C2003/45, Transcript of Proceedings [2003] AIRCTrans 1169 (1 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT2024
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE

C2003/45

APPEAL UNDER SECTION 45 OF THE ACT
BY SEALCORP HOLDINGS LIMITED AGAINST
THE AWARD [AW871022] MADE BY
COMMISSIONER RAFFAELLI AT SYDNEY
ON 19 FEBRUARY 2003 IN C2002/4331
[PR297950]

MELBOURNE

3.00 PM, MONDAY, 17 MARCH 2003

THIS HEARING WAS CONDUCTED BY
VIDEO CONFERENCE IN MELBOURNE

PN1

MR J. BLACKBURN: I seek leave to appear on behalf of Sealcorp.

PN2

MR P. GARDNER: I seek leave to appear and with me in Melbourne is MS M. MALONEY and appearing in Western Australian also for the FSU is MS C. GLEN.

PN3

JUSTICE GIUDICE: Well, leave is granted is each case. Mr Blackburn.

PN4

MR BLACKBURN: Yes, thank you, your Honour. Your Honour, the sequence of events in this matter can best be looked at I think - does your Honour have the appeal book before you?

PN5

JUSTICE GIUDICE: Yes, I do, thank you.

PN6

MR BLACKBURN: At tab 10, there is an exhibit that was tendered by the Finance Sector Union in the proceedings before Commissioner Raffaelli which was FSU9 and it is found at tab 10 of the appeal book and it sets out a chronology of events which broadly we don't take issue with. What occurred in this matter is initially that the FSU served a log of claims on 20 August 2002, the matter was listed before the Commission in September 2002 and a dispute was found and at that time the Commissioner directed the parties to confer.

PN7

The union then says that it wrote to Sealcorp on 18 October, in fact Sealcorp didn't receive the letter at that time though we have subsequently sighted a copy of it. Moving ahead, there were however discussions via teleconference, at paragraph 8, which were held between the parties on 19 December 2002 and that was attended by various representatives of Sealcorp and the FSU and the Chamber of Commerce. And at paragraph 9, at the conference call, Sealcorp said it would not consent to being roped into the St George Bank Employees Award as the union had indicated was its intention and sought information about, among other things, what would be the union's attitude to a Sealcorp specific award or an enterprise agreement negotiated with the WA branch.

PN8

But it was understood that it would be a Federal certified agreement. Paragraph 10, arising from that teleconference, it was agreed that the FSU would respond to the - that Sealcorp would follow up the questions in writing and the FSU would respond to the company's questions including the FSU's attitude to the making of a specific award and/or enterprise agreement with Sealcorp employees.

PN9

Now, that as we will later indicate, is of some relevance because the point there is that Sealcorp approached the union about the possibility of a certified agreement before the service of the bargaining notice. Now, further to that, the Chamber did write, on behalf of Sealcorp, to the union on 7 January seeking the union's view on negotiating an industrial instrument with Sealcorp specific to Sealcorp, for example, an enterprise award or a certified agreement and the union responded on 16 January. And the union's response is contained at tab 5 of the appeal book.

PN10

And broadly in there the union is a bit unequivocal - sorry, a bit equivocal about whether it will enter into negotiations or not. It simply says word to the effect that it was still considering - this is at page 10 of the appeal book, it was still considering the best way to progressing an enterprise agreement should that then be appropriate. Now, following that, at paragraph 14 of a chronology, on 23 January the - Sealcorp filed a notice of initiation of bargaining period and served on it on the union on the same day and a copy of that is contained in the appeal book also.

PN11

And then, at paragraph 15, the bargaining notice having been served on 23 January, there was a report back before the Commission on 30 January and at that time the union re-stated its intention to have Sealcorp roped into the St George Bank Award and after hearing the submissions of the parties including being apprised of the existence of the bargaining notice, the Commission issued a number of directions including firstly, that the parties were to hold further discussions with a view to resolving their differences.

PN12

Just - I interpolate at the moment, your Honour, that the reference to paragraph 87 of the transcript, in my view, it ought to be a reference to paragraph 103, I am not sure if there were two versions of the transcript but I think that should be 103 and then Commissioner Raffaelli set down the following directions and the union has accurately quoted the Commissioner's words in transcript. Those directions were set down as to and I quote:

PN13

The filing of submissions and witness statements in respect to the operation of the Act particularly section 170N in light of the bargaining period.

PN14

That is how his - the Commissioner expressed the requirement for directions and so they were directions that were concerned with the filing of submissions relating to 170N and not the filing of submissions as to the content of any interim awards that one - be able to be arbitrated. And those directions required the union to serve its submissions and witness statements by 27 February, Sealcorp to respond by 20 March and the union to then respond by 27 March.

PN15

And the final reference there to paragraph 90 it should I think be a reference to paragraph 106 of the transcript so there was a timetable of directions set down and Sealcorp proceeding on that basis. Now, following 30 January, on 7 February, as set out at paragraph 17, Sealcorp offered AWAs various employees. As it turned out those AWAs contained a provision which required employees to maintain the confidentiality of those AWAs and therefore they could not of been approved and a fresh offer of AWAs was sent out on 13 February.

PN16

And, as the union says there, as Sealcorp had gone out and offered the AWAs, it then wrote to the Commission on 13 February seeking to have the matter urgently re-listed. Your Honour, what happened after that was that on the same, 13 February, Commissioner Raffaelli issued a notice of listing, 13 February was the Thursday, and he issued the notice of listing setting the matter down for 11 am the first time on the Monday so in effect one clear working day's notice. On the same, 13 February, Sealcorp - - -

PN17

JUSTICE GIUDICE: What is the significance of your reference to one clear working day's notice?

PN18

MR BLACKBURN: Well, that is - it comes to the procedural fairness point, your Honour, in terms of the amount of notice that was provided and also the rules in relation to how much notice ought to normally be accorded parties so it is a procedural fairness point.

PN19

JUSTICE GIUDICE: I see so it is your position that that amount of notice is insufficient.

PN20

MR BLACKBURN: Yes, yes, insufficient for the preparation of the case which Sealcorp wished to put.

PN21

JUSTICE GIUDICE: Yes.

PN22

MR BLACKBURN: Now, on that day, 13 February, having received the notice of listing, Sealcorp's agent contacted the Commission to find out what was the purpose of the hearing given that directions had previously been set down which went into late February and late March, the filing of submissions. The Commissioner's associate referred Sealcorp to the union. Sealcorp contacted the union on the same day and received no clear answer from the union as to what it would be seeking from the hearing.

PN23

So on 14 February, the following day, Sealcorp wrote to the Commission with a copy to the union saying that it had received the notice of listing and on advice from Commissioner Raffaelli's associate, Sealcorp had contacted the union on 13 February to identify the purpose of the hearing as well as to obtain clarification as to the outcome sought by the union and the union had responded in that phone call that it had not determined what it was going to seek from the hearing and Sealcorp said, in the circumstances, Sealcorp may require the matter to be adjourned after hearing from the union to enable it to obtain advice about further instructions.

PN24

As at 14 February, your Honour, Sealcorp had not be able to obtain any indication from the union as to what it would be seeking in the proceeding listed for Monday the 17th. The union did send a letter to Sealcorp, they sent the letter on Sunday 16 February indicating that they would be seeking the making of an interim award in the proceeding and of course Sealcorp's agent didn't receive that letter until the Monday morning which was the morning of the hearing. Also, a few minutes before Sealcorp's agent was due to leave - - -

PN25

JUSTICE GIUDICE: Mr Blackburn, where is this information recorded?

PN26

MR BLACKBURN: The - - -

PN27

JUSTICE GIUDICE: The chronology you are now giving me, where is that?

PN28

MR BLACKBURN: It is not, your Honour.

PN29

JUSTICE GIUDICE: Well - - -

PN30

MR BLACKBURN: It is recorded in the transcript, there is reference to it in the transcript.

PN31

JUSTICE GIUDICE: Yes.

PN32

MR BLACKBURN: It was all put before - - -

PN33

JUSTICE GIUDICE: Yes.

PN34

MR BLACKBURN: - - - Commissioner Raffaelli and I am happy to go to that.

PN35

JUSTICE GIUDICE: Yes, yes, no, that is all right, I am not doubting it, I am just trying to follow where - - -

PN36

MR BLACKBURN: Yes.

PN37

JUSTICE GIUDICE: - - - it has come from. You are summarising what was put on behalf of your client?

PN38

MR BLACKBURN: Yes, I am, yes.

PN39

JUSTICE GIUDICE: Yes.

PN40

MR BLACKBURN: And what in fact occurred after the end of the chronology that the union put in.

PN41

JUSTICE GIUDICE: Yes.

PN42

MR BLACKBURN: So that in fact Sealcorp only became aware of the purpose of the hearing and what the union actually hoped to achieve in the hearing on the Monday morning which was a few hours before the hearing commenced. And a few minutes before the hearing commenced Sealcorp received a list of authorities from the union. Your Honour, if I can go to the transcript of the proceedings which is found at tab 15.

PN43

JUSTICE GIUDICE: Mr Blackburn, I may have missed it, is there any indication of when the Commissioner became aware that an interim award would be sought in that hearing?

PN44

MR BLACKBURN: No, your Honour, I - we weren't party to the original letter or communication from the union to the Commissioner seeking to have the matter brought on at short notice and - that led to the listing so we don't know what was said there. We do know that when Sealcorp's agent contacted the Commissioner's associate to ascertain the purpose of the hearing and what would be sought, the associate wasn't able to tell Sealcorp and Sealcorp was referred to the union and the union indicated that it hadn't determined what it would be seeking from the proceeding so that was as at the 13th and the following day was a Friday.

PN45

Sealcorp received nothing on the Friday and wrote to the Commission on the Friday indicating that its inquiries with the union had failed to elicit a response as to what the union would be seeking so it was only on the 16th, which was a Sunday, the union wrote to Sealcorp and to the Commission indicating that it would be seeking an interim award. Having said that, your Honour, the union had previously indicated in earlier hearings that it would seeking an award which effectively was to rope in Sealcorp into the St George Award but there was no indication, in view of the directions which had been set down, what it would be seeking on - that it was seeking that award on that day.

PN46

Your Honour, the matter then proceeded before Commissioner Raffaelli on 17 February at 2 o'clock Eastern time and 11 o'clock Perth time. Ms Maloney for the union then proceeded to state her case and then at page 215 of the appeal book, which is paragraph 227 of the transcript, Ms Thompson who was representing Sealcorp said, "Sorry, sir", I think it is first that Ms Thompson spoke during the matter, she said:

PN47

Sorry, sir, could I interrupt at the point, sir, we have sitting waiting to see what it is that Ms Maloney is seeking from today' proceedings. Sir, am I to understand that Ms Maloney is now going to argue her case in relation to demonstrating that the bargaining notice is not finished?

PN48

Because Ms Maloney had, to that point, indicated that she was going to try to argue that the bargaining notice was a sham and therefore the Commissioner was able to proceed to make an award. At paragraph 228, Ms Maloney says:

PN49

Yes, sir. Sir, we advised the company in writing -

PN50

that would have been on the Sunday -

PN51

... that it would be our intention for the making of a safety net award in order to have the Commission exercise its arbitral powers to proceed without application. We need to demonstrate to the Commission that there is no jurisdictional bar.

PN52

And at paragraph 229, she says:

PN53

Now, we made it clear to the company, yes, in our correspondence, as we made it clear throughout these proceedings that we would be seeking the making of a safety net award.

PN54

Ms Thompson says, at 230:

PN55

Sir, we certainly did receive that correspondence. We received it this morning -

PN56

this is the Monday. Of course it had come into the office on the Sunday.

PN57

And it said that the union was seeking to continue with proceeding with the roping-in award. Sir, the matter regarding whether the bargaining notice ...(reads)... and Sealcorp has been operating under the Commission's instructions that those matters and union submissions due by 28 February, sir, and Sealcorp's response by 20 March.

PN58

Now, the Commissioner then says, at the bottom of the next paragraph, 231:

PN59

But how does the bargaining period fit in with the company's intention to proceed down the AWA path?

PN60

And Ms Thompson says:

PN61

Sir, Sealcorp from the outset, has made it clear that it wishes to pursue an agreement on its terms which suit its circumstances.

PN62

And later, at the end of 232:

PN63

Sealcorp does not consider the issuing or offering of AWAs to its staff outside of the issues which may arise through negotiation ...(reads)... and in that case the certified agreement, if one is reached, will cover those employees.

PN64

The Commissioner then says, at 236:

PN65

Yes, except that you are the one seeking agreement, not the union and your notification says that you are seeking the agreement with the union to be registered ...(reads)... seems as if it is a little, isn't it?

PN66

And the Commissioner, at paragraph 238 says, "Well, which is it?"

PN67

Sorry, Ms Thompson says, "Well, sir, we would say not."

PN68

And the Commissioner then says, "Which is it?"

PN69

And Ms Thompson says, "Sorry."

PN70

And the Commissioner, at paragraph 240 says:

PN71

You can choose whether you want AWAs or division 3 agreements but you can't have both.

PN72

Your Honour, we say that was a fundamental misapprehension by the Commissioner and was one which underpinned his decisions or his finding that the bargaining notice was a sham because it really all comes back to this proposition in the Commissioner's mind that Sealcorp couldn't have both and by offering AWAs obviously indicated in the Commissioner's mind that the bargaining notice was a sham.

PN73

JUSTICE GIUDICE: Well, is what the Commissioner was saying that having sought to reach an agreement with the union and then having participated, in one way or another, in the establishment of a program for determining the roping-in application and the question of 170N, that the - Sealcorp appeared to have changed its tack in an inconsistent way by offering AWAs. Was that what was going on here?

PN74

MR BLACKBURN: That may have been part of what is - what the Commissioner had in mind, your Honour. It may be that he also felt affronted by Sealcorp's actions because they had been before him a week or so - on 30 January and then they had issued the AWAs on 7 February and had not told him on 30 January that is what they were proposing to do so there may be a sense of - some suggestion that Sealcorp's conduct was inappropriate.

PN75

In fact later on the Commissioner says precisely that but clearly, yes, he did regard the offer of AWAs as totally inconsistent because he later, as I will come to in a moment, he later says that by offering the AWAs Sealcorp has rendered any further discussions with the union as futile so he - - -

PN76

JUSTICE GIUDICE: Yes.

PN77

MR BLACKBURN: On that basis he says it is all a sham and proceeded to make the award.

PN78

JUSTICE GIUDICE: And you say that was an error on his part?

PN79

MR BLACKBURN: Yes, we do, we say it is quite possible, under the Act, for both instruments to operate. Not all employees may want to accept AWAs. If an AWA is made for a new employee after the certified agreement is in place then that will obviously operate subject to the certified agreement and depending on the outcome of the certified agreement negotiations, it may be that Sealcorp would be sufficient satisfied with the content of the certified agreement not to pursue AWAs in future. I mean these things all remain to be negotiated but simply to say, as the Commissioner did, that because AWAs had been offered, well, then it follows that the bargaining notice was a sham and therefore can be ignored for the purposes of section 170N, in our view, was an error.

PN80

There are plenty of examples before the Commission where parties have followed both lines at the same time. In fact it has even been said in some cases that the offer of AWAs were the tactic to encourage a union to negotiate a certified agreement. We don't say that is what occurred here but clearly the two can operate side by side. The Commissioner, on the other hand, clearly at paragraph 240 says, "Well, which is it?" You can choose one or other but you can't have both and we say that that was a fundamental misconception on his part which then underpinned his decision and his finding that the bargaining notice was a sham.

PN81

JUSTICE GIUDICE: Well, can you just - just to - seeing I have interrupted your narrative as it were, can you indicate what evidence there is by way of material or submissions that Sealcorp is in fact seeking an interim award? I am sorry, not an interim award, but is seeking an agreement.

PN82

MR BLACKBURN: Well, your Honour, this is one of the difficulties that Sealcorp sought an adjournment from the Commissioner to provide that material.

PN83

JUSTICE GIUDICE: Yes.

PN84

MR BLACKBURN: And was denied that opportunity.

PN85

JUSTICE GIUDICE: Yes.

PN86

MR BLACKBURN: Now, as to what there is, there is clear evidence and it is conceded in the chronology filed by the union that Sealcorp had approached the union about negotiating a certified agreement before it served the bargaining notice so there was that. There are also the statements on transcript both on 30 January and on 17 February from Sealcorp's agent indicating Sealcorp's intention and desire to negotiate a certified agreement with the union.

PN87

Now, none of those things were challenged. The only evidence that was put against Sealcorp to support this notion that the bargaining notice was a sham was the fact that they had subsequently issued AWAs.

PN88

JUSTICE GIUDICE: Yes. But the affidavit which has been filed today - - -

PN89

MR BLACKBURN: Yes.

PN90

JUSTICE GIUDICE: - - - does that deal with that issue?

PN91

MR BLACKBURN: Yes, it does, your Honour, at the - I think at one of the last paragraphs.

PN92

MR GARDNER: Your Honour, I should say - I don't like the interrupt but - - -

PN93

JUSTICE GIUDICE: Yes, Mr Gardner.

PN94

MR GARDNER: - - - we want to have something to say about that issue and in effect what would be an application to admit further evidence for the purpose of the stay - - -

PN95

JUSTICE GIUDICE: Yes.

PN96

MR GARDNER: - - - particularly we understand that there is some material in here that quite properly goes to the issue of balance of convenience but to try to backfill now, we would say inappropriate - is quite inappropriate.

PN97

JUSTICE GIUDICE: Yes, well if - - -

PN98

MR GARDNER: Perhaps if I leave it there or - - -

PN99

JUSTICE GIUDICE: Yes, well, in that event I won't ask you take me to that at the moment, Mr Blackburn. Yes, thank you, Mr Gardner.

PN100

MR BLACKBURN: Yes, thank you, your Honour.

PN101

JUSTICE GIUDICE: Can I ask one of the question - is there an award which - Federal or State which applies to Sealcorp's employees?

PN102

MR BLACKBURN: Your Honour, the bulk of the employees are in Western Australia and there is no award in Western Australian that applies to them, as far as I am aware.

PN103

JUSTICE GIUDICE: Yes. Well, has Sealcorp made application to the Commission to have an award designated?

PN104

MR BLACKBURN: No, your Honour, it has made application to the Employment Advocate and that has indicated in the affidavit but no, it has not made application to the Commission to have an award designated.

PN105

JUSTICE GIUDICE: Yes. Well, doesn't 170XE require it to do so?

PN106

MR BLACKBURN: Yes, your Honour, it does and at this stage the question is whether the union is prepared to negotiate a certified agreement because it was - the only time the union has indicated any preparedness to negotiate a certified agreement was in the last proceeding on 17 February when the union for the first time indicated through Ms Maloney that it was prepared to negotiate a certified agreement provided an award was made, safety net award was put in place.

PN107

PN108

Prior to that Sealcorp was awaiting some response of the union as to - some clear indication that it was prepared to negotiate a certified agreement.

PN109

JUSTICE GIUDICE: Yes, Mr Blackburn, perhaps I wasn't making myself clear. I referred to 170XE which refers to designations in relation to AWAs. I should have referred to 170XF which I think has been the subject at a recent Full Bench decision which your employer I think was a party to, Silver Chain, I think that that decision is authority for the proposition that if an employer proposes to make a certified agreement then it must apply in writing in the circumstances there set out for a determination.

PN110

MR BLACKBURN: Yes. Your - - -

PN111

JUSTICE GIUDICE: And my question was directed to whether that had been done.

PN112

MR BLACKBURN: No, your Honour, it has not been done yet - - -

PN113

JUSTICE GIUDICE: No.

PN114

MR BLACKBURN: - - - and we would say that 170X - that decision to which your Honour refers we certainly concur is authority for the proposition that the application can be made before the certification proceeding which was the point of issue in that case.

PN115

JUSTICE GIUDICE: Yes.

PN116

MR BLACKBURN: We would say that 170XF doesn't stipulate exactly when the employer must make that application, it doesn't say as soon as the employer decides that is what it wishes to do, it must immediately make an application for certification and in any event we would say that the sections ought not be relied upon at this stage to demonstrate some sort of lack of genuineness on Sealcorp's part. It is not clear from section 170XF exactly when the employer must make that application.

PN117

Clearly the employer must make it but there is no indication in section 170XF as to when.

PN118

JUSTICE GIUDICE: Yes, thank you.

PN119

MR BLACKBURN: Your Honour, the - at paragraph 241, at the end of that paragraph, Ms Thompson re-stated Sealcorp's position that it could offer AWAs and also enter into an agreement with the union. Now, the - Ms Maloney then was permitted to continue and she did until page 233 of the appeal book, paragraph 363, where she concluded her submissions and Ms Thompson then at paragraph 364 began her submissions in reply and she said, at 364, that earlier on the Commission had been referred to comments made when the matter was last before the Commissioner on 30 January where she had said that Sealcorp Holdings considered, through a certified agreement, that there may well be some common ground between the union and Sealcorp Holdings. However, at paragraph 365, she says:

PN120

I stand by those particular comments. My instructions from Sealcorp are consistent with that, that it initiated bargaining in the attempt to reach a certified agreement with the union so that it would have an agreement specific to its organisation, not an award that would apply to someone else's organisation.

PN121

At paragraph 366, Ms Thompson says:

PN122

Sir, there have been a number of documents tendered in evidence today. As I highlighted to you earlier, I am not in a position to respond to the authorities that have been listed. The authorities were faxed through to me literally minutes before I left the office this morning to come here so I haven't had time to look at that, sir.

PN123

At paragraph 368, Mr Thompson said, yes, Sealcorp has gone out and offered AWAs but at the last few lines:

PN124

At the same time, yes, it has initiated bargaining with the union and is genuine in its attempts that it may well be able to sit down around a table with the union and come to an agreement; a certified agreement.

PN125

At paragraph 369:

PN126

Sir, in relation to whether the notice is genuine or not, we would seek that the matter be adjourned ...(reads)... and, sir, I would seek that as a threshold issue.

PN127

At paragraph 370:

PN128

In relation to whether a draft order should be issued roping-in Sealcorp into the St George Award, sir, we haven't even had conciliation on that matter yet ...(reads)... and I would seek to call evidence on that matter.

PN129

Then at 371:

PN130

Sir, also in relation to the St George Award, we have already raised several issues with the union regarding how that particular award ...(reads)... none of those issues have been resolved at this point in time.

PN131

There is then - Ms Thompson indicates that it is Sealcorp's intention to have negotiations with the union however, as she says at paragraph 372:

PN132

Ms Greenaway has been unavailable for most of that period as she has been interstate but it would certainly be Sealcorp's intention to meet and discuss that matter.

PN133

Before that happened, your Honour, was that further to the proceedings on 30 January and the directions given by Commissioner Raffaelli on that day, that there be further discussions but the parties had not met but both parties indicated before him on 17 February that they had not met because of a lack of time and that both had the intention of meeting. The Commissioner then says, at paragraph 373:

PN134

Yes, thank you, Ms Thompson. Unfortunately, in my view ...(reads)... by the actions of the company.

PN135

It says, at paragraph 374:

PN136

Now, it is clear to me and I am satisfied that the bargaining notice is a ...(reads)... falls far short of the items contained in the log.

PN137

And the then says, at paragraph 377:

PN138

Now, I am satisfied that what has occurred is nothing by an attempt to use part of the Act ...(reads)... were notified last week.

PN139

In fact, as we have indicated to your Honour, they were notified on the Thursday, it is now the Monday morning and in fact it wasn't until the Monday that Sealcorp was advised that the union would be seeking an interim award out of this particular proceedings. His Honour then - the Commissioner then says:

PN140

Well, the company can't now say, well, we thought we had a program ...(reads)... so I am giving you the opportunity, Ms Thompson, to tell me why she got back in the work area.

PN141

[3.30pm]

PN142

So there again, your Honour, the Commissioner has clearly indicated that in his view any further discussions between the parties over the terms of the certified agreement, or presumably even over the terms of the award, have now been rendered futile by Sealcorp offering AWAs. In the absence of any other decision or any written reasons for decision, we say that that is probably - it may be inferred that that is the reason why the Commissioner bypassed the conciliation processes and proceeded to arbitrate.

PN143

Now, at paragraph 379 Ms Thompson says:

PN144

Well, sir, as I said, the company feels it has been denied natural justice in the time ...(reads)... separate categories of employees. We haven't had the chance to put that evidence before you.

PN145

And the Commissioners says at 381:

PN146

Well, yes ..... your submissions. What I propose to do is made an award -

PN147

which he then does. The Commissioner then says at paragraph 382 that he is not dismissive of legitimate concerns that the company may have that the St George Award may not fit Sealcorp, and on that basis he makes it as an interim roping-in award in an attempt, if you like - and he says he does that to provide Sealcorp a fair opportunity to put its case. But, of course, that is only the case in relation to the content of the interim award, Sealcorp has still been denied a fair opportunity to put its case in relation to genuineness of the bargaining notice, and the witnesses that Sealcorp wish to call, it was unable to call. Material that Sealcorp wished to put, it was not able to put. And in any event, we say that even without that material, there was simply not enough before his Honour - sorry, before the Commissioner for him to find that the bargaining notice was .....

PN148

Your Honour, if I could now, in light of that chronology, turn to the various appeal grounds. The first appeal ground obviously is the Commissioner exercised arbitration powers during a bargaining period, so - and the error there, of course, is finding that the bargaining notice was a sham. We say he made that finding purely on the basis that Sealcorp had offered AWAs and that it was not open to him to find as he did that an offer of AWAs was necessarily inconsistent - wholly inconsistent with an intention to negotiate a certified agreement. There are many examples in which an AWA and certified agreement can sit side by side.

PN149

We also say that in arriving at his conclusion that the bargaining notice was a sham, the Commissioner failed to have regard to the fact that Sealcorp have approached the union about negotiating a certified agreement before it initiated the bargaining period, and that that was a relevant consideration as to the genuineness of the bargaining notice. Sealcorp had, contemporaneously with the service of the bargaining period and subsequently, restated its desire to negotiate an agreement with the union for those employees who elected not to enter into AWAs.

PN150

So we say that there is a very strong arguable case on background that the Commissioner erred in finding that the bargaining was a sham and therefore obviously erred in proceeding to arbitrate an award.

PN151

We also say that in the circumstances, Sealcorp was denied procedural fairness, which is the third ground of appeal, by listing the matter at such short notice and then denying Sealcorp, the appellant, an adjournment to enable to prepare and present its case. And that procedural fairness was exacerbated by the fact that the appellant had made inquiries of the union, had not been advised what the union would be seeking at the hearing until it received a notification on the morning of the hearing, only a few hours before it.

PN152

The fourth ground of appeal, your Honour, is that the Commissioner erred in finding that in any event the circumstances warranted the making of an interim award. It is clear from the transcript that what motivated the Commissioner to make the award was Sealcorp's offer of AWAs. So when the Commissioner said that he made the interim award to provide protection to employees, it must be inferred that he felt it necessary to protect employees from the offer of AWAs, there was no other basis or not other circumstance before him to suggest that the employees' conditions were in anyway at risk.

PN153

The union's case was not that the employees' existing conditions were at risk. The union's case was that Sealcorp had offered AWAs, and if those AWAs were accepted, the award which the union hoped to have made, would not apply to those employees. And that award contains some conditions which are higher, if you like, than those in the AWA. And then there was also some reference in the union's submissions to the St George Bank Certified Agreement which was to be paid higher - higher conditions, so the union's concern was that if the employees entered into AWAs, not that their existing conditions would be cut or threatened in any way, but they would be shut out from any future award.

PN154

So the Commissioner, which was the fifth ground of appeal, held in effect that the award was required to protect the employees from Sealcorp's offer of AWAs. Now, in our submission, it would be a wrong exercise of the Commission's discretion to issue awards to protect employees from the provisions - from an offer of AWAs. The offer of AWAs is entirely a legitimate process envisaged by the Workplace Relations Act. There is a process for ensuring that employees are adequately protected, and that process, of course, includes the designation of an award by the Employment Advocate and the application of the no disadvantage test, and those circumstances, we would suggest, that it is a wrong application of the Commission's discretion to begin issuing awards to guard against offers of AWAs.

PN155

We also say as part of that that the Commissioner erred when he came to the conclusion that the employees needed to be protected by failing to have regard to the fact that an award would be designated by the Employment Advocate.

PN156

We also say as well the grounds of appeal that the Commissioner failed - the seventh ground of appeal the Commissioner failed in his duty to properly conciliate the matter. As we have seen from the chronology - and also the chronology provided by the union, the Commissioner made two attempts, if you like, to conciliate the matter. One was a direction which he issued on 30 January that the parties meet, and they did in fact meet by teleconference and there was some progress there; there was an exchange of correspondence and some exchange of views. And then he made a further direction at a subsequent hearing - sorry 30 January was the further direction where he again directed that the parties meet and confer and they had not had time to meet and confer by the time the matter came back on before him.

PN157

So the full extent of the Commissioner's attempts to conciliate the matter were two directions to the parties to go away and meet, and they had done that once. We would say that is a long way short of what the Act requires when it talks about arbitration being a last resort and the Commission taking all reasonable steps to conciliate matters and to enable outcomes to be reached by agreement. In this case, we say that the - note that the notion of conciliation was dealt with in a very cursory manner indeed.

PN158

Further, the eighth ground of appeal, we say the Commissioner erred in coming to the view that further conciliation would not have resulted in - or could not have resulted in agreement or further agreement. In this regard, the Commissioner seems to have acted on the basis that Sealcorp had - and this is what he said:

PN159

Sealcorp had, by issuing the AWAs, rendered any further discussions futile.

PN160

We say that is not the case. The ..... matters that could have been discussed between the parties either in pursuit of a certified agreement or in pursuit of an award, and so therefore we say it was not open - not reasonably open to the Commission to find that there was no likelihood that within a reasonable period conciliation could not result with a further agreement.

PN161

Your Honour, those are in my view the stronger grounds of appeal. We say that they more than adequately demonstrate an arguable case. A number of those grounds also to questions of jurisdiction, and we would say that there is also more than an arguable case there that the appellant would be granted leave to appeal when the appeal comes to be heard.

PN162

The remaining question then is one of balance of convenience. Sealcorp is a large enterprise. There are some 640-odd employees of whom approximately 475 would be covered by the roping-in award, and the effect of the roping-in award now is to require Sealcorp to apply that award, the St George Bank Award, to its 475 employees.

PN163

The next issue is dealt with in some detail in the affidavit of Ms Rita Greenaway, but as one can imagine, in applying a new award to 475 employees there will be a lot of administrative effort required and there will also be quite a degree of disruption if the conditions of employment for those 475 employees are changed.

PN164

It may be, of course, if the appeal is upheld, that the employees will then go back to their pre-existing conditions of employment and there would then be further disruption were that to occur. Even if the appeal were not upheld, the Commissioner has indicated his intention to allow Sealcorp to make submissions as to the final form of any award, so there is still the likelihood, even if the appeal is not upheld and the award remains in place, that the final award will be in a different form.

PN165

So again there will be further disruption as employees move from the regime put in place by the interim award to whatever is put in place by the final award. But simply moving 475 employees across to this new award is a significant undertaking and one that will also result in the employer paying additional wage increases which, if the appeal is upheld, it will be very difficult for the employer to recover.

PN166

Your Honour, in that regard we did send one decision - - -

PN167

JUSTICE GIUDICE: Mr Blackburn, can I just ask you a question about the mechanics of this. The award was made by the Commissioner on 19 February?

PN168

MR BLACKBURN: Yes.

PN169

JUSTICE GIUDICE: Yes. Was there any order issued apart from the order which he apparently made in the hearing?

PN170

MR BLACKBURN: Yes, your Honour. It is found at tab 2 of the Appeal Book.

PN171

JUSTICE GIUDICE: Yes. And what was the date of that?

PN172

MR BLACKBURN: The date was 19 February and he has made the award to operate from 17 February.

PN173

JUSTICE GIUDICE: Yes. And do I understand that your client is not observing the award?

PN174

MR BLACKBURN: I am not aware of the position at the moment, your Honour. I have not sought instructions on that.

PN175

JUSTICE GIUDICE: Because if it is not observing the award, it would be a rather strange thing to be seeking an indulgence by way of a stay when it is in breach of an order.

PN176

MR BLACKBURN: Yes.

PN177

JUSTICE GIUDICE: You say you don't have any instructions on that?

PN178

MR BLACKBURN: No, your Honour, I don't.

PN179

JUSTICE GIUDICE: Yes. I thought the submissions you were putting to me suggested that the implementation of the order had not yet occurred.

PN180

MR BLACKBURN: Well, yes, that is as I - that is as I envisage is the position. Yes, I think that follows from the affidavit of Ms Greenaway.

PN181

JUSTICE GIUDICE: Yes. You see, if it is being observed, then the difficulties to which you refer seem to be of a lesser dimension.

PN182

MR BLACKBURN: I understand, your Honour, from the affidavit of ms Greenaway that Sealcorp has looked at what is involved in translating the employees across, but is awaiting the outcome of the stay application. I can confirm that if your Honour wishes. I assume that to be the case from the affidavit.

PN183

JUSTICE GIUDICE: You see, the appeal could have been lodged on 19 February or 20 February, could it not?

PN184

MR BLACKBURN: Yes, your Honour. I am advised that what occurred was that Sealcorp entered into discussions with the union and those discussions went as late as the day on which the appeal was filed - - -

PN185

JUSTICE GIUDICE: I see.

PN186

MR BLACKBURN: - - - and did not wish to upset those discussions, and in fact part of those discussions involved Sealcorp not filing the appeal.

PN187

JUSTICE GIUDICE: I see, yes. All right, thanks for that, Mr Blackburn.

PN188

MR BLACKBURN: Your Honour, the decision of the Full Bench in Edwards v Telstra, which is print Q2467, summarises what we say is the practice that the Commission has adopted. Page 3 of that - - -

PN189

JUSTICE GIUDICE: I am sorry, could I interrupt you just once more, Mr Blackburn. You have not formally sought to tender the affidavit of Ms Greenaway.

PN190

MR BLACKBURN: Yes, I - - -

PN191

JUSTICE GIUDICE: I think it might be useful to attend to that matter because Mr Gardner may object to parts of it and we might as well get the position in order.

PN192

MR BLACKBURN: Yes.

PN193

JUSTICE GIUDICE: Do you seek to tender that?

PN194

MR BLACKBURN: Yes. Yes, I do, your Honour, yes.

PN195

JUSTICE GIUDICE: Yes. Do you have an objection, Mr Gardner?

PN196

MR GARDNER: Yes, your Honour, I do. Having only got it a few minutes before I walked in to court, I have not had the opportunity to even read it all, but in the short time can I identify that we object to paragraph 10 to the extent that it is said to be accurate. We are simply not in a position to make any observations about a table as complex as that. If the point being made is that the Sealcorp general terms and conditions of employment are less than those contained in the interim award made by the Commissioner, well, that is not in issue and the union below was making that point.

PN197

JUSTICE GIUDICE: Yes.

PN198

MR GARDNER: Paragraph 12.4, we object to that on the basis that - well, on a factual basis, but also the view isn't qualified. We object to paragraph 12.7 in that we don't have any basis for the conclusion of the suggested result in the discontinuance of the scheme. And paragraph 13.4, it is probably not so much a matter of objection, your Honour, except to say that the provision for time off in lieu is also available under the St George Award. We object to paragraph 16 in its entirety, and that was the paragraph that I foreshadowed earlier on, your Honour, which seeks to, in effect, make good in some way the failing that the Commissioner identified below and for which the union was contending, so we object to that. Those are the matters I wanted to raise.

PN199

JUSTICE GIUDICE: Can I ask this question, Mr Gardner. The matters you have identified, and indeed other matters, appear to be matters that could have been the subject of evidence in the proceedings, but which were not because of the way in which the last day, as it were, panned out.

PN200

MR GARDNER: Yes, your Honour. Yes, indeed. We will be making some submissions about that. I understand, and my learned friend will correct me if I am wrong, that this material is submitted only for the purposes of the stay. If it is suggested that somehow or other this material go in in some other way, then of course, we would be vigorously objecting. But I understood him only to be putting it in the context of the balance of convenience, and to that extent, well, I suppose it is relevant to the balance of convenience, but it is exactly the material foreshadowed in the correspondence as long ago, I think, as it was in January from the company or it might have even been in December - in January where the company were foreshadowing these very issues to the union. So there is nothing really new about it.

PN201

JUSTICE GIUDICE: Yes.

PN202

MR GARDNER: So those are our observations about the affidavit material.

PN203

JUSTICE GIUDICE: Well, I am not quite clear what the basis of the objection is. Have you simply identified matters - leaving aside paragraph 16 for the moment, have you simply identified matters in which there may be a factual dispute?

PN204

MR GARDNER: In substance, yes, your Honour.

PN205

JUSTICE GIUDICE: Yes, yes. Yes, all right.

PN206

MR GARDNER: Look, we are not here to prevent the Commission in some way having a proper understanding of what the issues are.

PN207

JUSTICE GIUDICE: Yes. All right. Well, Mr Blackburn, the only matter on which I would require a submission from you is the objection to paragraph 16; what do you say about that?

PN208

MR BLACKBURN: Your Honour, I would imagine that if nothing had been said on the point, the question would have been asked; in fact, indeed, your Honour just asked me earlier whether, in fact, the affidavit said anything on that issue. So it was put there not because it is anything new, because in fact, the agent for Sealcorp had said that in transcript on several occasions before the Commissioner on 17 February and also on 3 January, and I have taken your Honour to those transcript references.

PN209

JUSTICE GIUDICE: Yes.

PN210

MR BLACKBURN: So it is nothing new in that regard and it is simply put in there to avoid anyone suggesting, well, look, there is a noted omission, just simply to restate what is already before the Commission.

PN211

JUSTICE GIUDICE: Yes. Well, I will accept the affidavit. Of course, it is uncross-examined, but nevertheless, for the purpose of these proceedings, I will accept it into evidence and I will mark it B1. That is the affidavit of Hannah Margaretta Greenaway, affirmed 17 March 2003.

EXHIBIT #B1 AFFIDAVIT OF HANNAH GREENAWAY AFFIRMED 17/03/2003

PN212

JUSTICE GIUDICE: Mr Blackburn, I only have a faxed copy of that affidavit. I would require you to file an original in the Perth Registry.

PN213

MR BLACKBURN: Yes, your Honour.

PN214

JUSTICE GIUDICE: Yes, thank you - if it has not already been done; it may have been done.

PN215

MR BLACKBURN: No, your Honour, it hasn't been done yet, but we have it here and we will file it with Registry.

PN216

JUSTICE GIUDICE: Thank you.

PN217

MR BLACKBURN: Your Honour, the affidavit sets out a number of the issues which one would imagine in any - arise in having to apply a new award to 475 employees. In the decision that I faxed to your Honour and to the union, Edwards v Telstra, 30 June 1998, print Q2467, the Full Bench in that case simply summarised the practice of the Commission where at page 3 the Full Bench, consisting of Vice President Ross, Senior Deputy President Watson and Commissioner Blair, said:

PN218

We only wish to note that previous Commission decisions have suggested that where the intervention ...(reads)... the Commission is generally making or varying an award that applies to a large number of employers and employees.

PN219

Those considerations arise in this case. Has your Honour had an opportunity to look at the affidavit?

PN220

JUSTICE GIUDICE: I have, yes.

PN221

MR BLACKBURN: Sorry, your Honour?

PN222

JUSTICE GIUDICE: Yes, I have.

PN223

MR BLACKBURN: Thank you. Well, in that case I won't take your Honour to it in any detail.

PN224

JUSTICE GIUDICE: Yes.

PN225

MR BLACKBURN: What we do say though is that in our submission one of our grounds of appeal is that the interim award ought not to have been made in this case simply because there was nothing to protect the employees against. The process of offering AWAs is one that carries with it safeguards under the Act and therefore it is not, in our view, necessary or for that matter desirable or appropriate for an interim award to be issued to guard against an offer of AWAs. We therefore submit that Sealcorp should be able to continue to offer its AWAs and at the same time a stay should be granted against the award.

PN226

In the alternative, your Honour, and while that remains our preferred position, in the alternative I am instructed that Sealcorp is prepared, if necessary, to give an undertaking not to proceed with the offer of AWAs pending the outcome of this appeal, though as I say, we do put that in the strict alternative because our primary position is that the process for offering AWAs carries with it its own protections and the application of the no disadvantage test.

PN227

We note in this regard that one of the attachments to the affidavit of Ms Greenaway is a designation from the Employment Advocate wherein he has designated the AMP Employees Award 2002, which is a simplified award, as the award to apply to any non-award employees of Sealcorp if they wish to enter into AWAs for the purpose of the no disadvantage test.

PN228

Your Honour, those are our submissions on the issue of the balance of convenience. We say that there is - the balance of convenience strongly favours Sealcorp because of the difficulties faced in implementing an award for such a large number of people and that either the offer of AWAs is not something that needs to be protected against, or if your Honour is concerned as to that submission, then Sealcorp would be prepared to offer an undertaking not to proceed with the offer pending the determination of the appeal.

PN229

JUSTICE GIUDICE: Yes. Mr Blackburn, could you just answer a couple of questions for me about the St George Award. Is that a simplified award, do you know?

PN230

MR BLACKBURN: Yes, it is, your Honour.

PN231

JUSTICE GIUDICE: Yes. And it follows, I hope, that the rates in it have been fixed on a minimum rates basis?

PN232

MR BLACKBURN: Your Honour, in the decision of Senior Deputy President Duncan, there is a paragraph in there - it was obviously done by consent, and there is a paragraph in there which I don't think I have with me right at the moment, but it said something to the effect he was satisfied on the basis of the material and submissions laid before him that the award - that the rates were properly fixed having regard to the Commission's decision in the paid rates decision.

PN233

JUSTICE GIUDICE: Yes.

PN234

MR BLACKBURN: So that was the sum of the discussion on the matter.

PN235

JUSTICE GIUDICE: Yes.

PN236

MR BLACKBURN: Obviously if there is a need for Sealcorp to make submissions as to a final award, that would be something about which Sealcorp wishes to make further submissions.

PN237

JUSTICE GIUDICE: Yes, of course. No, I am just really seeking your assistance for the purpose of understanding the situation here.

PN238

MR BLACKBURN: Your Honour, the rates are a little difficult to understand in that clause 12.2 sets out the rates, this is page 13, I think, of the award, and simply says:

PN239

The following minimum salary rates will apply to full-time employees of St George -

PN240

and then sets out a number of classes, from class 43 to class 51, with a number of rates next to that ranging from $28,000 to $34,000 per annum. Nowhere in the award is there any indication, description or definition of those classes, so you actually have to go back to St George and say, well, what does this mean?

PN241

JUSTICE GIUDICE: Yes.

PN242

MR BLACKBURN: So that was a difficulty that Sealcorp had, and it went back to St George, and then St George say, well, we apply this job evaluation to it. And Sealcorp said, well, can we have it? And St George said, no, but we will help you with the translation. That is another one of the difficulties Sealcorp are facing in this.

PN243

JUSTICE GIUDICE: Yes. Right, thanks, Mr Blackburn. Mr Gardner.

[4.00pm]

PN244

MR GARDNER: Just excuse me for a second, your Honour. Your Honour, it is submitted by the union that this is one of those cases where leave to appeal is itself not arguable, and the observations we make on this issue are also relevant to the question of balance of convenience. The starting point of course is, for the Commission, that the decision or the award has to be regarded as regularly made, and that in addressing the public interest test under section 45, the Commissioner's standing and purpose shouldn't be diminished at first instance, and accordingly, the public interest test should be vigorously applied.

PN245

What happened here was that the Commission had an industrial dispute found in October last year, and it was seeking to resolve that dispute. It finished up by doing so, and made an interim award only. It submitted that the Commission, on appeal, would be slow to interfere with that process, given the opportunity for the appellant to put what they might want to put about the final content of the award at a later point. The conduct of the appellant, it is submitted, is also relevant. What happened here was that the appellant was trifling with the Commission. Commissioner Raffaelli concluded that the was not fairly dealt with by the company, and he said that at Paragraph Number 378.

PN246

What happened was that the company, when it became clear that the Commissioner was going to proceed, still sought an adjournment rather than to meet what it was able to do right there and then. It had the capacity to put the senior employee in the witness box to address the question of sham. Right at that very moment - the company was competently represented. The person from whom we have the affidavit today was in Court at the time. Now, the company, once it was clear what the procedure was going to be, and it was made quite clear what the union was seeking and where it was going, the appellant had that opportunity and it decided not to do so.

PN247

We also submit that, Commissioner, this is an industrial Tribunal, and it is in that context that the Commissioner was dealing with an industrial dispute, and it was then dealing with what was said to be an impediment to the making of an award. This was the section 170N point. The Commissioner is an experienced Commissioner. He was capable of reaching a conclusion on the material that it was desirable and that he should proceed to make the award, albeit the union sought an award. He rendered an interim award. He made a judgment, and it is submitted that on appeal the Commission would do the same. That - - -

PN248

JUSTICE GIUDICE: Mr Gardner, there is only one thing that worries me about that, and that is that there had been a program established and really, without notice, that program was truncated completely, and you might say, well that was not the union's doing, and you might be right about that. But the concern I have is that at the end of the day there was a program established which involved the question of whether there was a sham or not. Documents were to be filed and so on, and really without much notice at all, the Commissioner abbreviated that process.

PN249

MR GARDNER: Yes, your Honour, but the abbreviation of course wasn't very great in terms of the program, because it was about to come to an end.

PN250

JUSTICE GIUDICE: Yes.

PN251

MR GARDNER: But the other - the other thing we would say - - -

PN252

JUSTICE GIUDICE: What was the date for the employer material?

PN253

MR GARDNER: I think it was the union by 27 February and the employer by 20 March.

PN254

JUSTICE GIUDICE: Yes.

PN255

MR GARDNER: Yes.

PN256

JUSTICE GIUDICE: Mr Blackburn, it is thought that you may have accidentally pushed the mute button.

PN257

MR BLACKBURN: Yes. Thank you, your Honour.

PN258

JUSTICE GIUDICE: Yes. Was there something you wanted to say?

PN259

MR BLACKBURN: No. I was simply trying to assist Mr Gardner in finding the date of 20 March.

PN260

JUSTICE GIUDICE: It was 20 March, was it?

PN261

MR BLACKBURN: Yes.

PN262

JUSTICE GIUDICE: Yes.

PN263

MR GARDNER: But what we say, your Honour, is this. That it is one thing to have a leisurely program of determining an objection to why there shouldn't be arbitration, and then a leisurely program about the content of the final award, in circumstances where the union is not being denied access and, your Honour, one of the things that underpins this whole appeal and the heat, I suppose, in it is the question of access to the workplace by the union, and that was a theme made very clear by the union on 30 January; and when the Commissioner speaks of requiring award protection, and we will come to this, that is a composite term that refers to more than just the terms and conditions of employment.

PN264

The mere referencing to jurisdiction as has been done will not establish an arguable case for leave to appeal. It needs to be something - some real and substantial issue. So we say, your Honour, that in our submission there is a real doubt touching leave to appeal. We note that as for the last of the grounds for appeal that is not pursued in terms of arguable case at this point, and so we don't trouble your Honour with it. In relation to the ground of appeal dealing with section 170N and the question of a sham, it is submitted that the Commissioner in fact did not find, as is suggested in the notice of appeal, and indeed as put by Mr Blackburn today, the observation made by the Commissioner at Paragraph Number 241 was, we say, made in the course of argument.

PN265

But the Commissioner's reasons are at Appeal Book 235 and Appeal Book 237, and it is important, your Honour, to have regard at the very last page of the transcript where the Commissioner makes it clear that, at Paragraph Number 384, that he makes no comment about the company's pursuit of AWAs:

PN266

It has obviously had a history of that, and it is entitled under the Act to pursue that, and I am certainly not indicating a favour, certified agreements over AWAs or whatever. All I am duty bound is to part-settle a dispute, and I have decided to do so by making this interim award. On that basis these proceedings are now adjourned.

PN267

Your Honour, that is a very different terms of decision to an observation made in argument at Paragraph Number 241, that Mr Blackburn drew your attention to. That observation made in the course of argument also arose in the context of the dispute more generally. At the end of the proceedings on 30 January - I am having some difficulty, your Honour, about the Appeal Book. I only just got the Appeal Book at lunchtime so I am - - -

PN268

JUSTICE GIUDICE: Yes.

PN269

MR GARDNER: - - - not necessarily got Appeal Book references. But on the - at the end of the preceding proceedings on 30 January the Commissioner is very clear in drawing the company's attention to the difficulties about access. He does that at Paragraph Number 91. He says:

PN270

The company has chosen to initiate a bargaining period with the trade union. In fact, there is a restriction on that trade union negotiating before, so the trade union having no access to its members or potential members, then one wonders about the genuineness of the bargaining period. I put it no higher than that. They don't have to bargain with the union, and go on ...

PN271

and so on. Your Honour, the Commissioner doesn't conclude only on the basis that there is some inconsistency between AWA and certified agreement. It is not what he is about. He concluded that it was a sham, because he had a range of material before him, including the bargaining period having been based on the union's log, and that is an important consideration, your Honour. The bargaining period notice provided by the employer is at Appeal Book sections Tab 6 and, your Honour, in paragraph C down the page you can see that the matters that the company propose to be dealt with by the agreement include all the matters referred to in the letter of demand dated 20 August, and the log of claims attached. Now, your Honour, the log of claims and letter of demand aren't in the Appeal Book. Can I just pass to your Honour a copy of that - the letter of demand and log of claims?

PN272

JUSTICE GIUDICE: Yes. Thank you.

PN273

MR GARDNER: Now, your Honour, it is submitted that in circumstances where the company identifies the matters as all the matters referred to in the letter of demand and the log of claim, when one has a look at the content of the letter of demand and the log of claims there is a legitimate and proper basis to conclude that the company didn't really want what it was asking for. There is a range of matters in the log of claim, that it is simply not credible when one looks at its content, because all the matters sought there are what the company wants to have included in its certified agreement.

PN274

We have then the provision of Australian Workplace Agreements shortly after the hearing on 30 January, with content that is entirely inconsistent with that which it is said that they want, and indeed, some material is contained in their AWA that isn't sought in the log of claims. For example, journey insurance is one of the things they put in the AWA. It is not something sought in the log. There is a complete disjunction between the two, and that was a matter that the Commissioner quite sensibly had regard to. It is this inconsistency between the company's attitude in the documentation and what is actually referred to, and the Commissioner, we say, was dealing with an industrial situation and - recognised for what it was, and that was a tactical device.

PN275

The question of access, as I have indicated, your Honour, was something agitated by the union, and it was clear to them that without an award there were going to be problems with access, and that simply flows from the operation of the Act, and the Commissioner was alert to that and I will - and that was something that he was also entitled to have regard to. The delays of the company in progressing the matter, which were quite clear from FSU9, and Mr Blackburn doesn't take issue with that chronology. The timing of the bargaining notice itself, and your Honour has seen that the union wrote in October after the dispute finding, and then there was a conference.

PN276

The parties were going to negotiate, and indeed, on 30 January it was somehow or other submitted that the union didn't want to negotiate, but it was made clear on 30 January that it was prepared to. It is - and then the AWAs emerge. It is our submission that it was manifestly a device to prevent and delay the resolution of the dispute, and that that conclusion was not only open, but it was overwhelming and compelling. In relation to ground - what is ground 2B of the notice of appeal, it is submitted that the Commissioner couldn't help but have had regard to that point. He did. But he had regard to all the circumstances, and they were the matters that the union advanced before him.

PN277

The CCIWA is well rehearsed as an industrial strategy in notifying a bargaining period in relation to an entire union log. They then invoke section 170N and seek to avoid a safety net as an award. An example of that - - -

PN278

MR BLACKBURN: Well, your Honour, if I could object to that characterisation of the CCIs actions by Mr Gardner.

PN279

JUSTICE GIUDICE: Yes.

PN280

MR GARDNER: Well, he has objected to that characterisation and he is entitled to, your Honour. We would persist with the characterisation. Can I pass to your Honour a decision in Print S5283? It is a decision of a Full Bench comprising Senior Deputy President Polites, Deputy President Fielding, and Commissioner O'Connor, of 28 April 2000, and my purpose in providing it was to draw attention, at paragraph 21, to the Full Bench's observation that it is the employer - about five lines down:

PN281

It is the employer who must want to negotiate an agreement under Division 2 or 3 in relation to employees.

PN282

It is that desire to want to negotiate the agreement of which it gives notice. That is the critical component. Now, we say that the Commissioner was entitled and able on the material to draw that conclusion. The observation I made a minute ago about the industrial strategy is apparent - does your Honour see at about point 3 of the page where the Full Bench starts quoting Commissioner Laing?

PN283

JUSTICE GIUDICE: Yes.

PN284

MR GARDNER: And at paragraph 86 there is a reference to the CCIWA acted on the employer's initial instructions. Then the last sentence in that paragraph:

PN285

It is significant here that the matters are the same as those notified by the ALHMWU under Part VI. It also provides a different foundation for an agreement ...

PN286

and so on. I just make the observation, I provided the authority for the purpose I indicated, but it is something that the CCIW who act in this matter have adopted before, and the submission we make, your Honour, is that you need more than a strategy. What you need is actually a preparedness on the part of the employer and a genuine desire to seek what it thought, and the matters referred to in the log of claims weren't those. Commissioner Smith, in a well-known decision with which you are familiar, in Print S7058, that was referred to below makes the same observation about the need for, in effect, genuineness.

PN287

It is submitted, your Honour, that the conduct of this employer prior to the issuing of the bargaining notice - the content of the notice itself, when one has regard to the log of claims, and the conduct subsequent to it, including the failure to call evidence to deal with it, really makes the position of arguable case on whether or not there is a sham clear, and we say there isn't one. As to procedural fairness, it is accepted that fairness is a function of the nature of the Tribunal and all the circumstances, and I can do no better than quote Dean J in the Public Service Board v Osmond 1986 159 CLR 656. I won't provide it to the Commission. I simply quote, at 676:

PN288

It is trite law that the common rule laws of natural justice or procedural fair play are neither standardised nor immutable. The procedural consequence of their application depend on the particular statutory framework within which they apply, and upon the exigencies of the particular case.

PN289

And we emphasise the last part of that. We say there are no fixed rights or entitlements as to time frames. Section 98 requires the Commission to act quickly. Section 98A speaks of the need to avoid technicalities, and section 110(3) provides for the Commission to allow parties only the time reasonably necessary to prepare their cases. What the Commissioner was faced with was a need to deal with a dispute that had been found in October 2002, and with what was said to be a jurisdictional objection. The parties had competent representation. They had a capacity to call evidence on the issues present. He made an interim award dealing with the substance because of his concern about the substance.

PN290

It was suggested by my learned friend that somehow or other the company weren't on notice about what was wanted. Can I remind your Honour that the very - the whole proceeding was about the union wanting a roping-in award. The directions that were given were simply a step along the way in that proceeding to deal with, with something that was said to be an impediment. We say it is really disingenuous to say - for the company to say they didn't know and couldn't have known what it was that the union were seeking. Certainly they were clear on the Monday morning. That is not in dispute. But to suggest that somehow or other they were unclear as to the purpose of the proceeding, we say it is just not credible. The union, in our submission, had a right subject to the impediment - the clarification of the so-called impediment, to have its application for an award dealt with.

PN291

JUSTICE GIUDICE: Mr Gardner, where is the letter? The letter of - - -

PN292

MR GARDNER: The 16th of - - -

PN293

JUSTICE GIUDICE: Was it the 16th? Yes.

PN294

MR GARDNER: This is the day before. The one that went on the Sunday.

PN295

JUSTICE GIUDICE: That is FSU4, is it?

PN296

MR GARDNER: No, your Honour. It is actually not in - - -

PN297

JUSTICE GIUDICE: It is - is it in the Appeal Book, Mr Blackburn?

PN298

MR GARDNER: I don't think it is, your Honour.

PN299

MR BLACKBURN: I don't think it is, your Honour. I noticed that this morning.

PN300

MR GARDNER: There were two letters, your Honour. The first - I suppose the easiest one is, it was a letter to Commissioner Raffaelli with a copy to the CCIWA.

PN301

JUSTICE GIUDICE: Yes.

PN302

MR GARDNER: It was dated 16 February, which is the Sunday.

PN303

JUSTICE GIUDICE: Yes.

PN304

MR GARDNER:

PN305

We refer to the correspondence forwarded to you from Ms Thompson of the Chamber of Commerce and Industry dated 14 February regarding the above matter. I wish to advise that when Ms Thompson contacted the FSU on Thursday I advised Ms Thompson that we were seeking an urgent re-listing of C2002/4331 because the union had become aware that Sealcorp had gone out on 7 February and offered Australian Workplace Agreements. It was our view that this conduct was inconsistent with what was occurring in the proceedings before the Commission and directions issues by yourself, sir, on 30 June 2003. In respect to what the FSU will be seeking from the hearing on 17 February, we will be seeking the making of a roping-in award which would rope Sealcorp Holdings Limited into the St George Bank Employees Award 2002. We will be tendering a draft order to this effect. The making of a roping-in award is what the FSU has consistently sought throughout these proceedings, and Sealcorp has been aware of this since October last year. Accordingly, the FSU would oppose any application by Sealcorp for an adjournment of the matter, following our submissions for the purpose of seeking further advice or instructions. Yours ...

PN306

etcetera. Can I tender that letter, your Honour?

EXHIBIT #G1 LETTER TO COMMISSIONER RAFFAELLI DATED 16 FEBRUARY

PN307

JUSTICE GIUDICE: You have that, Mr Blackburn, do you?

PN308

MR BLACKBURN: Yes, I do. Thank you, your Honour.

PN309

JUSTICE GIUDICE: Yes.

PN310

MR GARDNER: And, your Honour, the - just in terms of the - sort of the history of that, in the proceedings I think it was clear, Ms Thompson indicated that she understood that the union were continuing with their application for a roping-in award, and the chronology that your Honour was taken to by Mr Blackburn at the beginning made it clear that in October, as long ago as October, the union made its position clear on that point. Now, your Honour, in terms of procedural fairness what the Commissioner saw was an employer offering AWAs and incentives to, in effect, what would have been - frustrate the operation of a safety net award application, the very thing that was sought by the union, and it is submitted he was entitled to deal with the matter expeditiously.

PN311

There was no suggestion of a - somehow or other that it was needed to defeat the right of an AWA at all, and we say that that submission really misunderstands what the Commissioner did. The Commissioner made it clear in his decision that in part it was the employer's own conduct that gave rise to a change in the arrangements that existed, and it is submitted that he was entitled to do that, and that no real unfairness was put upon the company as a consequence of that. It is submitted, your Honour, that procedural fairness is pretty much a balance between competing interests, because what might be medicine for the employer at the same time is going to be poison for the employees or the union, and in this case, that was exactly what was happening because he needed to strike a balance between an opportunity to be heard and a need to - or not an opportunity to be heard, because that opportunity was clearly accorded. But an opportunity to further adjourn or delay, and the need to determine the matter, and here a balance was struck, and it is submitted that that balance was appropriately struck. There can be no suggestion that he did other than invite Ms Thompson to put to him whatever she wanted to put in relation to the content of the award, and that she had every opportunity to put what she wanted to in relation to the program, when it became quite clear - the Commissioner observed and you have been taken to it, that the union was now entitled in the circumstances and he was prepared to let them continue with their substantive applications.

PN312

In relation to the content of the award or the award protection, the Commissioner had substantial material before him, in fact. First of all he had material about the appellant's relationship with St George, and there is an entire exhibit that deals with that. It was FSU11 that related to the relationship of the bank with St George. There was material put to the Commissioner about the sub-standard character of the existing terms and conditions, and a comparison was undertaken with the State agreements and so on, and it was made clear that the employees concerned were below the safety net award, and it was made clear that it was a safety net award.

[4.30pm]

PN313

Some of the urgency that attended upon this matter arose from the expiry of the state employment agreements and that was a matter that was also clearly before the Commissioner. And indeed last Friday, 14 March, another bundle of state employment agreements ceased by operation of the Western Australian legislation - and I will need to take the Commission to that in a second. I indicated, a moment ago, that award protection is something of a shorthand and indeed it is, your Honour. When the Commissioner speaks of award protection it is something that goes beyond simply the safety net terms and conditions provided by the Act.

PN314

In this regard we draw attention to the objects of the Act in providing safety nets for everyone. But there are a range of things that follow from award protection including: enforceability mechanisms available to employees and to unions on their behalf; right of entry provisions, which were a real issue in this context; access to unfair dismissal; access to the regime for inspection of compliance; the no disadvantage test; and knowing what the award is in the context of negotiating an enterprise agreement or negotiating even an AWA, in advance - and of course there is a big difference between knowing what your comparator award is when you are deciding whether or not to sign as distinct from further down the track when the Commission is certifying the matter; freedom of association arising from the Act; record keeping obligations and so on.

PN315

So it is submitted, your Honour, that here what the Commissioner have regard to is all those sorts of issues and the right of access have been a big issue amongst them. The next ground of appeal is the question of conciliation and it is simply - it is conceded, I think, that under section 102(2) the Commissioner did arrange and direct for conciliation. The first occasion was at the time of the finding of the dispute on 13 September 2002. The Commissioner gave a direction for the parties to confer. He then repeated that direction, or gave a further direction, at paragraphs 103 and 108 on 30 January.

PN316

Now it is submitted that this argument, as with the others, just simply doesn't pass muster. The Commissioner did arrange and direct for conferences between the parties, as required by the Act. Once having done that it became clear to him that further conciliation wasn't going to be successful. It is submitted that that was clear. The parties' positions had been made abundantly clear to him on the material and, indeed, Ms Thompson in the course of the proceedings before him made it clear that she was anxious to arbitrate the matter.

PN317

MR BLACKBURN: No, I object. I object to that. That is not correct.

PN318

MR GARDNER: Well, Ms Thompson was referring to a desire to call witness evidence in relation to proceedings before the Commission and if she was seeking to call witness evidence for a purpose other than arbitration then I am blessed that I know what she was doing. We further make the observation that conciliation isn't finished in terms of the award content on this matter. It is still open to the Commission. We have a finding of a dispute under section 101, a series of directions for the parties to confer under 102(2), and then the Commission makes an interim award.

PN319

We say it is simply not available as an argument to say that the Commissioner didn't appropriately exercise conciliation powers. We further say that it is not open to say that there was no basis for him to make the conclusion that he did. Your Honour, then we come - on those issues we say that first of all there is a serious doubt in our view and indeed we submit that it is not arguable, you know, in an environment like this that the applicant will be granted leave. Even if granted leave there is no arguable cases on any of the grounds of grants.

PN320

We then go to balance of convenience. Your Honour, can I provide you with a copy of a decision in print N1940. It is a decision of a Full Bench consisting of Vice President Ross, Deputy President Harrison and Commissioner Cargill of May 1996. It was an appeal against a decision in respect of an occupational health and safety matter, nonetheless it conveniently sets out some principles. And over the page, at page two, at about point 3 of the page, it begins subsection 45(2) and they quote the Act and then they refer to:

PN321

Leave to appeal is not a mere formality.

PN322

They quote All Type Engineering. They refer to:

PN323

...the public interest test needs to be applied vigorously...

PN324

and refer there to print G6157. Then they quote from the Catholic Archdiocese of Brisbane and then further down the page, about point 7, they say:

PN325

The Commission approaches applications for a stay order on the basis that unless otherwise established the decision subject to appeal was regularly made.

PN326

And they quote FEDFA. Then they refer, a few lines down, to the novel nature of proceedings made but don't necessarily make it an issue of such importance. And then they say:

PN327

Third, if the balance of conveniences against the granting of a stay order then the application will be refused.

PN328

And this is the part I want to direct your Honour's attention to in particular:

PN329

In this regard the Commission has adopted a cautious approach in relation to staying ...(reads)... of employment in the period before the appeal can be heard and determined.

PN330

And there is a reference to a decision of Boulton J. Well, your Honour, balance of convenience here really involves a group of employees who now have the benefit of a simplified award and section 170N(2) says something of the fairness in such matters because it allows a simplified award to be varied in the face of section 170N. Here, what we are seeking - here, what we have got is a simplified award at the very time that the state agreements under which these employees were employed were being - were expiring under the State Act.

PN331

And as a consequence of that it means that the employees concerned were left without an enforceable industrial award or industrial agreement - and, as I said, another tranche of them - or a tranche of them expired last Friday. So the balance here, your Honour, is between the inevitable issues relating to the application of an award as against the interests of these employees in having enforceable entitlements of the minimum underpinning kind that the Act contemplates employees as having. It also means that the employees will have the loss of award protection in the broader sense that I referred to a moment ago, including the loss of right of entry by the union, at the very time that AWAs are being sought to be issued.

PN332

And the employer says when they want to negotiate a certified agreement, "But of course the union doesn't have a right of entry without an award." It is submitted that what Commissioner Raffaelli did was to achieve a balance on an interim basis between no award coverage at all and the loss of state agreements between that on one hand and an allegation or a claim of a legitimate bargaining period and some difficulties about the application of an award. It is submitted that that balance that the Commissioner granted or found is a balance that the Commission shouldn't hear disturb on the stay.

PN333

To grant the stay would create overwhelming prejudice to the employees, and for that matter to the union. And the balance is one of the - also the Commission's process below where a single member decides, as he has done, that he needs to deal with the industrial realities confronting him. Your Honour, this isn't the case of an arbitrated award increase where a stay is sought and if it fails well there is - I am sorry, a stay is sought and all that happens really is that the increase is deferred.

PN334

What this is is a minimum simplified award protection being accorded together with the assorted elements that go with that under the Workplace Relations Act. And the loss of that protection by way of stay would coincide with the loss of Western Australian State Industrial Agreement protection. And the interim award sought and granted in the proceedings was, we say, responsive to the company's own conduct. Your Honour, the question of the operation of the state agreements is something that was - I think it was referred to and there was an exhibit provided to the Commissioner and it was FSU exhibit 12 which in the Appeal Book is Tab 13.

PN335

And, your Honour, you will see the dates there of the expiry of the agreements and then at the back of that exhibit there should be an extract from the Labour Relations Reform Act, 2002. Does your Honour have that?

PN336

JUSTICE GIUDICE: Yes, I do. Thanks.

PN337

MR GARDNER: I take your Honour to that just for the purpose of indicating that what happens to these people on the 14th is that the agreement becomes effectively part of their contract of employment so what they are left with is simply a contract of employment. Can I hand to your Honour - I had some difficulty getting hold of the Labour Relations Reform Act, 2002 for some reason or other. I won't blame the computer, it is the user. But I have provided an extract from Parliamentary Council's website and can I ask you to go to what is called page 65 of that, your Honour.

PN338

And that is the amendment to the Workplace Agreements Act and you can see at that bottom of page 65, what the amendments are directed to and then at page - what is described as page 70, I am sorry, page 69 is section 4H. That is the one that was before the Commissioner. What wasn't, I think, before the Commissioner is over the page at subsection 5. I just want to draw your Honour's attention to that:

PN339

The contract of employment referred to in subsection (3) or (4) has affect and may be varied or terminated as if it were a contract entered into between the employer and the employee.

PN340

That was not before the Commission, if I just explain that for balance of convenience purposes that is - that is what has happened with these employees. All they have got left is a contract of employment, in effect.

PN341

JUSTICE GIUDICE: But it is a contract enforceable under this statute?

PN342

MR GARDNER: Not as I understand, no, your Honour, that therein lies the - - -

PN343

JUSTICE GIUDICE: Yes.

PN344

MR GARDNER: Therein lies the point. As I say, I have had difficulty with the websites but that is the way I understand the operation. Your Honour, in terms of a balance of convenience and the - can I seek to tender a witness statement of Corinne Glen. And I think there should be one in Perth for Mr Blackburn.

PN345

JUSTICE GIUDICE: Do you have that, Mr Blackburn?

PN346

MR BLACKBURN: Well, I have just been handed it now, your Honour, thank you.

PN347

MR GARDNER: And - - -

PN348

JUSTICE GIUDICE: There seems to be a lot of that going on in this case.

PN349

MR GARDNER: Yes, your Honour. Ms Glen is in the - is in the Court in Perth. Your Honour, can I just draw your attention to some key components of this. Ms Glen says she is an organiser but at paragraph 10 she speaks of the discussions she has had with members and that they don't get paid any kind of penalty rates for overtime and she says they don't get paid ordinary rates for the hours worked. Over the page, they don't get any extra money for their early starts.

PN350

At paragraph 11 there is reference to working the state public holidays and overtime. And at paragraph 14 she refers to overtime being at the "whim" of a supervisor. And there is a reference there to now being covered by the award they wouldn't sign the AWA they have been offered. Reference in paragraph 16 to the employees needing the safety net and the State Workplace Agreement having expired. And in paragraph 17 there is a reference to the rates of pay which is consistent with what is put on the - from the other side, of course, that that is there is a disparity between the rates of pay being under the award and being paid.

PN351

And there is a reference to, in paragraph 16, at the bottom, very last part of paragraph 16, they were being told that the company didn't have a system capable of paying overtime that they weren't to be covered by the award as yet and it wouldn't be until April 2003, relevant to the observation your Honour made about seeking a stay by the company. And in paragraph 20 there is a fear about being targeted. Your Honour, we provide that and Ms Glen is there available to go into the witness box to swear up on that if the Court requires it, or if Mr Blackburn requires it.

PN352

JUSTICE GIUDICE: Yes. Do you have any objection to that being marked, Mr Blackburn?

PN353

MR BLACKBURN: Well I do, your Honour, in the sense that I have not had an opportunity to read it or obtain instructions in respect of it. So I am certainly not in a position to ask for Ms Glen to be cross-examined either, so I have no idea whether it is accurate or not.

PN354

JUSTICE GIUDICE: All right. Well, I shall mark it.

EXHIBIT #G2 WITNESS STATEMENT OF CORINNE GLEN

PN355

JUSTICE GIUDICE: But it is on the basis that it is objected to and there is no opportunity at this stage for cross-examination. When I say "no opportunity" I take it that you are concerned you can't get instructions on this, is that right?

PN356

MR BLACKBURN: Well, yes, your Honour. I have not been able to read it and, again, Ms Greenaway who is here today and is also available for cross-examination has not obviously seen it and there is no opportunity to gain instructions so it may be accurate, it may not be. I really have no idea.

PN357

JUSTICE GIUDICE: What is your attitude to it, Mr Gardner?

PN358

MR GARDNER: Well, I think we are in exactly the same position. I hadn't realised that that foot was actually - it must be Ms Greenaway's. I hadn't realise that she was in Court and available for cross-examination, your Honour.

PN359

JUSTICE GIUDICE: Yes.

PN360

MR GARDNER: Yes.

PN361

JUSTICE GIUDICE: Well, I have accepted both affidavits.

PN362

MR GARDNER: Yes, that is where it is, your Honour.

PN363

JUSTICE GIUDICE: That is where it stands.

PN364

MR GARDNER: Yes, I think so.

PN365

JUSTICE GIUDICE: If anybody wants to cross-examine they should indicate that.

PN366

MR BLACKBURN: Your Honour, I think there is nothing for our part, most of it appears to go to matters which occurred after the making of the interim award so I don't know that they are particularly relevant to the submissions that we would make in this matter anyway, the stay that is. I think they are tendered on the basis that the submission - that the affidavit is relevant to the balance of convenience.

PN367

MR GARDNER: Your Honour, it does one other thing - I am sorry.

PN368

JUSTICE GIUDICE: Yes, Mr Gardner.

PN369

MR BLACKBURN: It is slightly beyond balance of convenience. It is also relevant to the question of access to the workplace.

PN370

JUSTICE GIUDICE: Yes.

PN371

MR GARDNER: Which touches on balance of convenience as well but it is part of the history. Your Honour, one thing that I need to, I think, emphasise is this question that the Commissioner did not, it is submitted, make the mistake claimed by the appellant that you can't have both. We emphasise that that was not the approach the Commissioner took. He said, in argument early on, that his actual decision does not suffer from the vice alleged by Mr Blackburn. The point made about section 170XF, contrary to Mr Blackburn's submission, we say is also relevant to the question of genuineness.

PN372

If the employer had of been on the ball on that question then it would have, presumably, been seeking identification of the relevant award. The clear conclusion to be drawn from the tenor of the witness statements affidavits filed today is that the company is not observing the terms of the award and, it appears, doesn't propose to do so at least until 1 April and indeed has something of a difficulty in observing the terms of the award.

PN373

We say, your Honour, that that is all the more reason why the Commission should ensure that the minimum entitlements are there and continued. Your Honour, there is one other thing I want to raise and that is that Mr Blackburn raised the question of an alternative and it appears to me that the union has an alternative position as well. Mr Blackburn suggested that as an alternative he would be prepared to give an undertaking not to proceed with AWAs pending the outcome of the appeal.

PN374

If that undertaking were given by the employer, together with an undertaking to permit access in accordance with the provisions of the Act, albeit it would only be in accordance with the provisions of the Act because it wouldn't technically apply, then the union would be content with the stay - subject to one further matter, your Honour. That we make clear is also very much an alternative, your Honour, in circumstances where these employees are losing the benefit of conditions as a consequence of a very unusual conjunction of circumstances arising from the state legislation. Will you just excuse me for one minute.

PN375

JUSTICE GIUDICE: Yes.

PN376

MR GARDNER: Your Honour, Ms Maloney quite rightly points out that I haven't made it clear to the Commission that the - all the attempts in terms of negotiation with the company have come from the employer - from the union, at least, and that the Commission may have gained an impression that it was the company who were pressing and seeking to negotiate a certified agreement well before the making of a bargaining - giving of a bargaining notice.

PN377

FSU9, which is the chronology, makes it clear at points 6 and 7 that it is actually the union that is on the front foot in terms of the question of a certified agreement or not and it was them that had to pursue the matter. And we say that simply the correspondence from the company doesn't make good the argument put by Mr Blackburn and that the union continued as late as 30 January to indicate its preparedness to negotiate. But that was at the very time when the union, of course, was saying, "Well look, this isn't a genuine bargaining period at all." Those are our submissions.

PN378

JUSTICE GIUDICE: Mr Gardner, can you explain to me how the salaries clause can be applied in its current form or was that a matter you would need some instructions on?

PN379

MR GARDNER: Well they are part of the same group, your Honour, and that in circumstances where the clause applies to classifications known to the union, known to the St George Group, if they want assistance in it we can assist them. And I think that has been made clear already in the correspondence.

PN380

JUSTICE GIUDICE: Yes, thank you. Yes, Mr Blackburn.

PN381

MR BLACKBURN: Thank you, your Honour, there are some matters arising. Firstly, Mr Gardner, early in his submissions, indicated that Sealcorp was in a position to deal with the matter on 17 February because a senior representative of Sealcorp was in the Court at the time. Ms Thompson, as I have indicated at paragraph 369 of the transcript, sought an adjournment to obtain instructions from that representative and was denied that opportunity. In any event we say that even without any evidence - - -

PN382

JUSTICE GIUDICE: I am sorry, Mr Blackburn, I have been going back over the transcript as best I can. Could you just direct me to where that occurred?

PN383

MR BLACKBURN: Yes, your Honour, at paragraph 369. Ms Thompson says:

PN384

Sir, in relation to whether the notice is genuine or not we would seek the matter be adjourned ...(reads)... witnesses on that matter and, sir, I seek that as a threshold issue.

PN385

Now - - -

PN386

JUSTICE GIUDICE: Yes. Thank you.

PN387

MR BLACKBURN: Well, I should add that contrary to what my friend was putting a moment ago that is not an expression on the part of - a desire on the part of Sealcorp to have the award arbitrated. It is an expression of its desire to call witnesses and bring submissions in relation to the validity of the bargaining notice. In fact, the following paragraph - while we have the page open - Ms Thompson says:

PN388

In relation to whether a draft order should be issued roping Sealcorp in you haven't even had conciliation yet.

PN389

And so then she says, at 371:

PN390

And further, in relation to that award we raise several issues in the ..... and evidence and so forth.

PN391

So while Ms Thompson indicates Sealcorp wishes to call evidence in relation to the making of an award yet so far the first step is to obtain instructions and call evidence in relation to the bargaining notice. The next step is to conciliate and so she is only foreshadowing what Sealcorp would wish to do if the matter came to the point of arbitration. But in any event we say that even without any additional evidence from Sealcorp the Commissioner was not in a position, on the material before him in our view, to come to the view that the bargaining notice was a sham.

PN392

Mr Gardner has referred to an earlier proceeding for Commissioner Raffaelli on 30 January in which Commissioner Raffaelli referred to Sealcorp's refusing to give access - allow access to union representatives, and basically said, or inferred - said on 30 January:

PN393

Well isn't that an issue that would go to genuineness?

PN394

The first point I would make about that is that Commissioner Raffaelli did not refer to the issue of access in his reasons on 17 February. My friend has tried to assert that he did, inferentially, through the need to provide employees with award protection. We say that is a very tenuous argument in our view. He didn't refer to that issue and that issue ought not form part of his reasons. But in any event, the issue of access is something that could well have been negotiated, and presumably would have been negotiated, had there been negotiations between the union and the Sealcorp about the certified agreement.

PN395

But in fact, as the transcript shows, until 17 February the union had not indicated preparedness to negotiate an agreement with Sealcorp. And even then, on 17 February, they only did so subject to a safety net award being made first. The union has sought to make something of the fact that the range of matters referred in the bargaining notice, being those matters set out in the union's log, is broader than the matters that were dealt with the in AWA and to somehow infer from this, "Well, they obviously didn't seek a certified agreement containing all of those matters because look at what they include in the AWA."

PN396

It was only a subset, if you look, of the matters contained in the log and there was a disjunction, to use my friend's word, between the log and the AWA. But we say there are a range of ways in which an agreement can deal with particular matters. The union has served a log of claims, saying that it genuinely wants to have an award made to cover all of those matters - and the Commission will notice awards are often made which are less extensive than the log. In reply, Sealcorp is saying we would rather have a certified agreement dealing with those matters.

PN397

Now the Act does not - the bargaining notice does not require that all of the matters in the bargaining notice be included as substantive conditions in a log, it simply requires the notice to refer to those matters that are proposed to be dealt with by the agreement. And there is a range of ways in which the matter can be dealt with by an agreement. For example, the agreement could contain something less than the entitlements sought by the union in this log of claims, or the agreement might result in an agreement to defer consideration of those matters, or simply to acknowledge the claim forms in an agreement not to proceed with those matters and that is how those matters are dealt with.

PN398

So that nothing arises from the fact that the AWA which was offered is less comprehensive than the log of claims to which the ..... has referred. Your Honour, my friend referred to a decision of the Full Bench of the Commission - which I don't have available - which stated and, we have no difficulty with this, that there needs to be more than simply a strategy there must be a genuine intention to bargain. And we again refer to the fact that prior to the bargaining notice the employer invited the union to negotiate a certified agreement and the union did not come back with a positive answer.

PN399

It came back and said, "Well, we are still considering." Now, if the union had wanted to test the employer's genuineness there was the perfect opportunity for it to do so, but it didn't, and the employer restated its position when the matter came before the Commission. Now in the context of dealing with genuineness of logs of claims and whether union demands are a sham or not, the Hight Court has said at PKIU v Avista, ..... case was one such case in which it was said that as long as the motives are seriously advanced the fact that there might be some collateral advantage to the notifier does not affect the genuineness of the notice.

PN400

And that is in the context of the initiation of an industrial dispute, as long as it has asked for the intention that it be pursued it doesn't matter whether it may be motivated in part by some consideration or some perceived collateral advantage. The High Court has said that in relation to - certainly whether an industrial dispute is a sham. And we say the same thing here, that there may be a collateral advantage, there obviously is in the service of a bargaining notice, but as long as the bargaining notice is served with the genuine intention of entering into negotiations with the union then we say that isn't all that is required.

PN401

My friend has indicated that it was disingenuous of Sealcorp to suggest that it was unclear about the purpose of the proceeding on 17 February. But the point here is that Sealcorp contacted the union on 13 February and asked them what the purpose of that proceeding on the 17th was, and on the 13th the union responded that it had not determined what it was going to seek from the proceeding. Now if it was obvious to all then surely, unless the union were being disingenuous - and we don't say that - the union could have told Sealcorp on the 13th exactly what it was seeking from the Commission on the 17th. And that didn't occur until the union sent a letter on 16 February which is now before you as - I think it was G1.

PN402

Now the - my friend has indicated, quite rightly, that the requirements of procedural fairness have to be determined according to the circumstances. But in this case there was nothing that prevented Commissioner Raffaelli from granting a short adjournment. There were two sets of AWAs that had been put out. The first was on 7 February, that there was a difficulty with our AWA because it contained a confidentiality clause which would have prevented it from being approved. The second was on 13 February.

PN403

Both sets of AWAs could not have been signed for 14 days so the second date, the valid AWA sent out on 13 February couldn't have been signed by employees until 27 February which was 10 days after the hearing before the Commissioner. So in that circumstance there was ample time in which the Commission could have granted simply a short adjournment to obtain instructions and to prepare a case. Well, Mr Gardner then proceeded to the discuss the effect of the state agreements expiring and correctly identified the fact is that those conditions now form part of employee's contracts of employment.

PN404

But first thing to say, that is not why the Commission acted as it did, it is apparent the Commissioner was aware that those state workplace agreements were about to expire when he set down a timetable for the future determination of these matters. What caused him to make the interim award on 17 February was simply the fact that the employer had employed AWAs. That was the issue. My friend has concluded by arguing what seem to us to be questions of merit but fundamentally, we say, the primary grounds of dealing with this matter go to questions of jurisdiction.

PN405

Was the Commission entitled to make the award - firstly on the basis of a bargaining notice which we say was valid and which we say there was not sufficient evidence to conclude it was not valid, when Sealcorp was reiterating its desire to negotiate with the union, when the Commissioner had not found conciliation had come to an end or if such a finding could be inferred was not entitled to find that conciliation had been exhausted and without providing Sealcorp with an opportunity, a reasonable opportunity, to present its case?

PN406

All of these are jurisdictional matters and so the questions of merit that Mr Gardner was arguing at the end, we say, did not arise. My friend has indicated the Commission did not, as part of its decision, err by forming the conclusion that AWAs and certified agreements are mutually inconsistent. But as appears from the decision in transcript, that he gave to Commissioner Raffaelli, there is no really other basis on which he could have found that the bargaining notice was a sham. It was purely the employer's action in initiating an AWA, or offering an AWA, which led him to conclude that ..... take that away.

PN407

If you take away - if, if Commissioner Raffaelli had been of the view that Sealcorp could offer AWAs and at the same time negotiate a certified agreement, it is not clear how he could have formed the view the bargaining notice was a sham.

[5.08pm]

PN408

Your Honour, there was a reference in the affidavit of Ms Drew. I think somewhere Mr Gardner mentioned it to Sealcorp refusing to - or indicating that it would not implement conditions of employment until 1 April 2003. I have not obtained any instructions in respect to that, but certainly I - and perhaps if I can get a brief adjournment - a brief moment to do that. Certainly, I would have thought the position would be that Sealcorp would certainly implement the award if the stay was not granted.

PN409

Now, as to that, your Honour, we have had a discussion about that earlier when you asked if Sealcorp was - the award already. I did indicate that there were - there have been negotiations between the parties right up until the day that the appeal was filed. Now, one of the conditions in an agreement that was being discussed between the parties, was that Sealcorp would not appeal a decision of Commissioner Raffaelli. And that is why the appeal was not filed until the last day, to allow those negotiations to occur. Unfortunately those negotiations did not eventuate.

PN410

Your Honour, I have not had the opportunity to discuss the issue that the Union has put, of the - whether Sealcorp would be prepared to grant access to the Union in the event that a stay was granted, but clearly it is open to - and I would ask that I perhaps a moment to obtain that instruction.

PN411

JUSTICE GIUDICE: Yes, I think the best way to do that might be - you could either leave the room, or use the mute button, but anyway you can arrange that, but if you want to do that now, by all means do so.

PN412

MR BLACKBURN: Yes, thank you, I will do, your Honour, thank you.

PN413

JUSTICE GIUDICE: Yes. Yes, Mr Blackburn.

PN414

MR BLACKBURN: Thank you, your Honour. Your Honour, Sealcorp's primary position is still that it wishes to continue to be able to offer its AWAs and there is sufficient protection in the AWA system through designation of awards and so forth, for the Commission not to be concerned about that occurring. So that is Sealcorp's primary position. But if a stay is granted, and Sealcorp will agree to provide access to the Union as if an award applied to Sealcorp. Our primary position though is that we should still be able to continue with the offer of AWAs, but as indicated previously, if the Commission requires it as a condition of stay that we withhold the offer of AWAs, then we would give that undertaking.

PN415

In either case, the issue of access is not one that we are concerned about and we give the undertaking in either case to provide access as if an award applied to Sealcorp. Your Honour, those are our submissions.

PN416

JUSTICE GIUDICE: Yes, thank you. Mr Blackburn, the question of the undertaking in relation to the AWAs, what precisely was the nature of that?

PN417

MR BLACKBURN: That Sealcorp would not seek to make any AWAs and would not sign any AWAs that were returned to it, pending the determination of the appeal. That is obviously AWAs with the employees the subject of this particular matter.

PN418

JUSTICE GIUDICE: Yes. Yes, thank you, gentlemen. I am in a position to give a decision on this matter. My reasons should be read in conjunction with the submissions which have just been made. In order to give a decision speedily, which I think is desirable, it won't be possible to properly or in detail set out the submissions that have been made. However, I think when my reasons are read in conjunction with the transcript, the basis for my decision should be clear.

PN419

This is an application by Sealcorp Holdings Limited for a stay of the operation of an award made by Commissioner Raffaelli at Sydney on 19 February 2003 pending the hearing and determination of an appeal made by Sealcorp against that order. In considering the application I have applied what might be regarded as the normal tests in applications of this kind; that is that there is a sufficiently arguable case that leave will be granted and that the appeal will succeed, and that the balance of convenience favours a stay or operation.

PN420

I have concluded there is a sufficiently arguable case that leave will be granted and that the appeal will succeed on two grounds. Firstly, the ground that there was a denial of procedural fairness in that Sealcorp was not permitted an adjournment to seek instructions and call evidence in relation to the ASU's application for an award to be made immediately. I am sorry, I said, ASU, I should have said, FSU.

PN421

The second ground is the finding that the bargaining period was a sham. On that ground also I think there is a sufficiently arguable case that the finding was in error. I should point out that as is normal, I am not expressing a concluded view on these matters, simply making a judgment on the basis of what has been put to me as to whether or not there is a sufficiently arguable case.

PN422

In relation to the balance of convenience, I find this to be finely balanced, and I have borne in mind the Commission's statutory obligations under part 6, the provisions of the Act relating to agreements of various kinds, and the imminent expiry of various workplace agreements made with Sealcorp's employees pursuant to legislation of the State of Western Australia.

PN423

And because the matter is so finely balanced, I have decided that it is appropriate to require the undertakings which were put forward by Mr Blackburn on behalf of Sealcorp as a secondary position should the primary submissions of the Company not be upheld. Those undertakings are that Sealcorp would not seek to make any AWAs and would not sign any AWAs returned to it, pending the hearing and determination of the appeal. And secondly, that Sealcorp would provide access to the FSU as if an award applied to Sealcorp's employees pending the hearing and determination of the appeal.

PN424

As it is important that the precise undertakings be properly recorded in my order, I shall forward a draft to you, Mr Blackburn, within the next 24 hours, to ensure that the draft is correct, before signing the order. However, the order when signed, will of course stay the operation of the Commissioner's order, pending the hearing and determination of the appeal.

PN425

Is there anything else, gentlemen?

PN426

MR BLACKBURN: No, thank you, sir.

PN427

JUSTICE GIUDICE: Thank you for your assistance. I will adjourn.

ADJOURNED INDEFINITELY [5.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 AFFIDAVIT OF HANNAH GREENAWAY AFFIRMED 17/03/2003 PN212
EXHIBIT #G1 LETTER TO COMMISSIONER RAFFAELLI DATED 16 FEBRUARY PN307
EXHIBIT #G2 WITNESS STATEMENT OF CORINNE GLEN PN355