C2001/1820, Transcript of Proceedings [2003] AIRCTrans 2299 (13 June 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/1820

COMMONWEALTH BANK OF AUSTRALIA
EMPLOYEES AWARD 1999

Application under section 113 of the Act
by the Commonwealth Bank of Australia to
vary the above award re insertion of new
clause 15.6 into the award

SYDNEY

10.06 AM, MONDAY, 26 MAY 2003

Continued from 3.9.01

PN504

THE SENIOR DEPUTY PRESIDENT: Mr Douglas?

PN505

MR DOUGLAS: Thank you, your Honour. Your Honour, we have provided my learned friend with an outline of the submissions that we intend to put and a copy of an affidavit of Darren Keith Perry which really recites the history of this matter, both here and with respect to the Adams Court proceedings and exhibits, transcript and decisions. There is a bundle of exhibits which are those transcripts and decisions. I will provide those to your Honour.

PN506

MR GINTERS: Can I indicate, your Honour, while your Honour is receiving those, I received this material at about five minutes to 10 this morning. In those circumstances, it will be my application - I might as well make it now - that these proceedings be adjourned so I can have an opportunity to consider these matters, consider them with my solicitor and senior counsel that is briefed in the Federal Court proceedings, and also with my client.

PN507

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Douglas?

PN508

MR DOUGLAS: I oppose that, your Honour. If your Honour has a look at the affidavit, very quickly, your Honour, you will see that it does, as I have already indicated, deal with the history of 1820 here and the Adams proceedings in the Court. Paragraph 4, the Federal Court application, is exhibited. Paragraph 5, the application which is 1820 is referred to and the variation is set out. My friend is junior counsel in the Court proceedings. He has been involved in the other proceedings involving CBA and Colonial. He is as familiar with the history of this matter, both here and in the Court, as I am; in fact, he is more familiar, I would suggest, with the matter in the Court than I am because I am not involved in the Court proceedings.

PN509

Paragraph 6 refers to a notice of motion in the Court. Paragraph 7 deals with the reference application and exhibits the transcript of those proceedings; that is, in relation to 1820. Paragraph 8 exhibits the transcript of proceedings before your Honour and sets down in paragraphs 8, 9 and 10 passages from the transcript that we rely on, and so on, your Honour. You will see I don't go through the rest of it, but it deals with the history in that way. For example, on pages 6 and 7 of the affidavit it sets out in details extracts from the Federal Court transcript of proceedings before Moore J in November of last year.

PN510

Now, my learned friend, who was there when those things were said by his leader, he is familiar with that, your Honour, and he certainly does not, in my submission, need an adjournment beyond, say, a half an hour this morning to consider what is in this material. Nothing is new, your Honour, from an historical point of view, but there is a new situation which has arisen because of the way in which the FSU has adopted a stance in the Federal Court back in November which fundamentally unstitches what it put to your Honour to convince your Honour some two years ago to adjourn 1820. Now, we desire to deal with those matters today. Mr Perry is in the courtroom and he is available for cross-examination.

PN511

THE SENIOR DEPUTY PRESIDENT: Yes. I think I am going to adjourn. I will adjourn till 11 o'clock and proceed with the tender of the document in the first instance. I adjourn until 11 o'clock.

SHORT ADJOURNMENT [10.11am]

RESUMED [11.08am]

PN512

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas?

PN513

MR DOUGLAS: Thank you, your Honour. Could I begin by asking your Honour to mark the outline of submissions and the affidavit of Darren Perry?

PN514

THE SENIOR DEPUTY PRESIDENT: I will mark the outline of submissions of the Commonwealth Bank of Australia as exhibit CBA6.

EXHIBIT #CBA6 OUTLINE OF SUBMISSIONS OF THE COMMONWEALTH BANK OF AUSTRALIA

PN515

THE SENIOR DEPUTY PRESIDENT: The bundle of exhibits and the affidavit of Darren keith Perry I will mark as exhibit CBA7.

EXHIBIT #CBA7 AFFIDAVIT OF DARREN KEITH PERRY

PN516

MR DOUGLAS: Could I also provide to your Honour and to my learned friend a copy of each of the decisions we refer to in the outline of submissions. That doesn't need to be marked, your Honour.

PN517

THE SENIOR DEPUTY PRESIDENT: No.

PN518

MR DOUGLAS: Could I begin by saying that the CBA yet again seeks to have matter 1820 of 2001 brought on for arbitral hearing and determination. Your Honour, it is a coincidence of some note that the Commission is sitting today in single-member form to determine whether 1820 is to be dealt with as a matter of merit against the wishes of the FSU when, at the very same time, the Commission is also sitting in test-case mode in Melbourne to determine whether it should ratify the position agreed to by the whole of the trade union movement last year; that agreement being, in part, that employees who move from employer A to employer B on terms and conditions of employment no less favourable and with past service preserved, just like the employees who move from the CBA to EDS in 1997, are not - I repeat, not - entitled to be entitled to severance pay.

PN519

Your Honour, in the other proceedings that involved the CBA and the Colonial Bank, I did tender that agreement that is currently before the Full Bench for ratification today in Melbourne; that Full Bench consisting of his Honour the President, Vice President Ross, Polites SDP and, of course, your Honour, decided the EDS 149 case which is referred to in the grounds of 1820, and Commissioner Smith and Deegan. Your Honour, could I, in this proceeding, tender a copy of that agreement?

PN520

MR GINTERS: I object to the tender. It is just not relevant to an application to unadjourn proceedings.

PN521

THE SENIOR DEPUTY PRESIDENT: Yes, that is true.

PN522

MR GINTERS: My learned friend has attempted to do this on numerous other occasions which has taken enormous amounts of the Commission's time, tendering, making reference to, repeating his submissions and then repeating them again as to matters that are simply not relevant to the Commission.

PN523

MR DOUGLAS: Your Honour, it is relevant in my submission with respect to the issue that is before the Commission today, that the FSU is a party to an agreement that is as I say before the Full Bench for ratification at this time and while at the same time it is taking a stand in these proceedings which is quite contrary to what it has agreed to in that Full Bench proceeding. Your Honour, I submit that it is relevant and I do seek to tender the document.

PN524

THE SENIOR DEPUTY PRESIDENT: Yes. I accept the tender.

PN525

MR DOUGLAS: Thank you, your Honour.

PN526

THE SENIOR DEPUTY PRESIDENT: The document entitled Appendix B termination and redundancy test case major parties positions at the conclusion of conciliation 9 December 2002 is marked exhibit CBA8.

EXHIBIT #CBA8 DOCUMENT ENTITLED APPENDIX B TERMINATION AND REDUNDANCY TEST CASE MAJOR PARTIES POSITIONS AT THE CONCLUSION OF CONCILIATION 09/12/2002

PN527

MR DOUGLAS: Thank you, your Honour. Your Honour, the copy - the document that has been copied unfortunately has some hand-writing on it which is mine and I ask the Commission to ignore it although it is quite neutral in terms of what the Commission is being asked to decide today. The relevant parts of this agreement, your Honour, can be seen at page 12 where the definition of business, definitions of business and transmission are set out. Page 27 where adequate alternative employment is dealt with, and I simply refer to the second paragraph of that provision which reads:

PN528

This provision does not apply to circumstances involving transmission of business as set out in 445.

PN529

In fact it should read 446. And over the page on pages 28 and 29 is the, what will become one would presume, the new transmission of business provision. It is relevant to read it to your Honour:

PN530

Paragraph (a): The provisions of clause 44 are not applicable where a business is - - -

PN531

MR GINTERS: Well, this has been read to your Honour on a number of occasions and your Honour is quite capable of reading it yourself. With respect to my learned friend, we are here with an application to un-adjourn a matter.

PN532

THE SENIOR DEPUTY PRESIDENT: It is true, I can read it myself, Mr Douglas.

PN533

MR DOUGLAS: Yes, your Honour, I accept that. We submit, your Honour, that there is no sound reason why 1820 should remain in an adjourned state, there is no sound reason why it should not be listed now for hearing, there is no sound reason why it should not now be heard and decided by the Commission pursuant to Part 6 of the Act. Could I go to the affidavit, your Honour, CBA7, and I indicate to your Honour that my learned friend has informed me that he doesn't wish to cross-examine Mr Perry. I take your Honour to the affidavit.

PN534

1820 of course was filed over two years ago back in early April 2001 and by reason of your Honour's two decisions, the first given in June of that year and the second in April the following year, that period of time has passed without this matter being the subject of any merit hearing. We submit that it is beyond argument that the Commission, and therefore all of its members, are obliged by the Act to hear and determine section 113(2) applications that have come before it. 1820 is such an application. In fact dispute findings, disputes and variations under section 113(2) are both to be treated alike in terms of hearing and determination.

PN535

We submit the Commission can only be relieved from the obligation to hear and determine 1820 by it making, properly making an order under section 111(1)(g) particularly paragraph 3. In our submission no adjournment decision can ever relieve the Commission from the obligation to hear and determine a dispute or an application properly brought to it under section 113(2). Paragraph 3 of the affidavit Mr Perry says:

PN536

The FSU and Joseph Adams commenced proceedings in the Court October 2000.

PN537

They allege breaches of two instruments, the 1990 CBA Award and the 1990 Redundancy Redeployment Agreement. The alleged breaches relate to employees who resigned from the bank back in October 1997 to join EDS, and particularly EDS Services. A copy of the Federal Court application is exhibited as DP1, paragraph 5, on 3 April the bank filed its application which is now 1820 and the provision being sought is set out, and I don't need to read that, your Honour, your Honour is familiar with that. The application is exhibited as DP2. Paragraph 6:

PN538

Subsequent to the bank commencing these proceedings in the Commission it applied to the Court for a stay of the Adams proceedings.

PN539

And that application was adjourned generally by Wilcox J and the proceedings were listed in the week commencing 9 July 2001. Remember 9 July listing figured significantly in the submissions put to your Honour by Mr Haylen. Paragraph 7:

PN540

An application by the bank to have the 1820 referred to a Full Bench was made in late April 2001 and declined by his Honour the President.

PN541

The matter then came back before your Honour on 7 June and an application was made by the union for an order adjourning these proceedings to a date to be fixed, and a copy of the transcript of those proceedings is exhibited as DP3. Your Honour received further submissions on 18 June, a copy of the transcript, DP4. At that proceeding the FSU senior counsel, the bank's senior counsel being myself made this submission, that is at paragraph 414 of the transcript. So that to simply adjourn in circumstances where this application has been filed because of the implications arising from the Court proceedings, to simply adjourn to allow the Court to make a decision in circumstances where we may then be totally defeated in relation to our section 113(2) application is a valid reason why your Honour should not accept the argument that this is a simple little adjournment for a short period of time, and that is being short by the FSU. It is a matter of significance, your Honour.

PN542

Then in paragraph 9 senior counsel for the FSU at paragraph 416 responded to a question put by your Honour in this way, he said:

PN543

We are not convinced that the application would necessarily have that effect ...(reads)... these proceedings as we say would be unnecessary.

PN544

Now, it is clear from your Honour's decision which is exhibited as DP5 - and I am referring to paragraph 10 of the affidavit - it appears from your Honour's decision that your Honour was moved by what Mr Haylen put to you at paragraph 416 of the transcript of that hearing on 18 June. Your Honour said at paragraph 19 of the decision that the declaration and order that had the combined effect of requiring payment of the severance pay sought by the FSU raises an issue whether the Commission could take action if otherwise convinced that would give the CBA relief. This consideration, a significant one, is met by Mr Haylen's undertaking that the FSU and, presumably, Mr Adams would not seek orders but merely declarations from the Federal Court.

PN545

Paragraph 11 - on 9 July that year the Adams proceedings came on before Wilcox J and he transferred them to Moore J. The bank sought leave to appeal the decision of your Honour to adjourn these proceedings. A copy of the transcript of that appeal proceedings is exhibited as DP6. On 7 September the Full Bench - which, of course, dismissed the appeal - published its reasons - and they are exhibited as DP7. Paragraph 14 - on 7 March 2002 the bank made an application to your Honour to have this matter and other proceedings listed for hearing. The transcript of the proceedings before your Honour on that day is exhibited as DP8. At this time, Mr Perry says, the Adams were adjourned before Moore J pending the outcome of an appeal in the Macy proceedings.

PN546

Paragraph 15 - on 4 April 2002 your Honour gave a decision and you confirmed the June 2001 position decision to again adjourn the proceedings to a date to be fixed. That decision is exhibited and marked as DP9. Paragraph 16 - by September 2002, after a successful appeal by the bank in the Macy proceedings, the question of the further progress of the Adams proceedings was being considered by Moore J. A directions hearing was held before his Honour on 20 September and a copy of the transcript is exhibited as DP10. Moore J listed the Adams proceedings for further directions on 27 September 2002. A transcript of those proceedings is exhibited as DP11.

PN547

Now this, your Honour, is when we get to what, I submit, are very significant passages in the transcript before his Honour on that occasion and, subsequently, in November of 2002. At page 10 of 27 September transcript his Honour said - and, of course, his Honour at one time a vice president, I think, of this Commission, so he has some familiarity with the way in which this Commission operates. It can be seen from page 132 of the bundle of exhibits, your Honour, that the FSU was arguing before his Honour on that day that the whole of the Adams proceedings should be set down for hearing. In any event, his Honour at page 10 of the transcript said this:

PN548

I mean the Commission has the capacity in all senses of the word to construe the award for the purposes of determining whether it should be varied.

PN549

Of course, that is so, your Honour, and I remind your Honour that in the other proceedings we invited the Commission, as we do in relation to 1820, to proceed on the presumption that the union position as to the wording of the relevant clause is correct. His honour went on:

PN550

In this case it would have the benefit of the Full Court's judgment ...(reads)... where such an application was being pressed.

PN551

Paragraph 18 - on 20 November the bank's Federal Court application to stay the Adams proceedings was heard before Moore J. Transcript of that hearing is exhibited as DP12. His Honour reserved judgment on the stay application. During the course of submissions, at page 30 to 31 the following exchange between senior counsel for the FSU, Mr Adams, and Moore J took place:

PN552

MR ROTHMAN: Yes, your Honour, that is the point I sought to make ...(reads)... Perhaps I am misreading his decision.

PN553

And we submit, your Honour, that his Honour was not misreading the way in which you had viewed the matter:

PN554

MR ROTHMAN: I think you may be taking it too far, your Honour ...(reads)... ultimate entitlement to an order for the payment of money which - - -

PN555

Those last three passages, your Honour, are, in my submission, very significant. Paragraph 19 - on 7 February this year Moore J issued his decision refusing to grant the stay application and that decision is exhibited as DP13. His Honour stated:

PN556

Assuming that the Commission and would wish to alter those rights ...(reads)... have to be determined in the principal application.

PN557

There is no doubt, your Honour, that the union has significantly changed its position from that which was put to you and which moved you on the 17 and 18 June on those two hearing days and which led to the initial adjournment which was repeated by your Honour's second decision in April the following year. In other words, your Honour, if the union had put to you then the position that it holds now, then your Honour, I submit, would not have adjourned 1820.

PN558

Clearly, Mr Rothman, as set out at the top of page 7 of the affidavit, the extract there, makes it clear that the union is now seeking orders from the Court which will lock the position, so to speak, insofar as the representative group is concerned, put the Commission in a position where no amount of award variation can unstitch what it hopes to achieve in the Court.

PN559

Paragraph 20, the bank has made an application for leave to appeal the decision of Moore J refusing the stay and it is understood that that Full Court hearing will occur in around about August of this year. Paragraph 21, on 23 April 2003 the parties made submissions to Moore J as to the form of separate question for trial. A copy of the transcript of proceedings on that day is exhibited as DP14 and during that hearing senior counsel for the FSU, a Mr Adams, said this:

PN560

Before getting to that I should probably deal with this ...(reads)... these proceedings which have already been determined and declared.

PN561

And there it is, your Honour, clearly and squarely placed before the Court and now before your Honour. My friend for the union informed his Honour that a decision favourable to the FSU and Mr Adams would prevent the CBA from getting a variation under section 113(2) which would affect the rights of the litigants, being the FSU and the representative group.

PN562

MR GINTERS: He said it may, he didn't say it would.

PN563

MR DOUGLAS: My learned friend said it may, he said "may". Of course I read that, "may preclude." That, in my submission, is enough to make it clear that the Commission is now faced with a situation very, very different to the one that existed back in June 2001. Just completing that passage on the last page of the affidavit - and this is Mr Rothman:

PN564

But that is a different issue and with respect not an issue which would concern this Court ...

PN565

It obviously should be a matter of concern for this Commission:

PN566

... this Court whose function and duty with respect is to determine the application that is before it.

PN567

This Commission has a like duty and function, being to determine the section 113(2) application which is before it. All that simply means is that an application in the Commission would not overtake a binding order of the Court in relation to particular parties and, with respect, that is a trite position - so much for Mr Ginters' "may". Mr Rothman is really not saying may, he is saying that will be the position. He is being open and honest with the Court but that, in my submission, is sufficient to unstitch 1820 from the adjourned position that it is in, the position that it has been in for some two years.

PN568

As far as 1820 is concerned and proceedings with respect to its merit in this Commission, the CBA's position, your Honour, is simply this and it always been so, it seeks to prevent the representative group and of course the 1200 who went from the CBA to EBS by choice on terms and conditions of employment equal to or better than - and with their CBA service preserved, seeks to prevent by an order of this Commission determined after a full hearing of the merit pros and cons, that they shouldn't be entitled to severance pay. That is a function within the authority of this Commission, it sits within the Commission's scope by reason of the terms of section 80(A)(2).

PN569

I go briefly to the outline, your Honour; I go to paragraphs 7 and 8. Paragraph 7, a reference is made to the fact that the reference application was made in 2001 and was declined and that an application was made by the union to adjourn these proceedings to a date to be fixed. The application was granted by your Honour and that that decision was confirmed or re-affirmed in April of the following year. Now, as we point out at paragraph 8, at the time 1820 was originally adjourned by the Commission back in June 2001, a hearing of the Adams proceedings was imminent, that is to say it was listed for hearing in the Federal Court on 9 July. Remember Mr Haylen's submissions about, "It will only be a few weeks."

PN570

Certainly the impression was given to the Commission I would suggest on that occasion, or those two occasions in June 2001, that the Commission had the right to expect that a decision would be forthcoming from the Federal Court in the Adams proceedings in the third quarter of that year. Now, that hearing did not proceed and the matter still hasn't been heard by the Court and no hearing dates have been fixed. We refer to sections 98 and 110(2)(c) in paragraphs 9 and 10 of the outline - I also refer to the public interest section, section 90 and we submit that having in mind the position now held by the FSU and clearly stated to the Court, that it is in the public interest that these proceedings become unadjourned.

PN571

We say in paragraph 11 that those two sections are not mere sortations, they impose positive obligations on the Commission and qualify and circumscribe the scope of its jurisdiction as a statutory Tribunal. As I said earlier, we submit that there is a heavy onus on the Commission to hear and deal with by determining arbitrally the fate of this section 113(2) application.

PN572

THE SENIOR DEPUTY PRESIDENT: Is that a misprint in paragraph 14, the reference to Commissioner Cribb?

PN573

MR DOUGLAS: Yes, it is, your Honour. I was about to point that out, that should be a reference to Commissioner Larkin. Could I take your Honour to a decision of Senior Deputy President Lacy in Yallourn Energy - the Yallourn Energy matter which is PR912247, your Honour. It should be in that bundle of decisions. It is the last one, your Honour, thank you - could I take your Honour briefly to that? Firstly to paragraph 1 - Yallourn Energy has applied to the Commission for an order under section 170MW7. At paragraph 3 the CPU has applied for an adjournment of the Yallourn application - the third dot point because the proceedings in the Federal Court. Paragraph 7 on page 2:

PN574

The decision in the Federal Court proceedings -

PN575

Mr Mattison contended -

PN576

will reduce the scope of the dispute in the matters currently before the Commission ...(reads)... efficient and effective use of the resources of the parties and the Commission.

PN577

I go then to page 4 paragraph 17:

PN578

There is a body of case law in relation to section 111(1)(g) which relates to the Commission's power ...(reads)... of a related matter being heard in the Federal Court.

PN579

Next paragraph third line in:

PN580

More specifically the cases suggest that the Commission will be more inclined to grant ...(reads)... of the substantive application by the Commission.

PN581

Well the events of the last two years, your Honour, demonstrate that the June adjournment of 2001 hasn't expedited anything -

PN582

And dismiss an application for an adjournment if there is no evidence ...(reads)... requires the Commission's immediate attention.

PN583

Then the following paragraph:

PN584

Further the Full Bench of the Commission in CPSU Employment National suggested ...(reads)... the opportunity of putting its case -

PN585

and we say we are so deprived here -

PN586

in circumstances where it was argued that the Commission's intervention ...(reads)... would be adversely affected.

PN587

And we say that the adjournment of this matter puts us in a position, particularly having in mind what Mr Rothman has recently said to the Federal Court, where the CBA could be significantly disadvantaged by this matter not being heard as to its merits in circumstances where a further adjournment may put the bank in a position where it is denied its rights altogether. In paragraph 20 his Honour said:

PN588

I also note that in O'Connor the Full Bench seemed to suggest that the Commission ...(reads)... how quickly or otherwise the Court will dispose of the related matter.

PN589

I go to paragraph 15 of the outline. We say that the Commission has a duty to act judicially and we refer to Citicorp - I think Citicorp is in a bundle, I am not sure where, your Honour.

PN590

MR GINTERS: The second one.

PN591

MR DOUGLAS: The second one, I take your Honour to that, to page 653 at point 40, availability of mandamus.

PN592

THE SENIOR DEPUTY PRESIDENT: 653?

PN593

MR DOUGLAS: 653 at the top, it is the page number in the ALR, your Honour.

PN594

THE SENIOR DEPUTY PRESIDENT: Oh, yes.

PN595

MR GINTERS: We have got the CLR.

PN596

MR DOUGLAS: You have the CLR, well, it is point 40 under the heading, Availability of Mandamus, it is right towards the end.

PN597

MR GINTERS: 519.

PN598

MR DOUGLAS: 519.

PN599

THE SENIOR DEPUTY PRESIDENT: Yes, I realise I have got both.

PN600

MR DOUGLAS: You have got both, yes. The Court said this:

PN601

It is well settled that the Conciliation and Arbitration Commission was bound to act judicially ...(reads)... to hear a party and allow him or her a reasonable opportunity to present his or her case.

PN602

And of course coupled with that duty is the duty to consider the case put. Now, your Honour, in reality if there is any merit in the FSUs position, that is to say if there is any merit in the proposition that the employees who went from CBA to EDS in 1997 should be entitled to severance pay then isn't that a matter that should be exposed and debated and considered by this Tribunal? It is essentially a proper legitimate industrial question which falls to this Commission every day to determine.

PN603

I go to paragraph 16 of the outline. There is a real prospect that these proceedings will be rendered nugatory if they remain adjourned and the Federal Court proceeds to deal with the Adams proceedings. While the FSU does not seek orders for payment of money it seeks a declaration that the employees are entitled to payment. If such a declaration is made it is at least arguable that the Commission will have no power to prevent the payment of money. Now that is a real risk particularly in light of Citicorp that the Commission will run if this matter continues to be adjourned.

PN604

This has been a concern of the bank for two years and it is a concern that has been acknowledged, we say, by Moore J, as made clear from the affidavit. Paragraph 17, it is submitted that any continuation of the adjournment is in substance a refusal to hear the matter. This is not a case where the proceedings are adjourned indefinitely on a procedural basis until some specified event occurs which will then enable the Commission to deal with the matter as it sees fit. For example, as was the case in the supplementary airlines matter. This is a case where the adjournment has a real potential to impact on the substantive rights, in fact take them totally away from the CBA of a party seeking relief from the Commission.

PN605

There is no doubt that the CBA has the right to come here to this Commission seeking relief. It is trite to say that there is a material difference between an exercise of a discretion, of a point or practice or procedure and an exercise of discretion which determines substantive rights. That is why if this matter is to remain in limbo it can only be put in that position by an appropriate determination under section 111(1)(g)(iii), that is to say by reason of a conclusion, positive conclusion by the Commission after hearing argument that it is in the public interest that the matter should remain in limbo. And the FSU has continually side-stepped any opportunity, and it has had, literally had many opportunities to put a section 111(1)(g)(iii) argument to the Commission, and that in my submission is particularly relevant having in mind the public interest requirements of section 90 of the Act. Paragraph 18, we say:

PN606

A continuation of the adjournment has a real tendency to determine the substantive rights ...(reads)... by leading them to the Federal Court. It is submitted that this in essence -

PN607

and of course the Federal Court can't decide an arbitral matter. It cannot decide the rights or wrongs of an industrial matter in terms of what is appropriate as according to the Workplace Relations Act, and the decision in Amcor demonstrates that with absolute clarity.

PN608

It is submitted that this is, in essence, would constitute a decision to refrain from hearing the matter, that is a further adjournment. It is submitted that the adjournment power in section 111(1)(m) does not provide the Commission with the power to refrain from dealing with the matter. As I have said, that power exists only in section 111(1)(g). Paragraph 19, it is submitted that there is a properly made application to vary an award under section 113 before the Commission. The Commission has a duty to expose of the application. Consistent with that duty the Commission must do so quickly, as quickly as possible, as practicable, and it must do so according to equity, good conscience and the substantial merits of the case.

PN609

And we stand ready to put what we see as being the substantial merits, stand ready to put those merits to the Commission. If the Commission were to adopt a course which saw an indefinite adjournment of the application until such time as the Federal Court determines the Adams proceedings, it is submitted that the Commission is in substance refusing to exercise its jurisdiction and falling into error. The only proper basis on which the Commission can do so is on an application under section 111(1)(g)(iii).

PN610

Paragraph 20, it is submitted that the basis upon which the Commission adjourned these proceedings in June 2001 has fundamentally changed, and I have taken the Commission to the affidavit in that respect. Paragraph - and I don't go to the dot points in that paragraph 20. I go to paragraph 22, it is submitted that these considerations even if they formed the basis for an adjournment in June 2001 can no longer do so. There has been a fundamental change in the status quo and that is by reason of the change in position of the FSU.

PN611

I point out in paragraph 3 the significant delay in the hearing of the proceedings, they have remained dormant for almost two years. It cannot be said, as was submitted by the FSU back in June 2001, that a fundamental question which can only be authoritatively determined by the Federal Court is now within days of being determined, and that is precisely what Mr Haylen put to you, to convince you that you were dealing with a simple adjournment.

PN612

Paragraph 24, the Commission must now assess the length of the delay and the likelihood of significant further delay in the context of its obligations under the Act. Reference is made to the Visiboard case in paragraph 25, same - paragraph 26, this raises some similarities with the present proceedings in the decisions of the Commission as currently constituted in June 2001 and April 2002, rather than 2003, it is clear that the Commission was influenced by the fact that a decision of the Federal Court would assist the Commission because it would determine whether redundancy situations arose in October '97. However, it is submitted that any such assistance is now greatly outweighed by the ongoing delay in the hearing and determination of the proceedings.

PN613

And I refer back to two occasions where Moore J has made it perfectly plain, the truth of which there is no doubt in any event, being that the Commission in hearing 1820 has the power to interpret the existing award provision, aside from the fact that we say, proceed on the basis that the union is right. We say in paragraph 27 that the undertaking made by the FSU in June 2001 needs to be put in its proper context. The position of the FSU has fundamentally changed. At one stage it sought a full hearing before the Federal Court on all issues.

PN614

I go to paragraph 29, it is now clear that there is a real risk of prejudice to the bank if the adjournment continues in the light of the undertaking provided by the FSU and this prejudice was not present or apparent in June 2001. In the light of the position now taken by the union it seems that if it is successful in obtaining a declaration from the Federal Court the FSU will argue that the Commission is powerless to prevent an entitlement to severance pay arising from members of the class in the Adams proceedings. That clearly follows from the submission put by Mr Rothman. That is exactly what the FSU will argue. Clearly this possibility visits significant prejudice to the bank and has the capacity to deny it of its right to be heard.

PN615

What should the FSU be frightened of if the merit or demerits of 1820 are heard by the Commission? Is it frightened that the Commission will say that the people who went to EDS in 1997 should not be entitled to severance pay as a matter of industrial merit? Is that what it is frightened of? Of course, your Honour. That is why it has taken the position that it has before the Federal Court.

PN616

Paragraph 31, the potential for significant prejudice to the bank needs to be weighed against the prejudice to the FSU of granting an adjournment. It is submitted that any prejudice to the FSU is superficial, the FSU has prepared evidence for its case in the Federal Court, this evidence is likely to be utilised by it in the Commission. In the light of the different functions of the Federal Court and the Commission and the need to progress cases simultaneously in both jurisdictions it is not a sufficient basis upon which the further progress of the award variation should be restayed.

PN617

Now that point was one of the dot points that your Honour relied on in your first adjournment decision. That matter being in two places at the one time, as far as the FSU is concerned, is not alone sufficient to continue this adjournment and that is the only argument that it has left to it. So, we say, your Honour, this matter can no longer be said to be procedural. The Commission is dealing with a matter of substance and it is our submission that the Commission should do its duty and set down 1820 for hearing and determination. If your Honour pleases.

PN618

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ginters.

PN619

MR GINTERS: Your Honour, your Honour's determinations of the previous applications and reasons for giving those decisions are to be found what is now CBA7. The first decision is to be found behind, I think you will find it is exhibit DP5, your Honour. I don't take your Honour to them in any great detail because your Honour is no doubt as well, if not more familiar for those reasons for decision than the parties. Can I simply take your Honour, or note for your Honour's attention, paragraph 20 of that decision is the reasons why your Honour decided to adjourn the proceedings to a date to be fixed, and there are five bullet points thereunder. I simply invite those to your Honour's attention. We say they remain relevant and remain applicable in the circumstances of the current proceedings.

PN620

The second adjournment application, or the unadjournment application made by my learned friend's client is to be found at exhibit DP9, your Honour, and the relevant paragraphs of that decision are paragraphs 19 through 21, 23 and 31, your Honour. That is 19 through 21 and 19 deals with the submissions that were made by Mr Kensey on behalf of the FSU at that time where he encapsulated the position pressed by my client. At paragraph 23, your Honour, Mr Kensey dealt with the situation arising out of the Macey proceedings and suggested there, and in my respectful submission this is still entirely relevant, that the - it is at paragraph 23 and it is the reference to paragraph number 654:

PN621

There is no reason why the matter could not be revisited -

PN622

ie, the matter of whether your Honour should unadjourn the proceedings -

PN623

when we have an Adams type decision in Macey, sorry, a Macey type decision in Adams ...(reads)... subsidiary issues about the common law rights and the parties.

PN624

Now, with respect, your Honours, that submission still has some force in circumstances where what is not currently proposed to be agitated before Moore J is the full proceedings, but the debate before his Honour at the moment is a debate as to a separate question to be tried. Both parties have put a separate question to his Honour and his Honour has currently reserved on the question of whether his Honour will determine a separate question and if so which separate question his Honour will try.

PN625

Then also, your Honour will see that at paragraph 31 of those reasons for decision your Honour has encapsulated your Honour's findings again in bullet points - and I commend those to your Honour's attention. Your Honour, my learned friend has taken you to.

PN626

Your Honour, my learned friend has taken you to what has been characterised - or what your Honour, in fact, characterised as the undertaking given by Mr Haylen on behalf of my client in the earlier proceedings. The commitment that was given then is akin to the commitment which can now be given, your Honour, in the sense that my client seeks the declaration that it does before Moore J. Perhaps the easiest way I can do this, your Honour, is to hand up to your Honour a copy of the separate question that my client sought to have agitated before Moore J.

PN627

I apologise, your Honour. It would appear I have inadvertently written on the back of these pages my notes of Mr Douglas' submissions. Can I simply just ask your Honour to not have regard to the handwritten notes on the back and I will just hand up a separate question?

PN628

THE SENIOR DEPUTY PRESIDENT: I will mark the document of the notice of motion in matter number 1068 of 2000 before the Federal Court exhibit FSU9.

EXHIBIT #FSU9 DOCUMENT OF NOTICE OF MOTION IN MATTER NUMBER 1068 OF 2000 BEFORE THE FEDERAL COURT

PN629

MR GINTERS: Your Honour will see there the question there is that my client proposes is whether on a true construction of clause 42 the employees listed in the affidavit of Mr Presdee are entitled to severance payments in accordance with subparagraph (g) thereof. That is what sought as a separate question. There aren't, at this point in time, applications in relation to moneys sought. That is, in my respectful submission, an important consideration for your Honour to take into account in determining whether these proceedings should be unadjourned because, your Honour, the question of whether a declaration made in those terms, whether that would undermine or undercut the Commission proceedings in relation to the Adams employees is not a question that has been determined by the Federal Court yet.

PN630

It may well be a question that the Federal Court has to determine, but that is a question that will be determined, if it needs to be, by the Federal Court and not this Commission. That the FSU does not press for money orders at this stage is, in my respectful submission, an important consideration because it places the case as it now is in much the same territory as it was when Mr Haylen gave the undertaking or the commitment to your Honour.

PN631

The reason why it is important, your Honour, is this: that the Federal Court's power under section 178(6) - and I just invite your Honour to turn it up if your Honour has a copy of the Federal Act on the bench - 178(6) is:

PN632

Where in a proceedings against an employer under this section it appears to the Court concerned ...(reads)... the Court may -

PN633

I emphasise the word "may" there, your Honour -

PN634

order the employer to pay to the employee the amount of the underpayment.

PN635

So even assuming that a declaration is made in my client's favour in the Federal Court, it is still a discretionary determination for the Court as to whether it will order the payment of amounts or underpayments; and, your Honour, it may well be that if my client is successful in obtaining the declaration that it seeks in the Federal Court, and subsequent to that 1820 is re-agitated before the Commission as it is currently constituted, or may be constituted otherwise, that the Commission ordered a variation to the award, that may well be a matter - and, I have no doubt it would be a matter that my learned friend's clients would be raising in the Federal Court proceedings to save the Federal Court that as a matter of discretion the Court ought not order monetary sums paid to the Adams employees or the Adams Group.

PN636

So it is as cut and dried as my learned friend would have the Commission believe. There would clearly still reside in the Federal Court a discretion as to whether it ordered payments subsequent to any declarations that it may make and it may well be that in those Federal Court proceedings the Court may be influenced or take into consideration that a retrospective variation has been sought and may - I emphasise "may" - have been granted by the Commission. Your Honour, in your Honour's earlier decision in the proceedings that involved the interveners - and that is matter PR925304 - your Honour made a number of findings in relation to matters which are material and, in particular, at paragraphs 97 to 99 - I won't read them to your Honour; I will just provide your Honour with the references to them - your Honour found that the Commission had jurisdiction to vary the CBA Award.

PN637

Now, your Honour is more than likely aware that the FSU has sought leave to appeal that conclusion and that finding and your Honour would also be aware that my learned friend's clients have also sought leave to appeal in relation to various matters arising out of the decision in 925304. In particular, leave has been sought in relation to whether the applications as filed were consistent with the TCR cases and model provisions; whether the TCR cases stand for the proposition that in circumstances of a transmission of business, redundancy does not arise. Thirdly and significantly, your Honour, the operative date of any variation that was made, your Honour will recall that your Honour's variations were made on and from 4 December, my learned friend has challenged that matter.

PN638

One more matter, your Honour. Your Honour also made findings in relation to the section 170MD(6) variation application insofar as the Colonial certified agreement was concerned. Can I indicate to your Honour that there are also appeals arising out of that decision, both by my client, challenging the capacity of the Commission to make variations, and by my learned friend's client, as to the operative date of that variation. On any view, your Honour, the outcome of the Federal Court appeal proceedings will be material to your Honour's determination of 1820 and would be a matter that the parties would, no doubt, want an opportunity to make submissions on as to what the Full Bench has to say to those appeals.

PN639

I am sorry, my instructor reminds me I may have said Federal Court, I mean Full Bench of the Commission. The determination of those appeals will have some bearing on 1820 and, if they are pressed, the CBA's applications to vary various Commonwealth Bank Enterprise Agreements. So in my respectful submission, your Honour, all the matters that your Honour took into account before as a basis for adjourning pursuant to 111(1)(M) still remain relevant but further and in addition to that, your Honour, your Honour has to take into account - or your Honour would be minded to take into account in my respectful submission the fact that there is an extant Full Bench set of proceedings which will more than likely impact upon your Honour's consideration of 1820.

PN640

In my respectful submission it would therefore be as an additional reason appropriate for your Honour to leave 1820 adjourned, at least insofar as your Honour would await the outcome of the decision of the Full Bench because the outcome of that decision will no doubt be a matter that the parties will wish to make submissions to your Honour about and will no doubt provide guidance as to the proper approach that your Honour would take to dealing with 1820, because no doubt my friend will be submitting that the TCR case is the start and the end of the story. Your Honour found against my friend in that case and that matter is liable on appeal.

PN641

So it would be entirely appropriate for your Honour to leave 1820 adjourned, particularly having regard to the fact that there is appeal proceedings which are yet to be determined and appeal proceedings that deal with issues that will be quite clearly material to your Honour's determination of 1820. In addition to that, your Honour, in my respectful submission the matters that your Honour found on previous occasions as to why those proceedings should be adjourned remain relevant and are still relevant in these proceedings. Unless there are any questions, your Honour, those are my submissions.

PN642

THE SENIOR DEPUTY PRESIDENT: No, very well. Thank you, Mr Ginters. Mr Douglas, I am sure you are going to do it but I am interested in your views on Mr Ginters' point about the relevance of the appeals in PR95/304.

PN643

MR DOUGLAS: Yes, well, your Honour, it really is an extraordinary proposition to hear the FSU say that 1820 has some connection with all of those other matters when for two years, or for a considerable period of time, it strenuously said that 1820 had no relationship with those matters. Your Honour, in any event the matters that will be decided by the Appeal Bench should not determine whether the Commission decides to hear 1820 on its merits.

PN644

THE SENIOR DEPUTY PRESIDENT: Won't the Appeal Bench have something to say on the retrospectivity question?

PN645

MR DOUGLAS: Of course, your Honour, it will.

PN646

THE SENIOR DEPUTY PRESIDENT: And absent the Full Bench decision, am I not, in an uncertain situation.

PN647

MR DOUGLAS: No, your Honour, I don't think so because your Honour has already made a decision about operative date. That doesn't arise in this case in one sense, in the sense of making a - ordering a variation that will only operate in a prospective way. The issue for the Commission to determine on 1820 is whether it provides the relief or not, in other words is the Commission going to make an order that will deal with the events of October 1997 or not. Now, that is in many ways I would submit different to what was before your Honour in the other cases but - - -

PN648

THE SENIOR DEPUTY PRESIDENT: It is a fine distinction, is it not?

PN649

MR DOUGLAS: To a certain extent, yes, your Honour. Your Honour, could I say this? From what my learned friend has put to you today in answer to our submissions, it is perfectly clear now that there is no basis for the Commission continuing the adjournment because of the Adams' proceedings in the Court. It is clear on the face of FSU9 and that supports what we say about the changed standard of the FSU and in particular what Mr Rothman said to the Federal Court in November of last year that the FSU's position has changed and that is accepted - or certainly that is the conclusion that his Honour Moore J has arrived at and that is seen in paragraph 9 of the affidavit.

PN650

Now, your Honour, if we are right about those things then in reality the FSU is asking you to take a new look at 1820 and simply adjourn it pending the outcome of the appeal proceedings in the other matters.

PN651

THE SENIOR DEPUTY PRESIDENT: That is right, it is a new point.

PN652

MR DOUGLAS: Yes. Now, if that is the position, your Honour, I am happy to say that those matters will be heard by the Commission towards the end of June, 24 June, one day set down and the fact the bench has required full submissions and they have been provided so that members of the bench, one would presume, would have read all of those submissions prior to the hearing occurring and that the oral addresses will be fairly limited. Therefore one can anticipate a decision forthcoming without significant delay. Now, your Honour, what we say is that the Commission should determine now that 1820 will go ahead; that your Honour should set it down.

PN653

If you determine that it should be - its hearing should await the decision and the appeal proceedings, so be it, but in the meantime, your Honour, steps can be taken for the exchange of material and so on and we would suggest to the Commission that that is the proper course that should be taken if your Honour decides that it is appropriate to adjourn because of the appeal proceedings. But certainly we say that it should be unadjourned because of the Adams proceedings. It should no longer stay adjourned because of the considerations that moved your Honour in June 2001 and in April 2002 and that those factors do not exist today, at least in a substantive enough way, to move your Honour to continue the adjournment indefinitely.

PN654

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Douglas.

PN655

MR GINTERS: Could I just say this, your Honour? I am somewhat embarrassed that the exhibit that I handed up has my handwritten notes on the back of it. Could I perhaps uplift it and arrange for my instructing solicitor to photocopy of it and send a copy to your Honour's associate?

PN656

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ginters, if it makes you feel more comfortable.

PN657

MR GINTERS: It would make me feel more comfortable, your Honour. I will do the same for my learned friend.

PN658

THE SENIOR DEPUTY PRESIDENT: Yes.

PN659

MR GINTERS: Thank you, your Honour.

PN660

THE SENIOR DEPUTY PRESIDENT: That completes the matters that are to be put today, does it not?

PN661

MR DOUGLAS: Yes, your Honour.

PN662

MR GINTERS: Yes, your Honour.

PN663

THE SENIOR DEPUTY PRESIDENT: I will adjourn - I will reserve my decision, I adjourn indefinitely.

ADJOURNED INDEFINITELY [12.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CBA6 OUTLINE OF SUBMISSIONS OF THE COMMONWEALTH BANK OF AUSTRALIA PN515
EXHIBIT #CBA7 AFFIDAVIT OF DARREN KEITH PERRY PN516
EXHIBIT #CBA8 DOCUMENT ENTITLED APPENDIX B TERMINATION AND REDUNDANCY TEST CASE MAJOR PARTIES POSITIONS AT THE CONCLUSION OF CONCILIATION 09/12/2002 PN527
EXHIBIT #FSU9 DOCUMENT OF NOTICE OF MOTION IN MATTER NUMBER 1068 OF 2000 BEFORE THE FEDERAL COURT PN629