up in reply rather than necessarily delay this matter any further. I think that might be the most appropriate course at this stage.

PN19

VICE PRESIDENT McINTYRE: All right then. Well, if you would like to go ahead.

PN20

MR DUFFIN: Your Honour, in the submissions that the Transport Workers' Union provided to the Commission we indicated that this appeal involves the application of the Safety Net Review to some 1500 workers employed within the ACT. These employees are workers whose weekly wages run from $447.20 per week, or $23,250 per annum at the Grade 1 level, to $537.20 per week, or $27,934 at the Grade 9 level of the relevant award. The income of those employees is only supplemented by the wage increases provided through the Safety Net Reviews.

PN21

So, we say that the implementation of a Safety Net Review to that class of workers and the application of the Review to those who are only in receipt of award wages is a matter which is crucial and fundamental. Without payment of the wage increase through the Safety Net Review process this group of workers do not receive any wage increases. They are part of the low paid within the context of this legislation and within the context of the Safety Net Review decisions.

PN22

Now, the decision of the Commissioner at first instance while in accordance with the principles, and we accept that, which emerge from the Safety Net Review, led to a delay of approximately two months in that group of employees receiving their entitlement. Now, we note that what occurred in this case and in this appeal is that the TWU is seeking a procedural variation from that Safety Net Review principles. It is not a substantive variation.

PN23

What we are talking about is not going beyond the scope of that principle, nor is it - nor are we asking for sums of money that are outside the principle. All we are seeking is that the - that there be a variation of the operative date in the relevant award variation and the order of the Commissioner such that at the first available opportunity, that is at the 12 month mark, this group of employees would have received their wage increase.

PN24

And it is our position that in that context this appeal involves the substantial issue of principle associated with the application of the statement of principles. It is our submission, and we made this in our written submissions, that the statement of principles should not and is not intended to operate so narrowly so as to cause ordinary workers to suffer a detriment in this manner.

PN25

For example, by way of a contrast in fact, if a union was seeking wage increases that were outside of the principles, or if they were engaged in industrial action that was for the purpose of getting wage increases which were wholly without foundation in accordance with the principles, it would be one thing. What has happened here is quite the opposite. The union has made the undertakings in accordance with the principles that this wage increase be the relevant wage increase in the context of the case.

PN26

And we say that this Full Bench has the power to remedy this situation where a number of employees who have suffered a delay of two months not through any situation of their own making, not through any situation that they have had any capacity to influence whatsoever, so that we submit that the appropriate course for the Commission to adopt in this matter is to look at the substance of the appeal and the issues associated with it, not necessarily the processes associated with principles.

PN27

Now, in our written submissions we advise that section 45 is obviously the basis upon which this matter proceeds. It is the basis upon which all appeals proceed within the Commission. Section 45(1)(b) provides the TWU with a ground of appeal in this matter. It is our submission that this is an award or order made by a member of the Commission other than an award or order made by consent to the parties to an industrial dispute.

PN28

There was no consent in the terms of the operative date in this matter. Mr Gillingham in his comments in the second hearing date in November advised that there was consent as to one aspect but they would be seeking variation of the proposed date. The TWU maintain its position that 18 September was the appropriate date. So, it is our submission that there is a ground of appeal pursuant to section 45(1)(b).

PN29

We further say that the TWU is a party bound by the award or order and therefore has standing pursuant to section 45(3).

PN30

VICE PRESIDENT McINTYRE: Are any of these points in issue?

PN31

MR DUFFIN: I do not know what - - -

PN32

VICE PRESIDENT McINTYRE: Yes. No, I did not understand them to be, but that there is an award or order from which an appeal lies. In respect to the operative date, that is the only issue, as we understand it.

PN33

MR DUFFIN: I suspect that these matters are not in issue.

PN34

VICE PRESIDENT McINTYRE: Yes. No. It is really a matter for us, is it not, whether Commissioner Deegan made an error.

PN35

MR DUFFIN: That is correct, your Honour, and we say that you can come to that conclusion on the following basis, and I will address this point in our submissions.

PN36

VICE PRESIDENT McINTYRE: Right.

PN37

MR DUFFIN: But we say that you come to that conclusion on the following basis; that the wage-fixing principles are not principles pursuant to or in accordance with section 106(1) which require a Commissioner to follow a Full Bench decision. They are statements of principles where Commissioners are expected to follow them.

PN38

In that context, if they are not principles which bind a Commissioner to follow, a Commissioner by acting in accordance with them will be acting contrary to law. That is the position of Gibbs CJ, and Stevens J in The Queen v Clarkson. Now, on that basis as soon as they exist there is a discretionary decision which has been taken which was not taken in accordance with the law, it was taken in accordance with a set of principles. And that is clearly set out both in the Commissioner's comments in transcript at paragraph 54, and also in the decision.

PN39

Now, the next issue then rightly is whether leave to appeal should be granted, and that is a separate issue, but we say that there was clearly an error if you follow that line of reasoning. That therefore requires that we have to show, one, that there was a discretionary decision which is a question of interpretation of the Act, and two, that that discretionary decision was made only in accordance with the principles and not in accordance with the Act per se.

PN40

And as far as the public interest issues go, we will address those at the conclusion of our submissions on the question of the merits and the grounds of the appeal.

PN41

Prior to doing so, it seems - and Mr Gillingham's submissions also address this issue, the chronology of events in this matter we say is fairly crucial. On 2 May 2001 the Full Bench of the Commission in the Safety Net decision handed down its decision in that case, and I have a copy of that to hand up. This is the reported decision in the Industrial Relations Reports, or the Industrial Reports I think they are, it is 2001/104 IR 314.

PN42

And in that decision a statement of principles was included, as has become the custom. At paragraph 143(c), which is found at page 348 of that decision, there is the discussion that the commencement of award variations that give effect to this decision will be no earlier than the date on which the award is varied, and that was part of what the Commissioner used to make a decision. And then principle 8(a), which is found at page 355, refers to the operative date, it will be no earlier than the date of the variation to the award. Now, those are the principles upon which the Commissioner acted, and in that sense the Commissioner followed the principles.

PN43

Now, on 24 May 2001 the TWU made application to vary the award to include the arbitrator safety net, and we say that this is a relevant issue, and it is important because it demonstrates that the TWU did not sit on its hands in this matter. This was not a situation where the award was just allowed to slip past. You know, many months later we suddenly realised, "That award has gone past."

PN44

VICE PRESIDENT McINTYRE: I do not think anyone is suggesting that it was though.

PN45

MR DUFFIN: No, it certainly seems to be suggested that in one sense this was a problem of the TWU's own making and we do want to sort of address that issue, and certainly that is - - -

PN46

VICE PRESIDENT McINTYRE: Well, there is no dispute that the application was filed on 25 May - - -

PN47

MR DUFFIN: That is correct.

PN48

VICE PRESIDENT McINTYRE: - - - and that it came on for hearing on 27 June.

PN49

MR DUFFIN: That is right also. And during the course of that initial hearing the MBA and the Confederation of ACT Industry both requested the adjournment, which the Commissioner granted, that the Safety Net not - the order not be made at this time because of the award simplification hearings that were occurring before another member of the Commission.

PN50

VICE PRESIDENT McINTYRE: Yes, and the matter got adjourned.

PN51

MR DUFFIN: And the matter got adjourned.

PN52

VICE PRESIDENT McINTYRE: Yes.

PN53

MR DUFFIN: However, there were a number of comments the Commissioner made in that initial hearing on 27 June where the Commissioner said in paragraph 28:

PN54

I'm not prepared to make the order given that the date of effect is more than three months away because if the award is under-going an award simplification process and that actually occurs before that date an order which refers to clauses that no longer exist, particularly in relation to wage rates, could cause great confusion.

PN55

Reading down a little. But she also went on to say at paragraph 30:

PN56

If by 4 September the award has not been simplified or no order has been made in relation to the wage rates or the allowances as a result of award simplification, the matter will be relisted and dealt with on that day.

PN57

She goes on to say:

PN58

But I will make the order if there is no movement on the award simplification matter on 2 September.

PN59

And then there is a discussion about whether 2 September is on a weekday - is a weekday.

PN60

Now, there is a degree of contradiction associates with those two comments. In part it is quite clear that she says:

PN61

Well, it's going to be relisted, and when it is relisted I'll make the order.

PN62

But she also does say:

PN63

If there is no movement in the award simplification matter, I will make the order.

PN64

And that combination of events lead to the adjournment at that time. Now, the matter was relisted by way of a fax sent to the parties on 26 August. And on 31 August a fax was again sent to the parties advising that the listing on 4 September was cancelled.

PN65

Now, Commissioner Deegan in paragraph 5 of her decision states that she maintained contact with a member of the Commission, undertaking the item 51 review of the relevant award. And having been assured that orders consequential upon that process would not be issued, she directed that the matter be relisted for hearing. "Upon issuing" - reading on a little bit:

PN66

Upon issuing the listing, my associate was contacted by Ms Tisdale of the TWU and informed that the 4 September hearing was not required.

PN67

Now, Ms Tisdale represented the TWU at the second hearing, and also referred to that conversation in paragraph 42 where she said that:

PN68

I have not - - -

PN69

VICE PRESIDENT McINTYRE: Sorry, paragraph 42 of?

PN70

MR DUFFIN: Of the second hearing on 16 November 2001. My apologies.

PN71

VICE PRESIDENT McINTYRE: Yes.

PN72

MR DUFFIN: And she states there that she understood that there was an automatic process and that the decision had been made to issue the order in the terms sought unless something else happened. And as such she had not been worried about getting this matter called on and spoken to the associate when he relisted this matter, and assured him there was no need to have another hearing. Now, the simple fact is that that conversation was a lot more detailed than what is merely in those two comments.

PN73

VICE PRESIDENT McINTYRE: How do we know that?

PN74

MR DUFFIN: Well, there are two ways of knowing that. The first is just a mere - a mere thinking or reading of what would be said is, it is frankly not probably for the TWU just to ring up the Commission's associate and say, "Cancel the hearing. It is not needed". It is just, frankly, improbable that that would be the only things that would be said in that conversation. And the second issue which is perhaps slightly put is that this situation developed - the context of the comments by Ms Tisdale were such that what she was saying to the Commissioner was, "Well, I am here and I am aware of what your problem is. And in the context of being aware of what your problem is, I intend to deflect criticism of the Commission or any member of the Commission by saying, `Look, I misunderstood what the process was'".

PN75

Those are - the context of that conversation is quite obvious in the sense of, it is just not logical for the TWU to have rung up the associate and say, "Cancel the hearing" without saying anything further about matters associated with the order or any orders to be issued.

PN76

VICE PRESIDENT McINTYRE: Well, a listing that went out, as you have said, saying the safety-net review 2001 was listed for 4 September.

PN77

MR DUFFIN: That is right.

PN78

VICE PRESIDENT McINTYRE: Some conversation then took place between Ms Tisdale and Commissioner Deegan's associate. And two days later a further notice was sent out cancelling the listing.

PN79

MR DUFFIN: That is correct. And, your Honour, that might be - that would be one thing if it was a regular process for the orders to be issued by any member of the Commission immediately that has occurred. But that is not the case in safety-net reviews. It is frequently the case that parties do not have orders issued on the spot. But they come in the fullness of time, you know. So, it was not a situation where we were concerned about the absence of an order being issued. We were aware, well, there was no movement in the award simplification matter. Nothing had happened in which to change the situation.

PN80

It was quite clear what the Commissioner had said in relation to where any delays would occur in terms of the order being issued, which is that the delays would occur because the clauses of the award might change by virtue of the award simplification process. That had not occurred. There were no changes in the award simplification process. So, that is what we say is relevant in relation to the context of that conversation. And - - -

PN81

VICE PRESIDENT McINTYRE: What do you say was said in the conversation?

PN82

MR DUFFY: I can tell you exactly what was said in the conversation. Ms Tisdale rang up the associate and said - - -

PN83

MR GILLINGHAM: Your Honour, I must object to - - -

PN84

VICE PRESIDENT McINTYRE: But I asked the question I think, Mr Gillingham. I just wanted to hear what the reason was. So, it is only what Mr Duffy - - -

PN85

MR GILLINGHAM: Well, I just rose to say that I object to a second or third party, at least - - -

PN86

VICE PRESIDENT McINTYRE: Yes, well - no, well, that may be the case. One might have thought that an affidavit or something might have been produced.

PN87

MR DUFFIN: In relation to the affidavit issue, it was my intention to call Ms Tisdale had there been a section 107 matter dealt with in this context, and that was in fact one of the requests specifically made.

PN88

VICE PRESIDENT McINTYRE: Yes. Well, that was refused by the President, as you know.

PN89

MR DUFFIN: That is right. Now, what Ms Tisdale says about this conversation was that she rang the associate and said, "There is no need for a listing in this matter because the order can just be issued". And the associate said, "Well, what is the view of the parties?" And she said, "CONFACT has contacted me and said there is no need for this hearing". She did not refer to the MBA, nor did she refer to Australian Business. The associate then said, "Okay. Well, if that is the case, I will cancel the hearing".

PN90

Now, I do not know - as I have said, I was not party to that conversation. That is what Ms Tisdale informs me as to the nature of it - was that she said, "There has been no variation in the award simplification matter. There is no need for the hearing. The order just has to be issued".

PN91

VICE PRESIDENT McINTYRE: But she did not say that before Commissioner Deegan.

PN92

MR DUFFIN: No she did not say it before Commissioner Deegan. And I have explained what her reason was for saying that in that context. I mean, she was in front of Commissioner Deegan saying, "Well, we know what the problem is here, but I do not want anyone else to be put in a situation of, `Well, how did this come about?'" It is - I accept that at first instance that evidence is just not there, you know. I do accept that. But that is happened and that is what we say happened, is that there was, quite frankly, a simple explanation as to why this happened in this way. And it was not a situation where the TWU said, "Well, let us just cancel the hearing, you know. There is no need for it, you know". The situation was, we said, there is no need for it because the order can just be issued.

PN93

VICE PRESIDENT McINTYRE: Still, if that was the case, might not one have expected some follow-up by way of fax from the employer parties accepting that?

PN94

MR DUFFIN: Your Honour, that - I also accept that. And suffice it to say it has led to a change of practices and procedures within my office as to how things might occur in the future. However, notwithstanding that, there are frequently conversations between associates and industrial organisations - - -

PN95

VICE PRESIDENT McINTYRE: Yes.

PN96

MR DUFFIN: - - - not all of which is confirmed by way of a facsimile to anyone.

PN97

VICE PRESIDENT McINTYRE: But here a listing had gone out clearly about the safety-net review. Some conversation took place, and the listing was cancelled. And then nothing happened till November.

PN98

MR DUFFIN: Well, then, nothing happened for two months is, as I said, not an unusual length of time in the context of when orders are necessarily issued. There are circumstances within my organisation where orders have been delayed for quite some considerable time after a decision being made. And that again is in no way meant as a criticism of the Commissioners. It is well understood the extent to which things have to be done. It is just that it took us two months to wait until the order.

PN99

And then we thought, "Well, what has happened here?" At that point we then realised that - we contacted the Commissioner again. No order had been made, so we sought an additional listing, brought the matter back on before the Commissioner, and said, "Well, we thought that this was all sorted out previously". Clearly it has not been. So, therefore we are now looking for the order to be made in accordance with how it was drafted at the initial hearing on 27 June. Now, that essentially is the chronology of this matter.

PN100

As far as the merits go and the merits of the appeal, the issue associated with it is, as I have previously indicated, that at paragraph 8 of her decision, Commissioner Deegan states that:

PN101

It is clear from the decision of the Full Bench in Print PR002001 at paragraph 143(c) that award variations to give effect to the decision will be no earlier than the date upon which the award is varied.

PN102

In one sense the Commissioner should actually be referring I think to principal 8(a) rather than paragraph 143(c), which is part of the body of the decision. But not much turns on that, given that the two issues are essentially the same.

PN103

Now, we say firstly that this is an error of law with respect to a decision of discretion by a member of the Commission. Now, our argument in relation to that is based on the decision in McQueen v Clarkson, and the difference between section 31(1)(b) of the Conciliation and Arbitration Act and section 106 of the Workplace Relations Act. Alternatively it is our submission that this Full Bench of the Commission has the power to vary the decision in section - vary that decision because pursuant to section 106 it is not in the - it is not beholden to the principles if those principles are in fact principles that are made pursuant to section 106 and are therefore binding on individual members of the Commission. I will come to those issues associated with section 106 and section 31(1)(b).

PN104

While we do recognise that the decision of Cole v Allied is the authority governing appeals within this jurisdiction, and that within that decision it was quite clear that an error of law needed to be established prior to the Commission then being capable of exercising its powers pursuant to section 45(7), and Cole v Allied affirmed the decision in House v King as being good authority in relation to discretionary decisions of members of the Commission - so we say that the issues that are traditionally brought up in relation to discretionary decisions, namely that a Commission member - that it is how they get to the decision, namely, whether they took the relevant factors into consideration, whether they did not take relevant factors into consideration, the usual principles leading to the error are relevant.

PN105

So, we accept that the first issue for the Full Bench in this matter is whether there is a discretion associated with the decision of Commissioner Deegan. The second question will be whether there was an error of law in the exercise of that discretion. And it is our submission that should the Commission be against us on the first issue, then that disposes of the appeal. On the other hand, if there is an element of discretion in relation to the first issue, there will axiomatically be an error of law in the exercise of the discretion by the Commissioner if she has only followed the principles and not the scheme of the Act generally.

PN106

Now, the basis upon which we argue this is found in the decision of the High Court in the Queen v Clark. So, we accept that the first issue for the Full Bench in this matter is whether there is a discretion associated with the decision of Commissioner Deegan. The second question will be whether there was an error of law and the exercise of that discretion. And it is our submission that should the Commission be against us on the first issue then that disposes of the appeal.

PN107

On the other hand, if there is an element of discretion in relation to that first issue there will axiomatically be an error of law in the exercise of the discretion, that the discretion by the Commissioner if she has only followed the principles and not the scheme of the Act generally. Now, the basis upon which we argue this is found in the decision of the High Court in The Queen v Clarkson ex parte the Australian Telephone and Phonogram Officers Association. It is reported in [1932] ArgusLawRp 99; 39 ALR 1.

PN108

Now, in this decision there were three sort of conflicting decisions, if you like, between the five members of the High Court. Murphy J's decision is not terribly helpful with respect to this issue on the basis that the issue that Murphy J considered was that the issue associated with wage - with indexation was no longer a live issue and therefore it did not need to consider it to address the merits of the case.

PN109

The case involved an appeal by a union from a decision of a single Commissioner arguing that the Commissioner did not make a decision in accordance with law, but instead in accordance with the wage fixing principles that were in force at the relevant time. The claim involved in essence a substantive variation from the wage fixing principles. Again, we note that the present matter does not involve a substantive variation to the principles. We are not seeking to go outside the dollar terms of this claim in the same way that the Australian Telephone and Phonogram Officers Association, which seems to be an organisation that is long since past in this world, sought so to do. But what we are seeking is a procedural question involving the timing only of the delivery of the Safety Net increase.

PN110

Now, the four remaining judges, Gibbs CJ, Steven J, Aickin and Wilson essentially split two-two on the final issue I will come to. But at the first level they split - they all agreed that if the relevant provision allowed principles which were - sorry, they all agreed that the relevant provision within the Act provided that a Full Bench could make principles which would be binding upon a single Commission member. And I have got copies of the legislation that I would seek to hand up as well.

PN111

Now, this material I have handed up is initially the Conciliation and Arbitration Act (1904). It has got - the initial pages begins at section 31. It has - and it is 31 and continues to the following page, and then following that there is a section on appeals which is preferred to by the High Court in the matter which is at the third and fourth pages. At the fifth page that has been provided to the Commission is the Industrial Relations Act (1988) and section 106 is the relevant provision there. And then the final page is the Workplace Relations Act where section 106 again is the relevant provision.

PN112

Now, in the case involving Clarkson it involved a matter associated with a particular class of employees, namely telephone operators, and a claim that went outside of the wage indexation principles. Now, Gibbs CJ at page 7 of Clarkson in the line beginning - well, line beginning at 10, deals initially with how section 31(1)(b) should be read. And 31(1)(b) reads in the Act provided:

PN113

The power of the Commission to make an award or to certify it under section 28 an agreement making provision for or altering rates of wages or the manner in which rates of wages are to be ascertained on grounds predominantly related to the national economy and without examination of any circumstance pertaining to the work upon which or the industry in which persons are employed except where the provision -

PN114

reading down to the bottom of that -

PN115

except where the provision or alteration gives effect to matters or is in accordance with principles determined by a Full Bench is exercisable by a Full Bench and not otherwise.

PN116

So, the question initially was, did 31(1)(b) operate with national wage cases, or rather the principles following from national wages cases, to prevent an individual Commissioner from making a decision that would be in relation to wages but perhaps not necessarily in relation to wages which were on grounds predominantly relating to the national economy or without examination of the individual circumstances.

PN117

And Gibbs CJ at page 7, the line beginning 10, says - or line beginning 11:

PN118

The first is whether section 31(1)(b) so limited the power of Mr Commissioner Clarkson that he could make an order in respect of the present matters only if it conformed to the wage fixing principles, or in other words, whether an order altering rates of wages in a manner in which contravened the wage fixing principles would be an award altering rates of wages on grounds predominantly related to the national economy.

PN119

It goes on to say at the line commencing 28:

PN120

The grounds on which he was asked to make the increase were predominantly related to the particular position of telephonists rather than to the national economy. Moreover, he proceeded by making an examination of circumstances pertaining to the work upon which the telephonists were employed. His order was, in my opinion, not of the kind referred to section 31(1)(b). That section did not prevent him from departing from the wage fixing principles laid down by the Full Bench in the other cases to which reference has been made.

PN121

So, for Gibbs CJ section 31(1)(b) was a preclusion on an individual Commissioner from acting in certain circumstances, but if those circumstances were not specified in 31(1)(b), or what the case was about was not of 31(1)(b) precluded, then the individual Commissioner was entitled to act in accordance with the Act, and in fact had to act in accordance with the Act, and did not - did not have to act in accordance with the wage fixing principles. That is precisely the point at the bottom of that paragraph on page 7.

PN122

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Duffin, I understand the submission you are making, but I am having a little difficulty reconciling that submission with the submission put on the TWU's behalf by Mr Seal at paragraph 9 of the transcript of 22 June 2001. And in that submission Mr Seal indicates that the TWU application is founded on the May 2001 Safety Net decision. He reiterates that the order that is sought is in accordance with the Safety Net decision and the Commission's statement of principles. I am just wondering whether you can reconcile Gibbs CJ's decision in that respect with the statement made by Mr Seal.

PN123

MR DUFFIN: I can, your Honour, and the issue is, we say, related to how you interpret section 106 in the present Act in the light of Gibbs CJ's comments. Gibbs CJ goes on to say, it should only be in special circumstances that a person should necessarily depart from wage fixing principles. He goes on to say at page 12:

PN124

What did, however, very properly deter the Commissioner -

PN125

this is at paragraph - at line 32 on page 12, he said:

PN126

What did, however, very properly deter the Commissioner from doing so -

PN127

that is departing from the wage fixing principles, or sorry, from making the decision -

PN128

was the principles of wage fixation which had been formulated by the Commissioner which were well established as the policy for the time being of the Commission. No principle of law obliges an individual member of the Commission to gauge on his own account in a review of that policy whenever it is challenged in proceedings before him. On the contrary, it will usually be mischievous to do so. In any regulatory system which provides -

PN129

Sorry, I am actually reading Steven J's appellants, I believe. Stevens J addresses the same issue. I will take you back to Gibbs CJ's comments. But Stevens J addresses the same issue and says:

PN130

In any regulatory system which provides for appeals from the decisions of single members of a tribunal to a multi-member appellate tribunal and despite the absence of any doctrine or binding precedent, a single member should be slow indeed to depart from the decisions of broad principle.

PN131

In essence, go to the Full Bench if you have problems. If what you are seeking to do is depart from the principle at first instance, go to the Full Bench appellate tribunal. That is what Stevens J says. Gibbs CJ makes it even clearer on page 10 where he says, commencing at about line 39:

PN132

The general duty of the Commission to determine particular disputes does not require an individual Commissioner to regard himself as bound to consider for himself whether he should depart from a principle which a Full Bench has formulated. It would lead to chaos if each individual Commissioner constituting the Commission was required to decide for himself whether he should follow and apply the principles laid down by a Full Bench.

PN133

Then at page 11 at line 8 says:

PN134

In the present case if an application be made to the Full Bench under section 35(3) -

PN135

which is the appeal provision of the Conciliation and Arbitration Act -

PN136

the Commission, in deciding whether in its opinion the matter was of such importance and in the public interest an appeal should lie, would have been able to consider whether or not in the circumstances there ought to be a departure from the wage fixing principles. On such an application, a submission by the prosecutor that there should be a departure from the principles would have been given such consideration as the Commission decided it warrant.

PN137

Now, Mr Seals comments at paragraph 9 are - this draft application, or this draft order that we are presenting to the Commission is entirely in accordance with the principles of wage fixing. That is what we are - as set down in the May 2001 decision. This is not a case like Clarkson where we are actually seeking to depart from the scheme in terms of the actual quantum. What we are seeking to do is depart from the scheme as laid down by the principles in relation to the timing.

PN138

And that issue, we say is set down there by Gibbs CJ as being, "Well, no individual Commissioner should be making that decision". You know, they should be expected to follow principles. However, the appropriate course for a union in that situation is to say, "You should go to the - use your appeal mechanism and ask another Full Bench to deal with that issue for you".

PN139

And that is precisely what we are doing. We are using the appeal mechanism to try and remedy what we say is an error only - is an error of law as a result of the processes that we have described, the effect of which is to delay to 1500 transport workers who are only on aware wages the Safety Net review for a period of two months. That is the case. We are not saying, "Well, last year it was the $13, $15 and $17 increase, and we are actually - we are actually not trying to accept that. What we are after is a 10 per cent increase for all transport workers on this award". We are just trying to get that timing issue.

PN140

VICE PRESIDENT McINTYRE: It is all part of a package thought, is it not, Mr Duffin. The Full Bench decision was an increase of a certain amount and various conditions including not operative earlier than the date the awards varied. And had the matter come on before 18 September, we would not have been here. It is only because the hearing got postponed and it did not surface again until November.

PN141

MR DUFFIN: Your Honour is correct in those comments. Obviously if the matter had have come back on on 4 September or if everyone had been fully cognisant of exactly what was going to happen, well, that would have been - it would have obviated any need for these proceedings. As far as the issue of the package goes, well, yes that is true, although it is worth noting that the Commission last year said that the period - the time period between wage increases no longer has to be 12 months, provided there are arguments for that. And there are certain preconditions that have to be met in those circumstances.

PN142

So, yes that is true. It is certainly a kind of a package. And that in itself we say - and both Gibbs CJ and Steven J I think also say this - that is an issue of whether you decide to grant leave to appeal in the public interest. I mean, it may be that - although we say there are strong grounds for granting leave to appeal in the public interest - but those are public interest issues. Whether this package should be departed from in any individual case.

PN143

VICE PRESIDENT McINTYRE: If it is all right to depart from the operative date, it might be all right to depart from other aspects of it.

PN144

MR DUFFIN: That - look, on this submission, that would be true, except it would be another Full Bench that would be making a decision, it would not be an individual Commissioner. And the scheme of the Act provides Full Benches with the capacity of making their own decisions and making decisions which are not necessarily consistent with other Full Benches. That is not to say that that is something that should be encouraged. And indeed I would not be making that submission to you. What I would say though is that, you know, an individual Full Bench has the capacity to do that.

PN145

Now, the issue before the court in Clarkson dealt with that section 31(1)(b) provision. And the Industrial Relations Act, when it was introduced to repeal the Conciliation and Arbitration Act, effectively renamed certain sections and made variations to aspects of them. And section 106 was the new version of section 31. They both have the similar titles, "Certain matters to be dealt with by Full Bench". Now, section 106 in the Industrial Relations Act, section 106(1) was set out in very similar terms to section 31(1)(a) through to (e) so that the making for provision of - or the alternation of standard hours of work, wage rates on national grounds, etcetera, are largely identical as between 31(1) and 106(1).

PN146

Section 106(2) provided that the power to make an award was exercised, although only by a Full Bench in certain situations. And those certain situations are set out in 106(2) as being:

PN147

in a situation in the opinion of a Full Bench and a matter before the Full Bench is a matter to which this section applies.

PN148

I must say it is a very elegantly drafted section.

PN149

In the opinion of the president, a matter before the Commission constitute otherwise and as a Full Bench in a matter to which this section applies. The power of the Commission to make an award in relation to the matter is exercisable only by a Full Bench unless the contents of the award or agreement give effect to determinations of a Full Bench or are consistent with principles determined by a Full Bench.

PN150

So, again, what is being said there is, "Is there a jurisdictional point?" A jurisdictional point is that:

PN151

Any individual Commission Member or -

PN152

Sorry -

PN153

Any individual Commission Member is limited in their jurisdiction to give effect to determinations of a Full Bench or to make decisions which are consistent with principles determined by a Full Bench if those provisions are the case or the application deals with the provision set out in section 106(1).

PN154

And in that sense the Industrial Relations Act is made in very, very similar terms to what was in the Conciliation and Arbitration Act. And accordingly the decision we say in The Queen v Clarkson is almost replicated in that. Now, in the Workplace Relations Act, which was on the following page, section 106 is actually dealt with in a slightly different manner. It states that:

PN155

After the commencement of this section, a Full Bench of the Commission may establish principles about making or varying of awards in relation to each of the allowable award matters.

PN156

Section 106(2):

PN157

After such principles if any have been established, the power of the Commission to make or vary an award is exercisable only by a Full Bench unless the contents of the award give effect to determinations of a Full Bench made after commencement of the section or are consistent with principles.

PN158

The question then is, in essence - if the principles that arise from the Safety Net Review are principles pursuant to section 106(1), an individual commission member cannot depart from them. They are limited in their jurisdiction in that respect. On the other hand, if they are not, the issue of Clarkson obviously stands up. And finally, irrespective of the issue of Clarkson, another Full Bench is capable of making a decision which is not giving effect to determinations or is consistent with principles established by a Full Bench.

PN159

Now, it is our submission that what is done by way of the principles in the Safety Net Review case is not - are not principles which are matters about each of the allowable award matters, or indeed in relation to each or any of the allowable award matters. What they are are principles giving effect to the Safety Net Review, and pursuant to section 88A and 88B of the Workplace Relations Act and the objects generally, what they are are principles which deal with how the safety net is to be maintained and ensured.

PN160

We make that submission on the basis that the principles which would be established by the Full Bench in the Safety Net Review we would expect them to say these are principles pursuant to section 106 in relation to this. There is no reference to 106 within the review decision at 2001, and I have also examined the review decision of 1997 which was first - was the first review decision upon which the Workplace Relations Act was founded.

PN161

That decision does refer to section 106 on a couple of occasions but does not say the principles are set out as being principles pursuant to section 106. In fact what it actually - there are references to parental and casual leave matters where they talk about the issue of future section 106 cases associated with award simplification. What the review is about, it is about the doing what is required by section 88A and section 88B which is the maintenance of an award Safety Net.

PN162

VICE PRESIDENT McINTYRE: But that is done by adjusting - - -

PN163

MR DUFFIN: That is true.

PN164

VICE PRESIDENT McINTYRE: - - - wage rates.

PN165

MR DUFFIN: In part. There are other principles which deal with - for example, I think there is a principle that deals with a 38 hour week issue.

PN166

VICE PRESIDENT McINTYRE: Yes.

PN167

MR DUFFIN: But - - -

PN168

VICE PRESIDENT McINTYRE: But basically it deals with the Safety Net or whichever - - -

PN169

MR DUFFIN: And allowances.

PN170

VICE PRESIDENT McINTYRE: And - with your money amounts.

PN171

MR DUFFIN: Yes. Yes, that is right. But notwithstanding that you would expect that to be made explicit within those terms if that was what the intention of that was.

PN172

VICE PRESIDENT McINTYRE: Well, they have been the principles for years now, have they not, excepting that this one does not say they are made under section 106? I imagine the earlier ones did not refer to the earlier 106 or any other section.

PN173

MR DUFFIN: No, the earlier section made it explicit what was being dealt with. It said national - I mean, in essence it dealt with issues associated with the national economy making provisions for altering rates of wages and the manner in which rates of wages are to be ascertained on grounds predominantly related to the national economy and the examination of any circumstances pertaining to the work upon which, or the industry in which persons are employed, or making provisions for or altering a minimum wage that is payable etcetera.

PN174

Now, that is made quite explicit there as to what - what is being constrained and what sorts of - that decisions made by an individual Commission Member are jurisdictionally restricted, if you like.

PN175

VICE PRESIDENT McINTYRE: But one of the allowable award matters is rates of pay generally.

PN176

MR DUFFIN: Yes, it is, and if it could be said that the principles from the Safety Net Review were principles pursuant to section 106 and therefore section 89(2)(d) I think it is - (c).

PN177

VICE PRESIDENT McINTYRE: (c), yes.

PN178

MR DUFFIN: That might be true. But you would expect there to be an explicit recognition of that. And that is not there. All that is said is, well, this is the safety net review for 2001, and the principles deal with that issue. Now, in once sense I have dealt with the issue which then flows from that. But the relevant issue is if a decision is made, if those principles are not pursuant to 106(1), an individual Commissioner can depart from those principles, although should be reluctant and loathe to do so. If they only make their decision in accordance with those principles, then Gibbs CJ at page 10 deals with that issue. And he says at page 10 that - or, sorry, rather at page 9, Gibbs CJ states that:

PN179

There is a general principle that a tribunal which is called upon

PN180

This is at lines 37 through to 40 -

PN181

There is a general principle that a tribunal which is called upon to exercise a discretion does not perform its duty if it acts in blind obedience to a rule or policy that it had previously adopted.

PN182

So, that is the error of law that exists. If blind obedience is given to a policy which a tribunal adopts, that is an error of law.

PN183

VICE PRESIDENT McINTYRE: Sorry, Mr Duffin, what page, what line was that again?

PN184

MR DUFFIN: Sorry. That is line 37 on page 9.

PN185

VICE PRESIDENT McINTYRE: Yes, thank you.

PN186

MR DUFFIN: And the Commissioner at paragraph 54 of the transcript, which is on the second occasion that the matter goes before the Commission, which is on 27 November, does say:

PN187

But given the statement of principles, I am not in a position to make the award come into operation any earlier than today's date.

PN188

And that is also reflected in paragraph 8 of her decision. So, on that basis we say that that is where the error of law is.

PN189

VICE PRESIDENT McINTYRE: You say the decision - the reason for the decision was that Commissioner Deegan regarded herself as bound.

PN190

MR DUFFIN: That is correct.

PN191

VICE PRESIDENT McINTYRE: Yes.

PN192

MR DUFFIN: And both Gibbs CJ and Steven J also go on to say, "Well, that is what you should expect them to say. You should expect them to be bound". And if that occurs, the appropriate course for the union is to deal with it by way of appeal, it is not to deal with it way of saying, well, the Commissioner should depart from it at first instance. It is a sort of a strange decision in that regard in that the - those two members of the High Court saying, "Well, an individual member of the Commission should follow principles, but by doing so, they will also be making an error of law". And then it is a question for the appeal Full Bench to make a decision or determination as to whether that error of law is something that should be remedied in the facts before it.

PN193

It is clearly we would submit an unusual and somewhat strange reasoning process, although it has - it has the merit of saying, "Well, the Full Bench makes it decision in accordance with both section 45 - or section 35 as it then was - and section 45(2). So, it can make its decision to say, "Well, notwithstanding the issue of whether there has been an error of law or not, the public interest may say that principles - there is no reason to depart from the principles. So, an error of law can exist. Public interest may say, "Well, leave should not be granted and section 45(7) remedies not issue in those circumstances".

PN194

And the way we put the public interest issue is that there is a serious question associated with how Safety Net Review principles do bind or should bind individual members of the Commission. This case, while on what might be regarded as a technical point of, "Should the payment be made at time (a), time (b) or time (c)?" it is still associated with, "Well, should an individual commissioner be expected to follow?" "Yes", we say, "that is clear from the High Court. But in what circumstances can a Full Bench depart from that general proposition?"

PN195

Now, it may be - it may be that that is an issue, notwithstanding the fact with the relative rarity which appeals from Safety Net decisions may occur. But it may be a real issue of what a Full Bench should be doing by way of guidance to other full benches. So, we say that there is a serious question associated with that. We also say that there is a serious question associated with the discretion that exists in relation to individual commissioners and pursuant to section 106 and how section 106 interacts with Safety Net Review decisions. And we say that that is a significant ground of itself.

PN196

The final reason almost takes me back to the beginning, which is, well, we say this is a matter of great importance to 1500 employees who are amongst the lowest paid in the ACT. They are certainly amongst - they are certainly amongst the lowest paid in the context of the Safety Net Reviews and how those provisions have been interpreted within the scheme of the Act generally. So, we say that those grounds are all issues that should encourage the Full Bench to grant leave on the question of section 45(2).

PN197

As I said, I have not had the opportunity to read the submissions of Australian Business Industrial. I will do so. However I did want to just raise one small issue in relation to the submissions of the MBA at this point, which is that the MBA has in its submissions raised the issue of the section 107 application and said that on the basis of the president, dismissed that application on public interest grounds, so should this Full Bench.

PN198

We would say, and indeed do submit to you, that there is no necessary relationship between those two actions. The president was not in a position - other than in accordance with the material sent to the president requesting the section 107 application - in a position to know what the nature of the appeal was in that context. And they are, notwithstanding the similarity of issues, they are slightly different questions of fact and law.

PN199

Finally, if you were to find in our favour on both the appeal and the leave to appeal issue, as far as the remedy we would be seeking would be the operative date of the order of Commissioner Deegan be in accordance with the draft order as initially proposed, which is 18 September 2001 unless the Commission has got further questions.

PN200

VICE PRESIDENT McINTYRE: Just going back to one thing I raised at the beginning, Mr Duffin, that is the fact that you have not read the submissions of Australian Business. It probably would be a good idea if we gave you an opportunity to do that. So, if we were to adjourn for a few minutes, you could do that and then let us know if there is anything you wish to raise arising from them.

PN201

MR DUFFIN: Certainly, your Honour.

PN202

VICE PRESIDENT McINTYRE: All right. We will just adjourn for a short time.

SHORT ADJOURNMENT [11.13am]

RESUMED [11.25am]

PN203

VICE PRESIDENT McINTYRE: Yes, Mr Duffin.

PN204

MR DUFFIN: I just have a few comments in relation to those submissions. Paragraph 6 in relation to the submissions the respondents deals with the grounds of appeal, and perhaps in retrospect it was right of me to have dealt with that as an initial matter. We do continue to say that section 41 - 45(1)(b) is the basis upon which we bring that appeal.

PN205

We note that paragraph 16, 17, 18 deal in essence with what we have been saying in relation to the issue of discretion and how it is to be applied in relation to this sort of matter. The remaining point though is almost that we would have inserted paragraph 19 which would have said, or 18A rather, which would have said, and Gibbs CJ and Steven J go on to say the appropriate course to adopt is to pursue a matter pursuant to section 35(3) which in the present context would be section 45.

PN206

As far as the cost impost for employers at paragraph 25, this in essence has been a windfall for employers. It has not been a question of anything other than that. And although it may now be a cost impost it has been essentially a means by which they have saved two months worth of wage increases. Other than that although I have read my friend's submissions there is nothing additional that I would wish to comment on at this stage.

PN207

VICE PRESIDENT McINTYRE: All right. Thanks then, Mr Duffin. Ms McDonnell and Mr Gillingham, we do not need to trouble you in this matter. It is our decision to refuse leave to appeal. We will give our reasons later. We will now adjourn.

ADJOURNED INDEFINITELY [11.28am]