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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT10344
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WILLIAMS
DEPUTY PRESIDENT BLAIN
COMMISSIONER WHELAN
C2003/1522
APPEAL UNDER SECTION 45 OF THE ACT
AGAINST THE DECISION OF COMMISSIONER
ROBERTS ON 3 MARCH 2003 AT SYDNEY IN
C2002/1930
MELBOURNE
10.38 AM, TUESDAY, 15 APRIL 2003
PN1
SENIOR DEPUTY PRESIDENT WILLIAMS: I see we have in the court room a considerable number of students - I gather from the Victorian University of Technology. You are most welcome and I hope you can comprehend what takes place during the course of these proceedings which might, to some people, appear to be slightly complicated. However, the accommodation is not perfect. Would you please realise that not only the Commission but the advocates need to be able to concentrate on what they are doing.
PN2
If at any stage any of you wish to leave the court room you are of course welcome to do so but would you please do so as quietly as possible so that neither the Commission nor the advocates are interrupted by your so leaving. Could I have the appearances in the matter this morning, please.
PN3
MR M. BROMBERG: I seek leave to appear as counsel for Civil Air.
PN4
MR J. BOURKE: I seek leave to appear on behalf of Airservices.
PN5
SENIOR DEPUTY PRESIDENT WILLIAMS: I take it that there is no objection to leave being granted.
PN6
MR BOURKE: No objection on my part.
PN7
SENIOR DEPUTY PRESIDENT WILLIAMS: Leave is then granted. Yes, Mr Bromberg.
PN8
MR BROMBERG: Thank you, your Honour. Your Honour, this appeal deals with the decision of Commissioner Roberts of 3 March 3003 where the Commissioner declined to make an order that Air Services Australia provide to certain employees cost reimbursements required under the Air Services Staff Policy Manual. There are four matters that I want to ask the Commission to deal with and I would like to do that at the one time through a single set of - well, submissions, if I may. The first is to address leave to appeal. Secondly, I would like to deal with the merits of the appeal.
PN9
Thirdly, we have an application under section 45(b) that the Commission admit further evidence and, fourthly, I would like to address the Commission on the remedy sought including our application that the Commission deal with the matter itself and make an order in terms that I will hand up to the Commission in due course. Now, if I may proceed on that basis and I think I can be half an hour to 45 minutes at the most.
PN10
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, you go ahead.
PN11
MR BROMBERG: Can I start with the facts. A section 99 notification of industrial dispute was filed on 24 April 2002. If the Commission turns to that notification you will see that the dispute was said to concern Airport Services Group's Career Development Program and specifically the - - -
PN12
SENIOR DEPUTY PRESIDENT WILLIAMS: Is that contained in the - - -
PN13
MR BROMBERG: Page 13, yes.
PN14
SENIOR DEPUTY PRESIDENT WILLIAMS: 13, yes, thank you.
PN15
MR BROMBERG: And specifically the transfer of a member from Brisbane to Bankstown without consent. Now for clarification Airport Services Group is one of five business centres within Airservices Australia. It is responsible for tower operations. Essentially that is air space around the airport rather than en route or terminal air space which deals with approach and departures. It gets a bit complex but I don't think that we need to get into the complexity. The nature of the dispute at that time was limited, as you can see, to the transfer of a member.
PN16
When the matter came on the nature of the dispute was varied as indicated in the Commissioner's decision. Can I ask you to turn to the Commissioner's decision and specifically at paragraph 3 where - this is on page 5 of the Appeal Book - where the Commissioner notes that by reference to clarifications received from Ms Ponton of the union and then later Mr McGuane the Commissioner was told that the application is not confined to an individual being Mr Carter. It is an application that seeks to apply common principles to all of the group of employees who are affected.
PN17
It is not a dispute about Airservices' entitlement to transfer employees, it is accepted that they have that entitlement, and it is the entitlement under which those employees transfer that the dispute relates to. The nature of the order sought is at the bottom, towards the bottom of page 5 of the Appeal Book, where Mr McGuane says:
PN18
We are seeking that there be orders issue that compel Airservices to comply with the relevant provisions of the staff policy manual.
PN19
So that was the nature of the industrial dispute before the Commissioner. The facts before him were essentially those I want to go to now and to start with I want to show the Commission the classifications under the award and in particular the relevant classification at hand. Can I do that by handing up a folder which contains the award, contains the Airservices Australia Award 2000, the Airservices Australia Enterprise Agreement 1998-2001 and the Airservices Staff Policy Manual. Now can I say this about the manual, what was before the Commissioner was an extract of the manual, not the entirety of the manual.
PN20
What we seek leave to put before the Commission is the entirety of the manual because in interpreting the manual and a particular provision of it as the Commissioner did we say it is necessary to look at the whole manual, including the Definitions section which the Commissioner didn't look to. Now my learned friend, I think, wants to reserve his objection about the reception of the entirety of the manual and I have no problem with that and when I come to it the Commission will see why it is we say it is necessary that the Commission have regard to it. So - - -
PN21
SENIOR DEPUTY PRESIDENT WILLIAMS: Is that correct, Mr Bourke?
PN22
MR BOURKE: We do object to the full manual coming in. We are happy for it to go before the Commission subject to my objection and for the Commission to ultimately rule on the matter at the end of the day rather than in running.
PN23
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes.
PN24
MR BROMBERG: I am grateful to my friend and can I hand up a copy to each member of the Bench of those three documents.
PN25
PN26
MR BROMBERG: Now can I start with the award and take you to clause 23.4 of the award which gives the definitions for three classifications in the traffic controllers - in fact, four - and it is necessary for the Commission to understand the nature of these classifications. At 23.4.1(a) a definition is given for trainee air traffic controller and that is a person who is classified as in training whilst undertaking an initial training course in the theory of air traffic control procedures and then undergoing on-the-job training assessment to determine eligibility to hold an air traffic controller licence. So that is a person in school, as it were, and you will see in the evidence, in the air traffic control capabilities, Melbourne College.
PN27
Then the next classification is that of an air traffic controller who is defined to be an employee who has completed initial training and been assessed as competent to be granted an air traffic control licence:
PN28
Whilst employed as a controller an employee progresses through a training program designed to achieve full performance controller status within specified time scales. Controller may be employed in one or more of three functional streams: en route, control tower control and terminal area control.
PN29
And if you look at 23.4.2 you will see there is a far better definition of tower than I was able to give. Now the employees in question in these proceedings are air traffic controllers within that definition and the issue that arises relates to the transfer of that category of employee in order to facilitate career development, specifically the training program which is referred to in the definition. Then there is a definition for a full performance controller and that is a fully qualified air traffic controller who is capable of performing all the technical functions within a teams area of operations or at a specific location, and I don't need to read the rest.
PN30
Now as I said the trainees, that is a trainee air traffic controller spends, I think, two years in the air traffic control capabilities at Melbourne College. On completion they are granted a licence and allocated to a tower and progress through the training program which is referred to in the definition of air traffic controller. So that having finished at the College and being granted an air traffic control licence the relevant employees are employed as controllers although they are still required to do what might be conveniently called further on-the-job training. Now what I have just said is essentially to be found in the evidence and can I start with page 45 of the Appeal Book.
PN31
This is a memorandum from Airservices Australia to trainee controllers, including Mr Carter - you can see Mr Carter's name in the second line of the memo - and it is dealing with post-graduation training and career development and it says that:
PN32
Subject to the successful completion of your training at Melbourne Training College in August 2001 you will be required to undertake field training as part of your ongoing ...(reads)... beneficial to both the individual and Airport Services -
PN33
and I underline the benefit to Airport Services because there may be an issue, as there seem to have been for the Commissioner, as to whether a air traffic controller was required to transfer or was simply doing this as a benefit, as a personal benefit as it were. Then there are some more details about the program. You will see over the page there is a reference to accommodation and it said:
PN34
Airservices will meet the costs of the first three weeks of accommodation and meals at each location at your field development.
PN35
And it is because Airservices were only prepared to meet certain costs and not the entirety of the costs that are due under the staff manual, which I will come to, that this dispute arises. Now just moving through, on page 47 of the Appeal Book this is the request of Mr Carter - this is confirmation of Mr Carter's request to undertake his initial field training at Brisbane. So this is - now that he has been licensed he goes to Brisbane. You will see that is dated 3 July 2001. There is then a letter on the next page confirming that he is employed by Airservices Australia as an air traffic controller and then about a year later, 12 April 2002 - not quite a year - he is congratulated on his progress as an air traffic controller in Brisbane. It is then said to him:
PN36
As part of the ongoing career development program your group leader is satisfied that you have consolidated your initial ratings in Brisbane. As such it is opportune that a transfer to another air traffic control environment is required. The second phase of the program is a placement in a GAAP tower environment -
PN37
where he is expected to obtain other ratings and endorsements and penultimate paragraph states that
PN38
Airservices requests that you be available for transfer in early May 2002.
PN39
I also emphasise the word "required" in the second paragraph. It is clear that what is being done here is a direction that he transfer to - in order to gain access to the further on-the-job training that is required by Airservices Australia. Then the next document tells us that he is being advised that he will be transferred to Bankstown Airport. There is then a letter from Civil Air notifying that the transfer is a matter of dispute and then a reply which I want to go to at page 52 which tells us some more about the career development course here in question. The second paragraph Airservices says:
PN40
The course 03 graduates are well aware that transfers to the radar, GAAP and regional air traffic control environments are scheduled to occur following the graduation from the College. The initial phase of the career development program, which is the radar environment, is coming to an end -
PN41
for Mr Carter that was the Brisbane phase -
PN42
The second phase requires the individuals concerned to further develop the skills gained in a radar tower by achieving the required ratings and endorsements in GAAP towers. All course 03 journeymen are required to transfer to GAAP towers as part of the scheduled program.
PN43
Again we say it is clear that a transfer was imposed and required by the employer. Now in the proceedings before the Commissioner Civil Air put to the Commission that the staff policy manual applied in relation to travel costs and other reimbursements upon transfer. Can I take you to the manual and indicate what sections of it are relevant. You will see at page 11 of the manual a section headed, Definitions. Now I should say that this wasn't before the Commissioner. He had before him the section headed, Allowances and Reimbursements which follows about, I think, two or three pages on from the Definitions page. You will see a definition is given of employee and it is defined as:
PN44
A person who is employed with Airservices on a permanent or temporary basis. Unless specified otherwise employee will refer to all the employees, both temporary and permanent.
PN45
Moving then to section 1 under the heading, Allowances and Reimbursements, 1.1.2 deals with temporary transfers and tells us that a temporary transfer is:
PN46
...when an employee takes up duties temporarily away from his or her home to a location for a period not expected to exceed 12 months and the transfer is not a term transfer.
PN47
A term transfer is a transfer for a period of one to two years and that is defined at 1.1.4. Then if you move to clause 1.2, and specifically 1.2.1. Sub-paragraph (a) says:
PN48
Travel and transportation costs incurred by employees -
PN49
I emphasise the word "employees" -
PN50
and dependents on transfer or promotion will be met by Airservices. Where a transfer does not involve promotion and is arranged for the convenience of an employee, rather than to enhance the efficient running of Airservices, the authorised officer will determine the level of assistance to apply, if any.
PN51
Now there was some reliance placed in the proceedings before the Commissioner by Airservices on the second sentence in this paragraph and some suggestion that the transfers relevant to the proceeding or to the dispute involved the convenience of an employee rather than the efficient running of the service. The Commissioner rejected that, not in terms but seems to have rejected it, but I draw that to your attention. (b), it tells us that the standard of travel is as defined in section 23; (c):
PN52
The basic principle Airservices will use in the application of these provisions is that employees will be recompensed for expenses incurred in fulfilling Airservices' requirements.
PN53
And 1.2.2 sets out the nature of the entitlement to be recompensed and it does so in fairly detailed terms, including by reference to other provisions in the manual. The manual is a document made by the Board of Airservices Australia pursuant to section 45 of the Airservices Act 1995 - I am sorry, I said 45, I meant 42. Can I hand up a copy of that section. The provision simply says that:
PN54
Airservices Australia -
PN55
which is defined earlier as AA -
PN56
may employ persons on terms and conditions determined by the Board in writing.
PN57
PN58
MR BROMBERG: So I don't think that matter is at issue but the Commission can see the power to make the instrument and the Commission has now been taken to the relevant parts of it. I shouldn't call it an instrument, it is not an instrument; it is a manual, it is a policy manual.
PN59
SENIOR DEPUTY PRESIDENT WILLIAMS: Are you going to address it at some stage between - the relationship between the award agreement and the manual because the award contains definitions too, doesn't it, in relation to transfers?
PN60
MR BROMBERG: Yes, it does but I don't think, your Honour, that it deals with reimbursement. The award as I understand it is silent on that issue.
PN61
SENIOR DEPUTY PRESIDENT WILLIAMS: That is as I read it too.
PN62
MR BROMBERG: Yes.
PN63
SENIOR DEPUTY PRESIDENT WILLIAMS: But the first question I had was that were the definitions any different as between the award and the manual and, secondly, where does the manual sit with the other industrial instruments?
PN64
MR BROMBERG: It sits as a supplementary document which provides for, in this respect, additional entitlements determined by the Board under the Act as being appropriate.
PN65
SENIOR DEPUTY PRESIDENT WILLIAMS: And as I apprehend it in the proceedings before Commissioner Roberts it was agreed that the manual did apply to the employment of these employees. The difference was that the employer said in this respect it didn't apply to these employees, is that correct? That they were not covered by the transfer provisions of the manual?
PN66
MR BROMBERG: Yes. Yes.
PN67
SENIOR DEPUTY PRESIDENT WILLIAMS: In respect to recompense?
PN68
MR BROMBERG: Yes. Well, no - with respect, no, your Honour.
PN69
SENIOR DEPUTY PRESIDENT WILLIAMS: Or that if they were covered it was for their convenience and therefore that section applied?
PN70
MR BROMBERG: The argument as I understood it, put by Airservices, was not that the provisions in question didn't have application because the persons here involved were not employees within the scope of the provisions. The argument, as I understood it from the transcript and the written submissions, was twofold. The first was that if these entitlements were accorded to the relevant employees that would be an unsustainable situation and the second aspect was a suggestion that transfers were really at the convenience of the employees and therefore outside the purview of the section.
PN71
What the Commissioner does, and does for the first time on his own motion, is take up an argument, which ultimately succeeds, that the manual or this part of the manual doesn't apply to air traffic controllers other than full performance controllers.
PN72
SENIOR DEPUTY PRESIDENT WILLIAMS: But you say it goes beyond what the employer was putting - - -
PN73
MR BROMBERG: Yes.
PN74
SENIOR DEPUTY PRESIDENT WILLIAMS: - - - in the proceedings before him.
PN75
MR BROMBERG: It certainly does and I want to make an argument about that in a moment. Well, really, I was coming to it. The argument about the access to the entitlements by air traffic controllers in on-the-job training and it being unsustainable is at page 56 of the Appeal Book. You will see that these are the submission of Airservices and at 8.4 and 8.5 the unsustainable submission is put and it is a submission which was supported with no evidence whatsoever and ultimately is a submission that was rejected, not in terms but the Commissioner placed no reliance on that.
[11.10am]
PN76
Then if you go to the transcript at paragraph number 110 through to paragraph number 113 - it is on page 6 of the transcript - you will see there that clause 1.2.1 is referred to by Mr O'Brien and in particular the second sentence dealing with the convenience of the employee, and there is then I think a suggestion, maybe not an argument clearly put, but a suggestion that it is apparent from the clause referred to that there is no coverage for what is called trainee controllers who gain considerable experience and knowledge by having access to these arrangements.
PN77
Now the Commissioner, in our respectful submission, rightly rejected both those arguments, firstly, because there was no evidence to support the first and, secondly, because the interpretation - well, the proposition that the transfers in question were for the convenience for the employee rather than to enhance the efficient running of Airservices was simply untenable on the evidence. But he found a fresh basis upon which to found his decision to reject the application and that is to be seen at paragraph 26 of the decision. He says at paragraph 26 on page 11 of the Appeal Book:
PN78
From a careful examination of the submissions of the parties and the terms of the award agreement and the manual I find that the persons being temporarily transferred as part of the ...(reads)... not to persons who are effectively trainees.
PN79
And then he refers to clause 5 of Appendix 6 to Schedule B of the agreement which simply says:
PN80
A fully qualified air traffic controller will be known as a full performance controller.
PN81
Now in our respectful submission that finding is simply untenable when one goes to the manual. Given that the argument here was not argued - that is, the argument relied upon was not argued by Airservices it is plain that Civil Air did not have an opportunity to deal with it and can I say in respect of that, that that does involve a breach of natural justice in the sense that Civil Air was not given an opportunity to be heard on the matter which ultimately determined the case. In passing can I refer to Arnell's case in the High Court and also the PTC apprentices case. I should have a reference and I am sorry, I don't, but I think the Commission - - -
PN82
SENIOR DEPUTY PRESIDENT WILLIAMS: I know it well.
PN83
MR BROMBERG: Yes. Now can I also rely on that as an additional and important ground for leave to appeal and I say that because failure to accord natural justice is a jurisdictional error and the Commission does routinely, if I might say so, grant leave in relation to jurisdictional errors. Secondly, it is in the public interest that an applicant not be denied access to the Commission's jurisdiction and the remedies available in circumstances where the applicant has not been given an opportunity to deal with the very point by which the Commission rejects the application. So it is very important in a public interest that what Civil Air has to say about the ultimate point that found merit with the Commissioner be heard and it is necessary for leave to be granted in order that that occur.
PN84
Now that also - that submission also supports the exercise of the Commission's discretion to admit further evidence because clearly if Civil Air had been aware that it was potentially facing an argument that these employees were not within the purview of the section in question in the manual then Civil Air may well have referred the Commissioner to the entirety of the manual, including the definitions section, etcetera. So that in our respectful submission it is clear that the discretion to admit the further material is appropriately exercised in this case. Now we say the decision is clearly wrong. I have pointed you to the very clear and unambiguous definition of employee, including the words:
PN85
Unless specified otherwise employee will refer to all the employees, both temporary and permanent.
PN86
There is nothing in Part 1 of the Airservices manual which does specify that the reference in that section to employee is otherwise than a reference to all employees, both temporary and permanent, and throughout the relevant sections of the manual that we rely upon the term employee is used without qualification. There is no basis for the Commissioner having come to the view that when the word "employee" is utilised in that section it should be interpreted to read a fully operational air traffic controller. In our respectful submission the position is beyond doubt.
PN87
There is a further document that we seek to tender and have the Commission exercise its discretion and receive. It is a document headed, General Conditions of Employment for ATC Trainees. Can I hand up a copy.
PN88
SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Bourke, are you objecting to this document or are you taking the same approach as you did with the earlier document?
PN89
MR BOURKE: Taking the same position, your Honour.
PN90
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, thank you.
PN91
MR BROMBERG: This is - - -
PN92
PN93
MR BROMBERG: You will remember, and if you don't I would like to remind you, that Commissioner Roberts' decision in this respect was based on his interpretation that the relevant provisions didn't apply to trainees and in his decision he, in our respectful submission, was quite wrongly referring to air traffic controllers, that is licensed controllers of the kind we were here dealing with, as trainees. But what this document shows is even those persons who are trainees in the school in the classification of trainee air traffic controller are entitled to the benefits of the Airservices Australia Staff Policy Manual.
PN94
You will see that in the first paragraph under appointment conditions they are clearly employees even whilst they are in the school and they are employed under the Airservices Act on terms and conditions of employment as are described in the Airservices Australia Award, the Airservices Australia Enterprise Agreement and the Airservices of Australia Staff Policy Manual and I note on the third page there is a reference to the on-the-job training, it is under tower trainees, the on-the-job training, once they have qualified which we have seen reference to before in other documents.
PN95
DEPUTY PRESIDENT BLAIN: Where was that, Mr Bromberg? Where was that definition you are referring to?
PN96
MR BROMBERG: On the third page, your Honour, you will see the heading, Tower Trainees.
PN97
SENIOR DEPUTY PRESIDENT WILLIAMS: It is the fourth page in the document we have.
PN98
MR BROMBERG: I am sorry, it is the fourth page of mine too. You will see the heading, Tower Trainees, and there is just then advice given about the fact that once trained they will be posted to various places in the development process that we have seen referred to in documents I took you to earlier.
PN99
SENIOR DEPUTY PRESIDENT WILLIAMS: On the second page is a reference to transfer assistance at Melbourne College.
PN100
MR BROMBERG: Yes. Yes, that is worth going to too because what this indicates is that some assistance will be given to the employee to move to the initial location of employment. It is not a transfer between locations once employed but some assistance is given to bring trainees to be employed in Melbourne and taken through the course.
PN101
COMMISSIONER WHELAN: Because that is where the College is basically?
PN102
MR BROMBERG: Yes.
PN103
DEPUTY PRESIDENT BLAIN: Is there any reference however, as I thought you were submitting under Tower Trainees, that they are employees?
PN104
MR BROMBERG: No, the reference to the fact that they are employees is to be found in the first paragraph under appointment conditions:
PN105
ATCs in training are employed under the Airservices Act 1995.
PN106
DEPUTY PRESIDENT BLAIN: Thank you.
PN107
COMMISSIONER WHELAN: Can we just go back to that last page under Tower Trainees.
PN108
MR BROMBERG: Yes.
PN109
COMMISSIONER WHELAN: That seems to indicate in the second line that tower trainees will then be required to transfer to capital city GAAP towers or regional towers for periods of between three and five years. Does that mean that they are considered to still be in training for that period until they become, what is the term, full performance controllers?
PN110
MR BROMBERG: They are gaining what is called further ratings. They are getting further experience and skills. They are air traffic controllers at this stage - - -
PN111
COMMISSIONER WHELAN: Yes, but there is a bit of a fudging, isn't there, of the terminology, that is what I am asking you, because this still refers to people as trainees although the award doesn't seem to describe these people as trainees?
PN112
MR BROMBERG: No, they are licensed air traffic controllers but the award does refer to the fact that they are involved in on-the-job training.
PN113
COMMISSIONER WHELAN: In on-the-job training, yes.
PN114
MR BROMBERG: Yes. Now can I then come to the remedy that is sought. We ask the Commission to grant leave to appeal. We ask the Commission to quash the decision pursuant to section 45(7) and we ask the Commission to exercise its power under section 45(7)(b) to make an order dealing with the subject matter of the dispute. Now can I say in relation to that the dispute notification was filed on 24 April 2002. The proceeding was heard on 30 May 2002. Commissioner Roberts decision is dated 3 March 2003. I am not sure I can say that the matter is inherently urgent but it has been around for a long time and should be dealt with and should be dealt with speedily in our respectful submission.
PN115
PN116
MR BROMBERG: The order begins by defining the manual and the draft order provides as follows:
PN117
Where an employee in the career development program of the Airport Services Business Centre of Airservices Australia be required to transfer to a new location the employee shall be accorded the allowances and reimbursements specified in clause 1.2.2 of the manual or any successor provision thereto.
PN118
We confine the order to the employees in the career development program, they are the employees that are the subject of the dispute. The dispute, as I understand it, only relates to this particular business centre, that is the Airport Services Business Centre, of Airservices Australia so that we have confined the order to the problem in hand and in paragraph 2 the following is provided:
PN119
Nothing in this order shall preclude the Board of Airservices Australia from varying the manual to exclude such an employee from the operation of clause 1.2.2 or to otherwise vary the allowances and reimbursements provided under the manual to such an employee.
PN120
What is sought in the resolution of the dispute is not a new entitlement. What is sought is that the Commission resolve the differences between the parties as to whether or not an existing entitlement under the manual is applicable. That the Commission confirm the application of clause 1.2.2 by order without the Commission dealing with or foreclosing whatever capacity there is for the employer to address the entitlements conferred by the manual by altering the manual and it is an order, in our respectful submission, which was always justified and is justified.
PN121
We are not asking the Commission to deal with the merit of whether the entitlement should exist or not. It does exist, in our respectful submission. There is a dispute as to its existence and a dispute, that dispute can be resolved by the Commission confirming its existence and requiring that it be observed and the orders sought effect that purpose. They are appropriate in the circumstances and in our respectful submission orders of the kind sought would be an appropriate exercise of the Commission's jurisdiction to make orders under 45(7)(b) of the Act. If the Commission pleases.
PN122
SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Bromberg, I take it you are aware that the respondent has filed some contentions in relation to jurisdiction. I am not asking you to deal with them now, I am asking you whether you are aware of that fact.
PN123
MR BROMBERG: I am aware of them.
PN124
SENIOR DEPUTY PRESIDENT WILLIAMS: I would assume that you were waiting to hear what the respondent had to say about them before you addressed them?
PN125
MR BROMBERG: I am because to be honest, although my friend gave me some clarification before the Commission came in, I didn't quite understand what was intended by them and I really need to hear my friend about them before dealing with them.
PN126
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, Mr Bourke.
PN127
PN128
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes.
PN129
MR BOURKE: One of our primary complaints, if the Commission pleases, is that really there has been a re-writing of Civil Air's application as the application has proceeded, both before the Commission and on appeal, and that, for example, any complaint that some argument wasn't directed to our attention which we will deal with is a little hollow in that the argument was being re-shaped on the run and an indication of that is further material is now being put before the Full Bench and the order that is now sought from the Full Bench is the first indication of an order in that form being sought by the Commission.
PN130
The order sought was never formulated below in relation to Commissioner Roberts and I will say something about that. The first document you were taken to was the notice of the - the original notice of dispute and that talked about a complaint about the unlawful transfer of people concerned - that is at Appeal Book 13 - the unlawful transfer of people in relation to the career development program; that it was without consent. So that fundamental basis for the application coming on before Commissioner Roberts was completely dropped during the running of the case.
PN131
You then had Civil Air saying Airservices are failing to comply with the award and the relevant provisions of the manual. They had two complaints: failure to comply with the existing obligations of the award and the manual. Half-way through the case they dropped the complaint of failure to comply with the award and they said you are failing to comply with the manual and in relation to, and this is our fundamental jurisdictional point, the whole case was argued in the end on whether the manual - whether Airservices was complying with the manual. That was the core and heart of the case and there is no denial of natural justice when Commissioner Roberts said there was no non-compliance because my construction of those relevant sections of the manual do not apply to people who are going through this training process in the career development program.
PN132
That was the heart of the case and the case was not we want an award to ensure that these people in the future have this type of entitlement as part of their protection which would be the exercise of arbitral power. The fundamental basis and the way the argument was brought by Civil Air was that the right is there under the manual and Airservices are failing to comply with that existing right. They were effectively asking the Commission to enforce existing rights which were clearly already enforceable. The manual, there was no argument that the manual applies and has to be abided by by Airservices but we said that part of the manual did not apply to people going through this training process. If we are wrong we will abide by it.
PN133
There was no argument that the manual otherwise doesn't apply. As my learned friend pointed out the manual is created pursuant to determinations made under the power under section 42 of the Airservices Act which state that they will then become the terms and conditions of employment. So there is a clear statutory and contractual basis for Airservices to be bound to abide by anything in the manual if it is applicable to these people and there is further recognition in the award - I think you have the award in that large folder but we have also - we can hand up, it is ease for reference, clause 37 of the award where there is also recognition in the award of the role of the manual indicating that:
PN134
PN135
MR BOURKE: Thank you, your Honour.
PN136
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, go ahead.
PN137
MR BOURKE:
PN138
...shall determine the terms and conditions of service of employees in a Board determination to be known as the staff policy manual subject to the provisions of clause 39 -
PN139
which are not applicable -
PN140
The parties to this award have reached agreement on that the staff policy manual shall not be varied without agreement of the parties to this award and the parties to this award have agreed that any variations to the staff policy manual be consistent with the maintenance - - -
PN141
COMMISSIONER WHELAN: I was going to say - - -
PN142
MR BOURKE: No, it has just been pointed out that that did - - -
PN143
COMMISSIONER WHELAN: The paid rates nature of the award might have been a bit of a problem.
PN144
MR BOURKE: It did not survive simplification. I have just had that pointed out. But there was a previous recognition of the role and it was treated essentially as a paid rates document, which it was, because it set out terms and conditions of employment, not minimum - the terms and conditions of employment.
PN145
SENIOR DEPUTY PRESIDENT WILLIAMS: Is that clause then at all in the current award?
PN146
MR BOURKE: That is what I have just - been drawn to my attention that it was excised in the process of simplification.
PN147
SENIOR DEPUTY PRESIDENT WILLIAMS: It was totally excised?
PN148
MR BOURKE: Correct.
PN149
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, not just paragraph (c)?
PN150
MR BOURKE: That is correct.
PN151
SENIOR DEPUTY PRESIDENT WILLIAMS: The whole of clause 37?
PN152
MR BOURKE: The whole - yes.
PN153
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes.
PN154
MR BOURKE: But there was a proper basis in which these determinations - the source of power was through statute, there was clear power for enforcement and what was being sought was not an exercise of arbitral power saying this is what should apply in the future to these people, but the enforcement of an existing right that was already there. That was why you did not see any formulation of an award or proposed order being submitted to the Commission below and the whole case was argued essentially on a construction issue as to whether those provisions regarding transfer allowances applied or not - as a matter of construction, not in what would be an arbitral question, as a matter of industrial fairness they should be in the award.
PN155
As my learned friend said in closing we are not seeking a re-argument of the merits. There was no fundamental submissions on the merits of it going into the award which is the type of thing you would expect in an exercise of arbitral power particularly in circumstances where any variation of an award has to meet the minimum safety net guidelines. Effectively this was a de facto attempt to just say please enforce what is already a contractual entitlement and we say that is not the role of the Commission to just enforce determinations which have been issued pursuant to an Act. They either had a good point or they didn't that these provisions applied to these people going through this training process.
[11.40am]
PN156
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, you say that is the way it was argued. Was at any stage an argument put to the Commissioner that he didn't have power to make any award?
PN157
MR BOURKE: The argument was not put by Airservices but very interestingly it was raised by the Commissioner below and if I could take you to those passages - just bear with me. We have provided in our large folder at tab 1 the transcript on 30 May because we found that in our Appeal Book there were some pages missing from that so it may be more convenient to operate from that.
PN158
SENIOR DEPUTY PRESIDENT WILLIAMS: I think that was subsequently corrected by the appellant. They forwarded us the correct version.
PN159
MR BOURKE: Thank you, but the exchange starts at paragraph number 176 where the advocate for Civil Air is on his feet and at the bottom of that paragraph there is submissions made. It is said:
PN160
Mr O'Brien made reference to the fact that they abide by the staff policy manual. Well, it is not a discretionary issue. There is a requirement to abide by it.
PN161
THE COMMISSIONER: Is it enforceable ...(reads)... staff policy manual and then seeking to enforce it.
PN162
And we say that was a true characterisation of what Civil Air was seeking. That was a true characterisation of the issue. There was no denial of natural justice when Commissioner Roberts in the end construed the manual in a way that Civil Air did not like. Civil Air put all the submissions they wanted to make on that issue and Mr McGuane:
PN163
I understand that, Commissioner.
PN164
THE COMMISSIONER: So I put you on notice about that.
PN165
MR McGUANE: Yes, thank you.
PN166
He did not answer the question, did not explain how there was jurisdiction. It was put to him fairly and squarely and nowhere later in the arbitration was it ever dealt with.
PN167
SENIOR DEPUTY PRESIDENT WILLIAMS: By either party.
PN168
MR BOURKE: By either party but it was at - in Mr McGuane's court fairly and squarely and he hasn't come up with an answer.
PN169
SENIOR DEPUTY PRESIDENT WILLIAMS: And the Commission didn't determine it on that point? He didn't at any stage make a decision that he didn't have power to grant the claim?
PN170
MR BOURKE: No, and he didn't need to because Civil Air were putting all their eggs in one basket which was, our application doesn't even get off the ground if you don't accept our interpretation that the policy manual in relation to those provisions applied to those people going through that training program. Now when that failed the Commissioner did not need to deal ever with the question of jurisdiction. If it then came to - he accepted the interpretation and then it came to making an order for enforcement, he would then have had to have crossed the threshold, well, do I have jurisdiction to do this. Mr McGuane hasn't told me how I do.
PN171
And we would have no complaint if this case had have been argued in an arbitral sense where Civil Air is saying, look, it is fair that these people should have, in the future, this protection but the case was not argued on that way and it cannot be re-argued, it is not appropriate that it be argued within jurisdiction for the first time in front of this Full Bench. It was argued this is our construction, you enforce it.
PN172
SENIOR DEPUTY PRESIDENT WILLIAMS: But that is not - I will put it another way. It is a matter in which you characterise the claim, isn't it?
PN173
MR BOURKE: It is very - yes, a very important matter.
PN174
SENIOR DEPUTY PRESIDENT WILLIAMS: And claims of this nature have been characterised as arbitral in the past. Indeed there is a decision in the Federal Court in the Transport Workers matter that enabled a claim of this type if properly characterised as such to be an arbitral claim.
PN175
MR BOURKE: And as I put to the Commission, if it was - the issue was conducted in another way as, it is industrially fair that these people in the future have this protection that would be - what the Commission would have been invited to do is an exercise of arbitral power but - - -
PN176
SENIOR DEPUTY PRESIDENT WILLIAMS: It doesn't have to go that far, does it? As I understand that decision in the Federal Court it was a situation where there was an award, it required that casuals be paid a certain way. The union sought that they be paid in that way and the Federal Court found that that was a matter that could be the subject of an order by this Commission in the exercise of its arbitral power. I might be catching you a bit unfairly because you may not be aware of the decision but I don't know whether you want an opportunity to look at that decision.
PN177
MR BOURKE: Well, if we go over lunch or I can make some written submissions if that decision is brought to my attention.
PN178
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, it is something that we may need to address before we adjourn also.
PN179
MR BOURKE: Yes, thank you.
PN180
SENIOR DEPUTY PRESIDENT WILLIAMS: You go ahead with your argument at this stage. I am just raising with you, for example, a demand that a company pay their employees as per an award has been found to be the sort of claim that can be the subject of an order of this Commission. Now - - -
PN181
MR BOURKE: Well, your Honour, I would have to look at that.
PN182
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. That is why I raised that.
PN183
MR BOURKE: Yes. My examination of the authorities, and we have brought the Qantas decision, appears to be inconsistent with that approach.
PN184
SENIOR DEPUTY PRESIDENT WILLIAMS: But in any event we are back to the stage where I had asked you whether it had been raised; you say it was raised by the Commissioner. It doesn't appear to have been addressed at first instance in any way by either party.
PN185
MR BOURKE: Yes, and we say the ball was in Civil Air's court; it was their application and they did not attempt, subject to the cases your Honour has indicated to me, but Civil Air did not attempt to re-characterise it in any way other than their interpretation and enforcement.
PN186
SENIOR DEPUTY PRESIDENT WILLIAMS: And that if we were to come to the conclusion that the Commissioner got the interpretation wrong you say - your argument at this stage is that we don't have power to make an award in any event?
PN187
MR BOURKE: Correct, correct, because the application lacked jurisdiction at first instance.
PN188
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. Go ahead.
PN189
MR BOURKE: Now we have summarised in the written submissions in paragraph 2, we have set out the extracts to make good our submission as to how Civil Air put the matter below. They are set out in paragraphs 2(a), (b) and (c). We also say that that was correctly characterised by the submissions referred to by Commissioner Roberts below in his decision which was set out in paragraph 3. We provide in paragraph 4 the passages regarding the notice and we have provided to you in the folder the decision of Delta Sportswear, that if there was a lack of jurisdiction at first instance there is no basis on appeal for complaining that the application was dismissed.
PN190
But can I just go to the Qantas decision which is at tab 3 of the folder. At paragraph 31 this point is discussed; the difference between an exercise of judicial power and arbitral power.
PN191
SENIOR DEPUTY PRESIDENT WILLIAMS: Sorry, what page of the decision?
PN192
MR BOURKE: Sorry, paragraph 31.
PN193
SENIOR DEPUTY PRESIDENT WILLIAMS: I see, yes. I missed the paragraph numbers. Yes, go ahead. They are not placed in the usual position.
PN194
MR BOURKE:
PN195
It is convenient to deal first of all with the submission made by Qantas that the Commissioner's determination constitutes an attempt to enforce the preference provision and ...(reads)... being an incident of the judicial power.
PN196
And then at paragraph 32:
PN197
In speaking of the distinction between arbitral power and judicial power Isaacs J ...(reads)... liabilities of the parties in relation to each other.
PN198
And we say this whole dispute was about a construction, an enforcement of what one side said was an existing right, what another side said on their construction was not an existing right; not an argument of what ought to be the position. It can be seen that the nub of the distinction is the difference between on the one hand the ascertainment of existing rights and on the other hand the application of value judgments in deciding what rights ought to exist but not to enforce such rights. And we point that out because down below really, and my learned friend as he put it, there was not really an agitation of the industrial merits of this becoming an award, the agitation was did the right exist or not.
PN199
Could I then go to paragraph 40 where there is a reference from the majority in re Cramm.
PN200
MR BROMBERG: Your Honour, I might just point out for my learned friend that the case that I think your Honour had in mind is referred to at paragraph 35.
PN201
SENIOR DEPUTY PRESIDENT WILLIAMS: That is correct; that is the one I am referring to or I did refer to.
PN202
MR BOURKE: Now, yes, that is - I thank my learned friend. And one looks at paragraph 35. What the Court found, if the Commission pleases, was in the exercise of arbitral power it may be relevant as part of that exercise of industrial fairness to have to construe an award or construe a document and as part of that incidental exercise of power that is not an exercise of judicial power and we would have no complaint if that was an incidental exercise and what was fundamentally an arbitral process involving the industrial fairness of this going into the award. But the way the case was conducted fairly and squarely was this is our interpretation, you enforce it.
PN203
There was no demur that that was the approach when that was put to Civil Air by the Commissioner below. So if this was an arbitral case and debating the industrial fairness and one issue that came up was what the policy means we would not be taking this objection but it never went - it never came within that framework. Can I go to paragraph 40 and read from the majority passage in re Cramm:
PN204
In the ultimate analysis the issue for determination in the present case is whether the authority was deciding a claim that payment of wages made as a matter of legal right or a ...(reads)... resolved a dispute as to such a matter.
PN205
And it was never argued by Civil Air that we should win because this is right and fair. They were saying this is our interpretation, we want you to enforce it.
PN206
SENIOR DEPUTY PRESIDENT WILLIAMS: Wasn't it right and fair because that was their entitlement? Isn't that the way it was put?
PN207
MR BOURKE: It was never put - - -
PN208
SENIOR DEPUTY PRESIDENT WILLIAMS: Not necessarily in those words but it was said, look, this is an entitlement. We want you to confirm that entitlement. We want you to make an order that they comply.
PN209
MR BOURKE: If it had have been re-characterised in that there might be an argument but it wasn't. It went fairly and squarely as a construction. The essential arguments were confined to construction and enforcement.
PN210
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, that is not quite right because if you go to Mr McGuane's written submissions on page 34 of the Appeal Book, second last paragraph:
PN211
Civil Air submit that these affected employees are entitled to be paid in accordance with the terms and conditions of the award and the manual. The employer recognises they are permanent employees. We seek the assistance of the Commission in ensuring that these employees will be transferred with the relevant entitlements contained in the industrial instruments. As such Civil Air seek an order from the Commission under the appropriate in relation to all or any of these matters in dispute.
PN212
Now why on that basis - I am not saying it necessarily is the case - why on that basis can't it be characterised as an argument along the lines this is an entitlement provided for in the manual, we are in dispute about that, we want you to make an order that the manual be complied with.
PN213
MR BOURKE: Well, if one goes to that passage it refers to industrial instruments. At that stage the application was a rolled-up application involving enforcement of the award and the manual and it clearly reflected the fact that they already felt there were rights already in the award which - - -
PN214
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, which is exactly the case that occurred in the Transport Workers case that is referred to in the Qantas decision and then was characterised as a demand that was arbitral.
PN215
MR BOURKE: Well, with respect, we would say that re-characterisation does not really reflect the way it was conducted below. Now can I move to the construction of the manual and we submit that the Commission was correct in construing the manual the way he did and can I just go back one step to - underlying the way the characterisation, the way it was argued below is reflected in the - you look at the notice of appeal. The essential points are ones of construction rather than as a matter of industrial fairness. As a matter of industrial fairness the order should have gone. Even the grounds put forward in the notice at paragraph 2(a) significantly reduce the entitlements. There is a primary allegation, the entitlements are there:
PN216
(b) That the decision involves an interpretation of subordinate legislation.
PN217
And then grounds 3, 4 and 5 all refer to construction points. Now coming to what is effectively paragraph 11 of the submissions, the manual is not construed in a vacuum and it is not applied in a vacuum. There were issues of fact put before the Commissioner and it is submitted that the Commissioner was correct in finding that the relevant transfer provisions were directed towards substantive positions, transferred from substantive positions. That he found these persons were effectively trainees and they had not been holders of positions on what would be the normal merit selection process.
PN218
He found that they were not meeting normal staffing requirements during this process but were relocated for training and that that this particular provision was not directed to those types of circumstances and there has been an attack on the notice that there was no proper evidence to make any finding that they were effectively trainees. That is not correct. The finding was there, the evidence was there and I will take you to that in a minute. Also in terms of the construction of the manual, if one goes to the Appeal Book at page 59 - now I just start by dealing with this point. It wasn't put to the Commissioner below but there is a reference now to the definition of employee and we say the fact that there was this definition of employee does not carry the day in this case.
PN219
Each section needs to be looked at to see whether it had application. It can't be construed like it was - a manual can't be construed like a commercial document with little latitude for movement because a particular term is defined and one goes - when one goes to the relevant provision, when one goes to 1.1.1, you see under the general definitions there is a definition of home location which is a key. The whole idea of transfer, the way it operates, is that you will move from your home location to take up duties somewhere else. That appears to be the scheme of this section and it says:
PN220
...an employee's usual work and living locality -
PN221
and the evidence was that these people have never had, at this stage have never been given a home location and the finding was that they were never ever given substantial positions and that was critical in the Commissioner finding ultimately that this provision had no application and when one goes to 1.1.2, temporary transfer, there is a reference to "take up duties" when the evidence was these people are in excess of staffing requirements away from their home location. That was highlighted by the Commission as part of the approach in ultimately construing this section as having no application to this training period.
PN222
SENIOR DEPUTY PRESIDENT WILLIAMS: Are you saying these employees carried out no duties when that was occurring?
PN223
MR BOURKE: No, but we say that the construction of duties has to be given a construction consistent with given an actual position consistent with requirements as distinct from carrying out duties as part of a training process, as part of the career development program.
PN224
COMMISSIONER WHELAN: So, are you also saying that being posted somewhere for final field training does not give you a home location?
PN225
MR BOURKE: Correct, correct.
PN226
COMMISSIONER WHELAN: You are a gypsy for five or six years, are you?
PN227
MR BOURKE: Well, I don't think it gets up to five or six years.
PN228
COMMISSIONER WHELAN: Well, it was indicated that you could be transferred for periods of between three and five years.
PN229
MR BOURKE: I thought it was three and four but anyway I might stand corrected.
PN230
COMMISSIONER WHELAN: Well, I am only going on the document that was handed up. So you are saying that for a - after they leave the College, for a period of five years they have no home location?
PN231
MR BOURKE: They have no home location, they have no usual work and living locality and - - -
PN232
COMMISSIONER WHELAN: Could you tell me where that is in the award or the agreement, that these people have - - -
PN233
MR BOURKE: No, it is a matter of construction - - -
PN234
COMMISSIONER WHELAN: For the first five years that they have no location?
PN235
MR BOURKE: It is a matter of construction - sorry, I didn't mean to cut you off - - -
PN236
COMMISSIONER WHELAN: I am just asking - I understand that the award and everything requires that people be available for transfer but where is it that it says that is a condition of your employment, that for the first five years you have no location?
PN237
MR BOURKE: It is not expressly dealt with.
PN238
COMMISSIONER WHELAN: Okay.
PN239
MR BOURKE: It is a matter of construction of a general definition plus there was evidence which is referred to in my submissions at paragraph 14(b), that there is no allocation of a home location and added to that there was evidence that there was a commitment that they re-locate to these various areas for training purposes at the outset of their appointment and the reference to this need for a home location and the concept of duties is - turns up in the definitions of permanent term compulsory transfer and, for example, 1.2.2, under temporary transfer, the take-up duty, and as a finding of fact it was found that these persons are effectively trainees.
PN240
It is not - taking up a duty is not intended to pick up those types of circumstances. My learned friend said there was no evidence of finding of effectively trainees or trainees and the fact that they are also treated as employees under the award does not mean that they are not, as a matter of fact, effectively operating as a trainee and there was ample evidence of that if one goes to my references at paragraph 18 but at paragraph number 104, the training placement - do you have that or - - -
PN241
COMMISSIONER WHELAN: Wait a minute, I will have to go to - - -
PN242
SENIOR DEPUTY PRESIDENT WILLIAMS: Is that the - - -
PN243
COMMISSIONER WHELAN: I think that is one of the pages that was missing from the Appeal Book.
PN244
MR BOURKE: If one goes to our folder at tab 1.
PN245
SENIOR DEPUTY PRESIDENT WILLIAMS: 104 you said, did you?
PN246
MR BOURKE: Yes, it is page 6 of the transcript. It should be down the bottom of the page:
PN247
The training placement in these different towers is just that, a placement for training purposes. A trainee controller is additional to the staffing numbers required for ...(reads)... result of a merit selection exercise in any way.
PN248
And then if one goes to 1.4 - - -
PN249
SENIOR DEPUTY PRESIDENT WILLIAMS: Sorry, just before you do go on to that, the reference in that paragraph 4 to controller there:
PN250
...they do not take the place of a controller -
PN251
is that a reference to the fully qualified, or whatever the term is, controller?
PN252
MR BOURKE: Or I think it is at least a reference to a permanent controller who has a position.
PN253
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, can you carry out the duties in that sense without - sorry, you are either an air traffic controller who is undergoing further training for the purposes of obtaining certain certificates or qualifications or you are a fully qualified, or whatever the term is, controller, aren't you?
PN254
COMMISSIONER WHELAN: Under the terms - - -
PN255
MR BOURKE: I would have to seek instructions on that.
PN256
COMMISSIONER WHELAN: I think that - reference to the award - - -
PN257
SENIOR DEPUTY PRESIDENT WILLIAMS: I think they are the definitions in the award, aren't they? You are either in-training, a controller or a fully qualified one?
PN258
MR BOURKE: That is correct.
PN259
SENIOR DEPUTY PRESIDENT WILLIAMS: A full performance controller, yes. So the reference there is that paragraph is - they do not take the place of a controller - is that a reference to they do not take the place of a full performance, a controller who is a full performance controller?
PN260
MR BOURKE: I am instructed that is correct. And then when one goes to paragraph number 1 - sorry.
PN261
COMMISSIONER WHELAN: Sorry, can I just ask a question then. Are you saying that the only people who have permanent positions are full performance controllers?
PN262
MR BOURKE: That is correct.
PN263
COMMISSIONER WHELAN: And where is that - - -
PN264
MR BOURKE: I don't think - - -
PN265
COMMISSIONER WHELAN: Where does that appear?
PN266
MR BOURKE: I am instructed that is a matter of practice rather than anything you will find in the - - -
PN267
COMMISSIONER WHELAN: So it is not in the award or in the agreement or anywhere else?
[12.10pm]
PN268
MR BOURKE: No, no. Can I take you to paragraph number 144:
PN269
I am talking about the trainees. The trainees get the same as the first three weeks as a controller moving to that.
PN270
And then paragraph number 150:
PN271
Within this whole selection exercise for trainee controllers they have been aware from initial selection interview, prior to joining Airservices, that they are ...(reads)... he or she is unlikely to be selected under air traffic controller training.
PN272
So there was ample evidence for a finding that they were performing - - -
PN273
COMMISSIONER WHELAN: Could we go back to the paragraph number 146 for a minute. On paragraph number 146 Mr O'Brien says:
PN274
The difference is that the trainee is only there for a short period. The controller is there permanently because he has won a selection exercise to go there.
PN275
So what does that mean as far as the temporary transfer provision in the manual is concerned because the temporary transfer provision seems to specifically relate to people who are transferred for a temporary period not expected to exceed 12 months and this seems to suggest that the difference between a trainee and a controller is that the controller is there permanently?
PN276
MR BOURKE: No, the temporary transfer is when you already have allocated a home location which would arise if you were given employment in a position based on merit selection and if you then, as part of the requirements of Airservices, are required to transfer somewhere temporarily that provision would kick in.
PN277
COMMISSIONER WHELAN: So you are saying - this is what I am having difficulty, I am having difficulty with where this merit selection bit fits in. You are saying in order to have a home location you have to be merit selected but then after that you don't have to be merit selected for a transfer?
PN278
MR BOURKE: No. No, a temporary transfer, as I understand it, does not involve the merit selection process.
PN279
COMMISSIONER WHELAN: So you are saying the definition of home location is that you have been merit selected for a position? In order to have a home location you must be merit selected for a position?
PN280
MR BOURKE: Correct, and you have a substantive position.
PN281
COMMISSIONER WHELAN: And where is that? Where is that?
PN282
MR BOURKE: Well, it is what we say is the construction of these provisions. The fact that there is a reference to home location, a reference to duties and the fact that there is a finding of fact that these people are playing an effectively trainee role and an acceptance that they were not ever given a home location and the other reference to the evidence regarding the trainees is at Appeal Book 55; it is part of the written submissions at paragraph 6.2:
PN283
The program is designed to develop a trainee controller by providing a wide exposure to a number of air traffic control situations thereby enabling the individual to gain the required ...(reads)... ATC positions on merit in a selection exercise.
PN284
Now there has been some reference to the classifications in the award. They do not go - - -
PN285
SENIOR DEPUTY PRESIDENT WILLIAMS: That is a bit - whether the right term is emotive, but I mean when you look at that whole passage in paragraph 6 of that submission it keeps referring to them as trainee controllers and they aren't trainee air traffic controllers as defined by the award at this stage, are they, because they have graduated?
PN286
MR BOURKE: No, that is correct.
PN287
SENIOR DEPUTY PRESIDENT WILLIAMS: They are air traffic controllers.
PN288
MR BOURKE: That is correct.
PN289
SENIOR DEPUTY PRESIDENT WILLIAMS: Who are undergoing further training?
PN290
MR BOURKE: That is correct, and can I just deal with that point.
PN291
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes.
PN292
MR BOURKE: The manual is a free-standing document. The award does not operate as a dictionary as to how the manual applies and in fact historically the manual, as I understand it, existed prior to the '96 award and the fact that they may not be classified as trainees under the award does not mean, as a matter of fact, they were not effectively trainees in going through this career development program as was found by Commissioner Roberts. That is ultimately a question of fact. The question was not whether they are formally classified under the award as a trainee for that stage of their development.
PN293
SENIOR DEPUTY PRESIDENT WILLIAMS: No, I was just referring to the use of the term in the submission, not in the manual. It was more in the submission that Mr O'Brien was describing them as trainee controllers. Now I understand why but I was just drawing the distinction, but go ahead.
PN294
MR BOURKE: And the Commissioner used the expression at one stage in his decision as effectively trainees.
PN295
COMMISSIONER WHELAN: Sorry, I have got to go back - - -
PN296
SENIOR DEPUTY PRESIDENT WILLIAMS: They might have been effectively employees as well.
PN297
COMMISSIONER WHELAN: I have got to go back again. You have said that the only people who have permanent positions are full performance controllers, that is what you have said, and you have said that - and that is where you get this submission that the air traffic controllers who are in training have no duties within the term of the manual?
PN298
MR BOURKE: Well, it really comes back to - it is our submission that those allowances were directed to people moving from a substantive position.
PN299
COMMISSIONER WHELAN: I understand what it gets back to. I am trying to understand the differences in the language and the terminology that you are using and what seems to me to appear in the award and other instruments. That is what I am trying to understand. So you are saying that to get a home location you have to have been merit selected for a permanent position and the only people who are merit selected for permanent positions are people who are classified as full performance controllers and so when it says that a temporary transfer is when an employee takes up duties temporarily away from his or her home location you say that an air traffic controller does not take up duties within the terms of that provision?
PN300
MR BOURKE: Correct.
PN301
COMMISSIONER WHELAN: So even though an air traffic controller under the terms of the award has been assessed as competent to be granted an air traffic control licence they don't have duties within the terms of the manual?
PN302
MR BOURKE: We don't have to cast our net that wide. We are saying in relation to, and this is the only issue in front of the Commissioner, in relation to the career development program that is how it operated which is essentially a trainee phase. They are not appointed to a position to carry out what could be said to be duties but essentially a trainee function. They are in excess of requirements and that in those circumstances it was not intended that this transfer allowance provisions would kick in when there has not been a substantive position ever held.
PN303
COMMISSIONER WHELAN: So what are they doing for the 12 months that they are there?
PN304
MR BOURKE: Well, the evidence is that they were in excess of requirements. That the sufficient staff are already there operating and they were in training mode. There was not a lot of detailed evidence. Can I just underline that? Can I just underline that. It highlights the fact that - in some detailed evidence of what they did and so forth you may think may have been relevant at the end of the day on some type of industrial fairness question but the case was driven below on just whether the manual, this provision of the manual applied or did not apply.
PN305
Now if I can go to the decision at paragraph 26. Now my learned friend said really this finding was a denial of natural justice, so, you know, it came out of the blue, and that is not correct. It went to the heart of the issues where the Commissioner below made a finding as to what the relevant clause in that manual, how it applied and found that it did not apply as agitated by Civil Air and that Airservices was correct, it was not doing anything wrong and said:
PN306
After careful examination of the submissions of the parties and the terms of the award, agreement, and what is in reference to the manual, I find that the persons being ...(reads)... who hold all the required ratings and experience -
PN307
This is not a reference to the whole manual. There is no argument - and that the general conditions were tendered today - there is no argument that the manual applies but in this particular case it did not have application to giving allowances to people involved in this training program and it is an artificial reading to suggest this was a suggestion that the whole manual did not apply:
PN308
...to hold all required ratings and experience to fully operational air traffic controllers, not to persons who are effectively trainees.
PN309
And that went to essentially, and there was evidence led, that they are in fact operating a trainee function in essentially a trainee role and that - Civil Air was fairly and squarely on notice that that was part of the issues in dispute and it is really an artificial and very fine-toothed reading of that approach to say somehow there has been a denial of natural justice. What the Commissioner has done is to rule on the essential issue which had been debated and part of the examples where Airservices raised this issue were at paragraph 7.1 of its submissions, and if I could give you the - if one goes to Appeal Book 53 - actually 7.7, sorry, at Appeal Book 55, and this is clearly going to the construction:
PN310
At this stage of their career the trainee controllers have not won a position that can be described as a home location. An employee who has been selected on merit for a position in a location is acknowledged and that location being the employee's usual work and living locality.
PN311
That was directly going to whether that part of the manual applied or not and at the - if one goes to the oral submissions on 30 May at paragraph number 104 and, sorry, that is a passage I have taken you to, clearly directed to the construction and a matter taken into account and 106 also deals with that issue. Now my learned friend went to the general conditions, exhibit FB3, another document not put before the Commissioner, where there was some reference to transfer allowances but that again is a separate document. It is no basis for saying in a construction of the manual itself that shows that they get all those entitlements under that section and the fact that they are given some assistance to go to College on page 2 and also the fact, in the same way it is not determinative, that on the last page there is a reference to the tower trainee.
PN312
These are separate documents. Ultimately it is going to be a matter of, in terms of application of the manual, a mixed question of fact and law. Now if the Commission finds there was jurisdiction below, that there has been error below, we put the following matters and this goes actually to leave to appeal as well and this is at paragraph 23 of our submissions. We have provided it at tab 2 of our folder. There was a no extra claims commitment in the certified agreement and we have provided at tab 5 the Civil Air and Airservices decision, Deputy President Duncan. That that is a substantial matter to be taken into account in any exercise of discretion whether to grant an award during the life of the agreement and we say it should also be a relevant matter as to grant of leave.
PN313
To the extent that if any of the matters in terms of the fresh documents put to the Full Bench are matters which are relied upon to find error those are matters that should - it is up to an applicant to put its best case below and if that is what shifts the Full Bench's view into a decision that there was error below when those matters were not drawn to the Commission's attention that is a matter that should go strongly as a basis for the refusal of leave.
PN314
DEPUTY PRESIDENT BLAIN: Mr Bourke, are you suggesting that this hearing is in any way a re-hearing?
PN315
MR BOURKE: If there is error found, if there was jurisdiction below and error found you can deal with the matter afresh but my point was if those additional documents my learned friend has tendered before the Full Bench are relied upon to establish error in the Full Bench's own mind then that is a basis for refusing leave to appeal because they should have put their best foot forward below and that we say strong policy grounds for the Full Bench discouraging a party to fix up their case in front of a Full Bench. But we say at the end of the day those materials did not in fact take the matter any further.
PN316
But the other matter we point to is there has been no dealing below or in fact before the Full Bench as to why there should be a variation of the award in terms of meeting the safety net adjustment principles. We have provided that statement of principles at tab 6 of the folder. It is right up the back.
PN317
COMMISSIONER WHELAN: Are we talking about principle 5?
PN318
MR BOURKE: Well, also directed mainly to principle 1 - that awards are to act as a safety net for fair minimum wages and conditions, are simplified to suit and suited to the efficient performance of work and to encourage the making of agreements between employers and employees. Now there is no evidence led as to why this is a minimum level. On the face of it the manual, which sets out terms and conditions of employment, operates in a paid rates manner and that for the Commission to just effectively be asked to cut and paste the manual into the award by reference, without any evidence that this is a minimum standard as distinct from a paid rates standard, in our submission is inappropriate and that is the type of evidence that should have been led below and reflected the fact that really there wasn't an arbitral process happening below.
PN319
COMMISSIONER WHELAN: Am I correct in my understanding, Mr Bourke, that the award makes provision for the allowances and the manual quantifies it? Is that correct?
PN320
MR BOURKE: Well, the award does - - -
PN321
COMMISSIONER WHELAN: Because the award certainly refers to transfer allowances and things like that but it doesn't actually quantify them.
PN322
MR BOURKE: It doesn't spell out - the award at 24 - 24.2 - - -
PN323
COMMISSIONER WHELAN: It talks about reasonable and actual expenses.
PN324
MR BOURKE: It says, "reasonable and actual expenses".
PN325
COMMISSIONER WHELAN: Yes.
PN326
MR BOURKE: And the manual is essentially under the terms and conditions of employment gives specificity.
PN327
COMMISSIONER WHELAN: Well, that actually says what the employer will pay.
PN328
MR BOURKE: With great specificity.
PN329
COMMISSIONER WHELAN: Yes.
PN330
MR BOURKE: That is not to say that the manual acts as to how the award will apply. The manual - - -
PN331
COMMISSIONER WHELAN: No, the manual acts in conjunction with the award though to the extent that the award specifies that there is an entitlement and the manual specifies what that - in lieu of the entitlement to be reimbursed for reasonable and actual expenses the manual specifies what it is the employer will pay.
PN332
MR BOURKE: Well, that is undoubtedly correct but at the end of the day whatever is the higher has to be met. It doesn't go without saying - if, for example, the manual made payments which were more than reasonable the employer would have to meet that obligation if it applied to a particular person and there is no evidence that what is in the manual is reasonable or is appropriate for a minimum and contrary to that if what was in the manual, which can be varied by determination, was unreasonable the employer would have to pay a higher amount to comply with the award. But that is just being - - -
PN333
SENIOR DEPUTY PRESIDENT WILLIAMS: Unless what was thought to be reasonable became actual.
PN334
MR BOURKE: Sorry, your Honour.
PN335
SENIOR DEPUTY PRESIDENT WILLIAMS: Unless what was thought to be reasonable became actual or the other way around.
PN336
MR BOURKE: Well, that may - that could occur but there is just no evidence, let alone reasonable, and whether the manual represents what is reasonable, there is no evidence, and, two, there is no evidence that what is reasonable is an appropriate minimum standard as distinct from is it really a paid rates standard and I don't really want to go chapter and verse through the provisions in the manual. If one goes to 59, Appeal Book 59, they set up a very detailed regime for payment - at, sorry, 61, with reference back to other sections. It just can't be said in a vacuum that they are appropriate minimum standards that should go into this award.
PN337
Those are the type of issues that would have been agitated, if this really was about an arbitral decision that was being sought. But further to that - - -
PN338
SENIOR DEPUTY PRESIDENT WILLIAMS: You are not suggesting that your client saw it any other way, are you, at the time it was before the Commissioner? They didn't raise it, the Commissioner mentioned it, and they then didn't address it. They didn't come in behind it and say there is no jurisdiction.
PN339
MR BOURKE: I am not suggesting that our client - - -
PN340
SENIOR DEPUTY PRESIDENT WILLIAMS: Your client saw this as a straight out industrial dispute which the Commission had been asked to determine, didn't it?
PN341
MR BOURKE: There is no doubt about that.
PN342
SENIOR DEPUTY PRESIDENT WILLIAMS: Whether they were right or wrong is another matter but - - -
PN343
MR BOURKE: That is correct.
PN344
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes.
PN345
MR BOURKE: There is no doubt about that.
PN346
COMMISSIONER WHELAN: And can I just ask you this further question, do you say that because of that definition of home location the transfer allowances provision in the award doesn't apply to these people either?
PN347
MR BOURKE: Correct; correct.
PN348
COMMISSIONER WHELAN: Thank you.
PN349
MR BOURKE: Can I go to - just back briefly to the statement of principles. There is a reference to the need to be suited to the performance of work at the enterprise and we led evidence through submission - this is at paragraph 26 of our submissions - that if these entitlements were plugged in to this type of training program it would make the whole thing unrealistic and unsustainable and that submission is quoted in the decision and that the whole thing would fall to the ground and the evidence seemed to be that no one - - -
PN350
COMMISSIONER WHELAN: What was the evidence? That was the submission but what was the actual evidence?
PN351
MR BOURKE: No, well, the case wasn't run by way of evidence through submission - - -
PN352
COMMISSIONER WHELAN: Yes, I know that but what was the basis upon which it was unsustainable, that is what I am - - -
PN353
MR BOURKE: No, my learned friend was right, it was not elaborated on.
PN354
COMMISSIONER WHELAN: It wasn't elaborated on.
PN355
MR BOURKE: But he was not right in saying that it was rejected by the Commission. There is no suggestion it was rejected but in fact the overall tone of the Commissioner's approach was that submissions from Airservices on issues of fact were preferred to Civil Air but there were no submissions, in what were assertions made from the bar table on both sides, there was no submission made by Civil Air that that wasn't correct. So there was no finding on it rather than it was rejected but the assertion was unchallenged. It is a material matter that you would need to assess, one, to make the decision in a proper arbitral context or to make the decision afresh and that underlines that this is really - it goes, one, to the question of the appropriateness of leave to appeal when these issues were not properly agitated and that, would be a critical submission, was not challenged in any way.
PN356
No submission was made down below or they haven't led any evidence on this. So you have an unchallenged submission which goes to the heart of, it will completely torpedo the program, and clearly Civil Air were saying, look, we really haven't got any problem with the program in principle. So they had a submission which went to the heart of what they were seeking in that it said, look, if you get up that is the end of the program and they have said nothing about that submission. Just excuse me.
[12.40pm]
PN357
I haven't checked this myself but I have a note regarding the Mayne Nickless decision where issues regarding casual entitlements was dealt with and whether it was judicial and arbitral and my note seems to indicate, that has been provided to me, that the issues in terms of their construction of the awards was more relevant to relativities concerning other employers, but I will stand corrected. I haven't viewed the decision myself. Sorry, excuse me. I think the issue that arose was potential anomalies between awards entitlements.
PN358
If I can just say something else finally, so we say those matters in terms of how it was argued below go to the very heart of leave because even if my submission is right that it can be characterised or re-characterised as an arbitral task that the Commissioner was given, the Commissioner, by the applicant, did not deal with the sufficient industrial fairness issues that needed to be dealt with so that that exercise of arbitral discretion could be effectively exercised. Nothing further has been canvassed here and that is a proper ground for, even if there was error on construction, there should not be leave.
PN359
The applicant did not put forward a proper case in terms of any proper grounds for industrial fairness other than realistically this is in the manual and already applies. That is as high as it got. Completely ignored the safety net principles and didn't grapple with our assertion that that will be the end of the program and we don't know what the Commissioner would have made on that submission but it was unchallenged and it is unsatisfactory that leave be granted and that particularly that a fresh decision be exercised by this Full Bench in circumstances where we are - there is just a vacuum on those issues in terms of putting this manual into the award by reference, let alone we object to the idea of that it be done also retrospective. Unless there is any other submissions those are my submissions.
PN360
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, thank you. Mr Bromberg, how long do you think you will be? I am not trying to confine you.
PN361
MR BROMBERG: I think I could - - -
PN362
SENIOR DEPUTY PRESIDENT WILLIAMS: It is a matter of convenience for one of the members, that is all.
PN363
MR BROMBERG: Yes. I think I could be 15 minutes, but I might be 20. But your Honour knows how bad I am at making estimates too.
PN364
SENIOR DEPUTY PRESIDENT WILLIAMS: I won't make those rude comments I make when I sit as a single member, Mr Bromberg.
PN365
MR BROMBERG: Could I - - -
PN366
SENIOR DEPUTY PRESIDENT WILLIAMS: I just wanted to indicate that one of our members needs to get away by 1.30 at the latest.
PN367
MR BROMBERG: I will certainly be finished well before then. If the Commission pleases, can I start with the so-called jurisdictional point and in that respect emphasise that we are at somewhat of a disadvantage. We received a notice of contention, I think it might have been faxed 7 o'clock Friday night but my instructor, 7.30, but my instructor is not in the habit necessarily of being there at that time every Friday although probably often. In any event we didn't see this until yesterday. If you go to paragraph (a) of the notice of contention you will see that it says this:
PN368
The orders sought are in the nature of a declaration as to the construction of an award and do not involve the making of an award. As such the Federal Court of Australia has sole jurisdiction for determining such an issue.
PN369
Now I think that is the notice of contention upon which my learned friend put his argument this morning but you will see that it raises very different issues to the issue that my friend did in fact put and we haven't come armed with the authorities on the question of arbitral or judicial power because, with respect, that contention appeared nonsensical to me and I didn't know what he meant, in the circumstances of the facts of this case. In any event I will try and do the best I can and it may be necessary that we be given some leave to put in a further written submission perhaps by Thursday.
PN370
SENIOR DEPUTY PRESIDENT WILLIAMS: We will deal with that when we get to the end.
PN371
MR BROMBERG: Yes. Now as I understand my learned friend's case he says that what the Commission was asked to do was exercise a judicial power, not arbitral power. The classic distinction between the exercise of arbitral power and judicial power is that in the exercise of judicial power a Court determines existing legal rights. The exercise of arbitral power involves the creation of new rights. The line between the two is not an easy one and it is, as the Commission will know, involves the High Court and other Courts in testing determinations. But in the context of this case a number of things are clear.
PN372
First of all there were no existing entitlements that the union pointed to which had accrued and which it was sought that there be an order in respect of. There was no suggestion that because particular employees had been transferred and had incurred particular costs that the Commission should make an order that those costs be met by the employer. That would have involved the exercise of judicial power because that would have involved an argument about existing entitlements. What the Commission was asked to do here was to exercise arbitral power and to exercise it by creating rights, not enforcing existing rights.
PN373
It was asked to do it in circumstances where essentially what was put below and what is put here is that it is unfair for an employer to not meet the promise that the employer has made to pay expenses and other costs associated with transfer. What the manual does is contain a promise to pay. My friend says it might be a contractual entitlement. Well, it may well, but it is a document of the Board which says the employer will pay in particular circumstances. What the union was concerned with and what was the dispute before the Commission was a dispute about the unfairness of that obligation not being honoured.
PN374
In that circumstance it wasn't necessary to go to evidence about the quantum of any entitlement or the appropriateness of any entitlement. That had been determined by the employer. So you don't find evidence about the existence of similar entitlements in other parts of the industry or other industries. The Commission wasn't being asked to determine the merits of whether or not there ought to be an entitlement. What the Commission was being asked to do was address the unfairness of an employer not meeting the obligation that it had imposed upon itself to make particular payments. That, in our respectful submission, involves the exercise of arbitral power.
PN375
I don't unfortunately have the Transport Workers Union case with me but I think your Honour's recollection of it is correct, with respect. What the Court did there was characterise the nature of the dispute before the Commission. The Court didn't, to my recollection, rely upon whether the word "fair" had been used or not. It simply sought to characterise the substance of what the Commission was dealing with and it determined that in essence what the Commission was dealing with was the fairness or not of the conference of entitlements required by a range of instruments and this case, in our respectful submission, is no different.
PN376
My learned friend kept talking about the union seeking an enforcement order. Well, an enforcement order is where a Court says you shall pay X dollars. That is an enforcement order in circumstances where a claim is paid for non-payment and we don't seek that. We simply seek confirmation of an existing entitlement in circumstances where it is unfair for that entitlement not to be met and we seek that the right to the entitlement be confirmed in an order of the Commission rather than the entitlement itself be enforced by an order of the Commission.
PN377
Now then can I come to the construction argument. Can I say at the outset that my friend put on his feet a proposition that only - - -
PN378
COMMISSIONER WHELAN: Full performance.
PN379
MR BROMBERG: Full performance is the classification I was thinking, trying to get, thank you, Commissioner. He said that only full performance air traffic controllers hold substantive positions. We disagree with that. There is no evidence before you about that I know but in case it is suggested that my learned friend putting it from the bar table should be accepted can I just say, on instructions, that that proposition is not agreed with. Can I also say that there was no finding made below that air traffic controllers have no home location and there was no finding made below that they don't perform duties.
PN380
My learned friend's argument depends upon the existence of those findings in order to support the Commissioner's construction and the Commissioner never came to those findings because he really didn't address the matter in the way my friend wants to address it here, with respect. His argument essentially I think was well summarised in the exchange between Commissioner Whelan and my learned friend. His argument is that home location must be led to mean the location at which a person who holds a position having been selected on merit is placed.
PN381
So you have got to have a permanent merit selected position and it is only then that you get a home location and as the Commissioner observed that probably means that you are a gypsy for about four or five years. In our respectful submission there is no cause to take a definition which is clear and simple in its language and convert it to something that it is not. Home location is defined. It says:
PN382
...an employee's usual work and living locality.
PN383
Now in our respectful submission home location is where you usually work and live. Mr Carter - the evidence in relation to Mr Carter was that he had been in Brisbane for over 12 months but my friend would say he didn't have a usual work or living locality. In our respectful submission the proposition is without merit and ought to be rejected. What my learned friend is really saying is that of the four classifications of air traffic controllers, that is trainee controller, air traffic controller, full performance controller and team leader, two of those classifications probably constituting the majority of the workforce do not have a home location and in our respectful submission that submission must be wrong.
PN384
My friend then said that there was no denial of natural justice. With respect he made a number of criticisms of the way in which the case was run below and the way in which in particular it was run by Mr McGuane but with respect one thing that Mr McGuane can't be criticised for is for not appreciating that Airservices was putting the argument that held favour with the Commissioner ultimately because it is just not there and my learned friend hasn't been able to point to it anywhere, in the written submissions or in the transcript. All he can do is point to bits and pieces which are suggestive of the argument that he says was there but it just wasn't there.
PN385
To have expected the union to have appreciated an argument that was never put in our respectful submission is a little onerous. Now there is then a submission put about the no extra claim commitment. There isn't an extra claim here. The employees aren't asking for any more than what the employer has said that they should have. It is not an extra claim at all. So far as the safety net principles are concerned could I turn to the principles. Firstly, an award may be varied when it falls within principle 2 including under principle (c), to adjust allowances and service increments in accordance with principle 5.
PN386
It seems that at best if an order was made here all it would do would be to give content to an existing award obligation to meet expenses. If it does involve any new allowances to compensate for expenses then it would fit within principle 5 and in particular paragraph (f) which provides for new allowances to compensate for the reimbursement of expenses incurred - I am sorry, I will start again:
PN387
New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses.
PN388
And my friend, I think, says, well, there was no evidence of it being appropriate. Well, it was what the employer had said was appropriate and the union thought it appropriate and nobody was suggesting that it was inappropriate. The Commission, in our respectful submission, would be entitled, on the basis of there being no contention as to the appropriateness of the terms of the manual as opposed to its application, the Commission was well able to fit an order within that exception. In any event if the order does not come with the exceptions it is a matter that the Full Bench can deal with and it is perhaps added reason why the Full Bench should grapple with the subject matter of the proceeding and deal with it to finality by making the order sought.
PN389
Lastly, it was suggested that there would be a prohibitive cost. Can I say this about that, that this case was not about the cost. That is not the way that it was argued below or being put here. It is about the fairness of the employer meeting a commitment - I am sorry, of an employer refusing to meet a commitment. It is not about quantum. All the order that is sought seeks to do is confirm that so long as the manual provides for particular entitlements they be observed and in paragraph 2 it makes it clear that whether those entitlements should subsist or not is not a matter that the order seeks to preclude.
PN390
So that there is no issue about cost here. The issue is has the employer committed to make particular payments. If so, is it fair and just in the circumstances that the Commission, by its order, should confirm that those commitments ought to be met whilst those commitments subsist and in our respectful submission that is the appropriate order that the Commission should make. We would, in addition, say that if the Commission is against us and does not determine to deal with it as a Full Bench the Commission will then have the option of either referring the matter to a member of the Full Bench for sending the matter back. Can we indicate, with respect, that our preference would be - - -
PN391
SENIOR DEPUTY PRESIDENT WILLIAMS: Or referring it to any member of the Commission.
PN392
MR BROMBERG: Yes, referring to any member - - -
PN393
SENIOR DEPUTY PRESIDENT WILLIAMS: We are not restricted just to the members of the Full Bench.
PN394
MR BROMBERG: Yes. Can I indicate, with respect, that it would not be appropriate that the matter be referred back to Commissioner Roberts. The Commissioner has made a number of findings, many of which we contest, and if the Commission was so minded it would be more appropriate that the matter be given afresh to either a member of this Full Bench or another Commissioner. If the Commission pleases.
PN395
SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Bromberg, do you still desire to put in some written submissions on the jurisdiction question?
PN396
MR BROMBERG: Can I have leave to do so by the end of Thursday if I should think it appropriate, your Honour, unless the Commission was minded - - -
PN397
SENIOR DEPUTY PRESIDENT WILLIAMS: The other question I was going to ask Mr Bourke was whether you wished to put anything on the case to which we referred, the Transport Workers case.
PN398
MR BOURKE: I think I have said what I wish to say on that, your Honour.
PN399
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, do you have any objection to Mr Bromberg being given leave to do that?
PN400
MR BOURKE: No objection.
PN401
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, leave is given to you to do that. If you deliver that to us by - - -
PN402
MR BOURKE: Sorry, your Honour, my instructor wants submissions put in on the Transport case.
PN403
COMMISSIONER WHELAN: She is drafting them already, is she?
PN404
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, would you be able to do that by close of business on Thursday?
PN405
MR BOURKE: Yes; yes, your Honour.
PN406
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, leave is - - -
PN407
MR BOURKE: I hope so, your Honour, yes.
PN408
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, leave is granted to both of you to do that. I think you can be assured that the members of the Bench are not going to be writing the decision on Good Friday. The leave stands in its own terms. We reserve our decision in the matter on that basis and the matter is adjourned. The Commission itself is adjourned.
ADJOURNED INDEFINITELY [1.07pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #FB1 FOLDER OF DOCUMENTS FROM CIVIL AIR OPERATIONS OFFICERS ASSOCIATION OF AUSTRALIA PN26
EXHIBIT #FB2 EXTRACT FROM AIRSERVICES ACT 1995 PN58
EXHIBIT #FB3 DOCUMENT HEADED GENERAL CONDITIONS OF EMPLOYMENT FOR ATC TRAINEES PN93
EXHIBIT #FB4 DRAFT ORDER PN116
EXHIBIT #FB5 FOLDER OF MATERIALS FROM AIRSERVICES AUSTRALIA PN128
EXHIBIT #FB6 WRITTEN SUBMISSIONS FROM AIRSERVICES AUSTRALIA PN128
EXHIBIT #FB7 CLAUSE 37 OF THE AWARD PN135
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