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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N WT0416
AUSTRALIAN INDUSTRIAL A :21.6.03
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT BLAIN
COMMISSIONER LEWIN
C2003/147
APPEAL UNDER SECTION 45 OF THE ACT
BY AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION-WESTERN
AUSTRALIAN BRANCH AGAINST THE
CERTIFICATION OF AGREEMENT BY SENIOR
DEPUTY PRESIDENT POLITES GIVEN AT
MELBOURNE ON 28 APRIL 2003 IN PR930723
PERTH
10.07 AM, TUESDAY, 17 JUNE 2003.
PN1
MR J.W. NOLAN: I seek leave to appear for the appellant union in this matter and with me at the bar table is MR NICHOLAS who is an officer of the union.
PN2
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Nolan.
PN3
MR R.L. LE MIERE: I seek leave to appear together with my learned friend MR BULL for the respondent.
PN4
SENIOR DEPUTY PRESIDENT WATSON: Thank you, there is no issue about leave, leave is granted. Mr Nolan, I just note that this matter - the appeal bench has been listed subject to directions. In compliance with those directions, we have received submissions of the Australian Liquor, Hospitality and Miscellaneous Workers' Union which we will mark exhibit A1.
EXHIBIT #A1 SUBMISSIONS OF THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION.
PN5
PN6
PN7
The appeal is listed on the basis that this morning provides an opportunity for brief oral submissions in support. We note, Mr Nolan, that there appears in the respondent's submissions, to be an issue relied on by it in respect to standing to bring the appeal. We wondering if we might deal with that in the first instance.
PN8
MR NOLAN: Your Honour, my proposal would be to deal with all of the issues and I have, however, prepared some further written submissions that respond to the submissions of the respondent, rather taking up your suggestion that you wanted things in writing to be spoken to rather than dealt with in detail by way of oral submissions.
PN9
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.
PN10
MR NOLAN: And in the first section of those written submissions I deal with this issue of standing.
PN11
PN12
MR NOLAN: I have to say that Mr Le Miere hasn't had a copy of this document until just now, given to him as I've been on my feet, really only because it has been prepared yesterday and this morning for the purpose of trying to allow the proceedings to be necessarily dealt with more economically.
PN13
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN14
MR NOLAN: It seems to me, however, that it - if I may say so, that because all the issues have been joined, the question standing, Sir, is certainly addressed, but in our submissions, should be dealt with in conjunction with the other issues since you have got submissions on all of those issues in any event. And we would say, although this isn't in the written submissions, that in the alternative, if we were wrong about the issue of standing, of course there is still an issue of the proprietary or the regularity of the decision to the Commission, at first instance, to make the - to approve the agreement.
PN15
And in circumstances where that issue is one that comes before a Full Bench, the Full Bench. Of course, under section 45 has got extensive powers to do almost anything it sees fit with respect to a matter before it. The Full Bench, in our submission, could, if it is satisfied that there is a deficiency of the kind that we have identified - that is to say there is a legal error that goes to the heart of the approval process, of course notwithstanding the issue of standing, no pun intended, the Full Bench could make directions and could indeed take the order - the decision, quash the approval, deal with the matter itself, alternatively send it back to a member of this Bench or another member of the Commission to be dealt with according to law.
PN16
It would not be inhibited in any way once it became seized of the fact that there was a relevant defect in the order appeal from in our submission. Because the Full Bench, of course, has the powers of the Commission and the Commission can act on its own motion to deal with anything that is relevantly within its jurisdiction.
PN17
SENIOR DEPUTY PRESIDENT WATSON: Yes. So, you are proposing that we deal with the issue of standing, along with all the other issues.
PN18
MR NOLAN: Well, that is right. I mean - - -
PN19
SENIOR DEPUTY PRESIDENT WATSON: In the resolution.
PN20
MR NOLAN: It has been approached that way and you have got all the written submissions. It would be in our submissions somewhat artificial to dissect them out, as it were.
PN21
SENIOR DEPUTY PRESIDENT WATSON: Yes. Do you have any difficulty with that approach, Mr Le Miere?
PN22
MR LE MIERE: I don't, if it please the Full Bench.
PN23
SENIOR DEPUTY PRESIDENT WATSON: Very well. Yes, we will proceed in that way, Mr Nolan.
PN24
MR NOLAN: Yes, thank you your Honour. Could I then go back to the first lot of submissions exhibit A1.
PN25
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN26
MR NOLAN: And just speak to that, and I am sure your Honour, as a Commissioner, you will pull me up if you think I am doing no more than reading what you have already read. But I will endeavour to deal with the - or emphasise the most significant points that we think, arise from the decision. Of course, it will have been evident from what you have read that we say that the learned Senior Deputy President failed to really turn his mind properly to what was entailed - or what is entailed in the no disadvantage test that must apply when one comes to approve the certification of an agreement such as this.
PN27
What we have endeavoured to do is simply to highlight some of the matters that were in contention, that were brought to the attention of the Senior Deputy President in the proceedings which, as you will have seen, were fairly short, which is not surprising in a matter such as this. But nonetheless there were 10 bases upon which it was argued by the union that the agreement failed the no disadvantage test and those matters are just set out in point form - or some of them are set out in point form at paragraph 2.1 of the written submissions.
PN28
So there are issues of shift allowances and so on that were canvassed and, of course, we say, relevantly there was no exercise undertaken which would have permitted the Senior Deputy President to satisfy himself one way or another about any of those issues, because there was no evidence before him that canvassed in a sufficiently tangible form, the issues that went to the benefit and detriment of the agreement as compared with the award, sufficient to allow him to make the kind of assessment that is required by the no disadvantage test. And, so we say, for example, there was no material put - this is in paragraph 2.2, which demonstrated, for example, the practical operation of a proposed shift allowance payments by reference to the actual and typical rosters which might be worked by employees. Rather, such statements as were made, were made at a very general level and we say, necessarily, didn't come up to the mark so far as allowing the Senior Deputy President to come to grips with the sorts of issues that needed to be weighed in the balance when one was to determine the relative benefits and detriment of the agreement as compared with the award. And we have given some examples of that, but the most we would say, egregious example of the deficiencies of the agreement are those discussed at paragraph 2.4 of our written submissions and following, and that is this issue of this so called voluntary additional hours clause.
PN29
Now, as we point out, the whole idea of a clause provided for voluntary additional hours or voluntary overtime in circumstances where the clause itself is expressed to positively require the employee to undertake that work unless the employee has some reasonable grounds for refusal, really turns the whole notion of voluntariness inside out. In other words, it is just - it just makes no sense at all. It is a misdescription of the clause to suggest that it entails any voluntariness on the part of the employee concerned. Because the clause, in its terms, obliges the employee not to refuse to work such additional hour, that the consent, in other words, to work the so called additional hours, should not be unreasonably withheld by an employee.
PN30
Well, one struggles to see the difference between circumstances where that kind of consideration would apply and the ordinary circumstances where an employer is at liberty to require employees to work overtime, so long as that overtime and that requirement is reasonable.
PN31
Now, there is very very little distance between those two concepts and our submission. So really what the voluntary additional hours clause amounts to is something in the nature of a compulsory work requirements which is really clothed with the language of voluntariness, but on examination, is far from a voluntary requirement.
PN32
Now, none of that was, in our submission, analysed sufficiently or in a way that would permit the Senior Deputy President to come to a final conclusion exercising the jurisdiction he was obliged to exercise regarding the weighing and the balance of that and the other conditions as were identified. And it is simply, as I have said, a misnomer to say that it is a voluntary work clause. But, so far as it entails those difficulties, it was thought by the Senior Deputy President that there were some, at least, not in the direction of some restoration in the balance, if you like, lost by reason of the operation of that clause, by the presence of the agreement of clause 28 which is entitled: no disadvantage, and that is to be found at paragraph 2.5 of clauses extracted there.
PN33
That, in our submission, is itself an opaque provision, hardly sufficient to reassure anyone that it does the job that it was apparently thought might be intended to do, because it is expressed in such a way that it has no certain operation for reasons that we deal with a little later in the submissions. And that, upon analysis, it is a very difficult clause to come to grips with as really underwriting any sort of legal right enjoyed by the employee that somehow or other makes up for the fact that what is described as a voluntary overtime clause is really a single time overtime clause. But the one that is clothed in words of misdescription, namely suggested to be voluntary when no voluntariness is indeed a part of the clause.
PN34
Now, we turn to the written submissions to look at the no disadvantage test at what precisely is required.
PN35
COMMISSIONER LEWIN: Just before you do that, Mr Nolan, let us assume for the moment that you are successful on all matters. What is it that you are seeking at the end of the day, that the Full Bench do?
PN36
MR NOLAN: Well, the Full Bench should revoke the approval, revoke the agreement, because the - in our submission the learned Senior Deputy President has constructively failed to exercise the jurisdiction by acceding to the approval that he has, so in those circumstances an appeal lies to the Full Bench. The Full Bench has a veritable smorgasbord of remedies that it can turn to, of course. But in circumstances such as this, the appropriate course in our submission is for the Full Bench to quash - set aside the certification. And if it is thought that the agreement merits certification or some version of it, well then the matter can be started again.
PN37
SENIOR DEPUTY PRESIDENT WATSON: Started again or the initial application to be properly heard, if you like, and determined.
PN38
MR NOLAN: Well, that is the alternative. It could be, in the alternative, remitted to a member of the Commission, member of this bench or another member of the Commission to be heard and determined according to law.
PN39
SENIOR DEPUTY PRESIDENT WATSON: Yes. One option would be for the Full Bench itself to deal with that, but that would then presumably require going through - if the Full Bench believe the agreement should not be certified in its present form, the issue of undertakings or such other action under section 170LV, which I suppose complicates the Full Bench process.
PN40
MR NOLAN: Yes. Well, that is right. That would strike me, with respect, as being a bit too awkward to achieve.
PN41
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN42
MR NOLAN: It would be preferable for the matter to go to a single member of the Commission to be dealt with according to the decision of the Full Bench and then those matters could be ventilated as appropriate.
PN43
SENIOR DEPUTY PRESIDENT WATSON: Yes. Very well, thank you for that.
PN44
MR NOLAN: So that should be the consequence. Now - - -
PN45
SENIOR DEPUTY PRESIDENT WATSON: Just before you leave that please, Mr Nolan, the issues arise out of a decision made by Senior Deputy President Polites on 28 April 2003. The Senior Deputy President seems to have made a decision at paragraph 14, in particular, to the effect that he should not refuse to certify the agreement.
PN46
MR NOLAN: Yes.
PN47
SENIOR DEPUTY PRESIDENT WATSON: Is that all that he did, to issue this decision including that conclusion?
PN48
MR NOLAN: Well, I don't think so, with respect, although perhaps it would suit me to say so. But I think, you go back to clause 9 - he makes the positive finding there that the agreement passes the no disadvantage test. He says, and I can just pick it up.
PN49
SENIOR DEPUTY PRESIDENT WATSON: In paragraph 13 he specifically says in the final analysis:
PN50
I am satisfied that the agreement passes the no disadvantage test.
PN51
And the reasoning is contained in paragraph 9.
PN52
MR NOLAN: Yes, that is right. He says:
PN53
He has considered all the matters put in paragraph 9. Not without difficulty I have concluded the agreement on balance passes the no disadvantage test.
PN54
SENIOR DEPUTY PRESIDENT WATSON: I think we might be at cross-purposes. Did the Senior Deputy President take any other steps than issue this decision?
PN55
MR NOLAN: Well, not as far as I know.
PN56
COMMISSIONER LEWIN: They issued a certificate.
PN57
SENIOR DEPUTY PRESIDENT WATSON: They did? I beg your pardon. That just didn't appear on my file, that is all.
PN58
MR NOLAN: Sorry, the certificate? Sorry, yes there is a certificate issued in conjunction with the decision.
PN59
PN60
SENIOR DEPUTY PRESIDENT WATSON: I beg your pardon. It is just an omission from the file that I was looking at, that is all.
PN61
MR NOLAN: So, could I just indicate, we go on in the written submissions at section 3 that consider what the no disadvantage test requires. We set out the relevant provision section 170XA and we suggest that the legal test required under the section is quite precise.
PN62
The agreement must be taken and disadvantage the employees in relation to their terms and conditions of employment only ...(reads)... At section 170LT operates to apply section 170XA to the approval process.
PN63
And we go on to say that there is no quarrel with the proposition that the requirements of Section 170LT are mandatory, and strict compliance with those provisions is fundamental and we cite there that Energy Development's case. And, of course, because XA is imported into LT, similarly there is a strict requirement that XA apply. And we there set out a passage from the Energy Development's case that deals with an earlier decision in the Mobile Food Vans Enterprise Agreement decision. That had more to do with the processes that led up to the agreement being made, but relevantly we have emphasised at paragraph 22 of Energy Developments, that sentence, it says:
PN64
After considering whether or not an appeal lies with respect to the requirements of section 170LK
PN65
and so on, the Full Bench says:
PN66
This is because Section 170LK is intended to establish objective limits of the jurisdiction of the Commission to certify agreements between employers who are constitutional corporations and their employees.
PN67
And we say that is correct with respect that there is an objective and quite confined test that needs to be satisfied. And we go on to say that:
PN68
this entails, of course, this assessment, whether or not the approval or certification would result on balance in a reduction in the overall terms and conditions of employment of the employees as compared with the award.
PN69
And we make the observation that it doesn't appear, to us at least, that this notion of the requirement being, on balance, one that involves a reduction, has been the subject of too much particular consideration by decisions of the Commission. We refer to the Macquarie dictionary definition of balance. We say that is a readily understood concept and we say that what can be made of this is that there must be - it must be said that the benefits available to the employees under the agreement must be equivalent to those contained in the relevant award, having regard to the fact that there does not need to be a direct or line by line correspondence between each of the items of the agreement on the one hand, and the award in the other.
PN70
But we say that there must, however, be an equivalence that does, at the end of the day, provide the same or more generous benefits when one has regard to the entirety of the award of the agreement. Now this may have given a degree of impression at judgment when that overall assessment is undertaken, but we say the test is nevertheless, still an objective test and it requires not just a broad impressionist assessment of the agreement as opposed to the award. And I interpolate there we identify the major flaw in the Senior Deputy President's decision as being one that applies a broad brush impressionistic assessment rather than a close analysis of the benefits and detriments.
PN71
We say it must contain evidence of an analysis of the corresponding provisions of the award - the agreement, and a clear statement of those matters that have been taken into account in reaching the conclusion which is required by the section - that is, on balance, there has been no disadvantage. We say that is a rather more analytical or elaborate test than is evident from the decision of the Senior Deputy President. So we say, in relation to the decision, first of all, at the general level, there was no comparison of advantages and disadvantages likely to accrue to employees by the application of particular provisions of the agreement.
PN72
No analysis of say, for example, shift allowance clauses to typical rosters, no analysis of the benefits that outlay or compensate for the loss to an employee of working extended shifts and the extra week's annual leave that was discussed. And there was no, likewise, no analysis or considered treatment of the extent to which the allowances that have been omitted from the agreement, apply to employees employed under the award, what the likely impact would be upon employees at the elimination of those allowances. So we say that the kind of detailed analysis that is entailed or required by the section is simply just not undertaken and the most - - -
PN73
SENIOR DEPUTY PRESIDENT WATSON: Mr Nolan, speaking of that issue of the shift allowances. The sort of assessment you are suggesting requires a practical assessment against the mode of operation or intended mode of operation.
PN74
MR NOLAN: Yes.
PN75
SENIOR DEPUTY PRESIDENT WATSON: - - - and you say there should be regard to the actual representative shift rosters.
PN76
MR NOLAN: Yes.
PN77
SENIOR DEPUTY PRESIDENT WATSON: In this case, as I understood it and correct me if I am wrong, Mr Uphill for the employer effectively put a position that the employer could restructure the shift rosters and that, in itself, would avoid the payment of the night-shift allowances, so that absent the agreement, then practical mode of operation available to the employer would be such to avoid those payments, in any case. Is that the correct basis of comparison against what might flow from the agreement?
PN78
MR NOLAN: Well, I think that is what was intended by what Mr Uphill said about the rostering, but of course, apart from a mere assertion from the bar table, there is nothing to come to grips with to determine whether or not that is right or wrong.
PN79
SENIOR DEPUTY PRESIDENT WATSON: Was it challenged?
PN80
MR NOLAN: It doesn't appear to have been challenged. Well, I guess that is not right, sorry. I withdraw that. I think it was - issue was taken about the question of shift allowances and a complaint was made that the shift allowances were not - you know, where a significant difficulty. Now, whether that specific contention was challenged, I will have to check, but it may be that the specific assertion was not challenged in terms. But, of course, whereas it is often said that unchallenged assertions from the bar table are sufficient for practical purposes in the - you know, the cut and thrust of industrial dispute settlement, one wonders whether that is entirely sufficient for the purposes of determining the issue that goes to jurisdiction.
PN81
SENIOR DEPUTY PRESIDENT WATSON: Well, was it wrong?
PN82
MR NOLAN: Was it wrong? Well, it may well have been wrong, and we have taken - we have certainly, in the material that we have submitted, we sought to point out what we thought were difficulties, including difficulties with the application of the shift allowance. But, if that issue is never resolved one way or another, it is still an issue that, in our submission, the Senior Deputy President was entitled, if he was going to take into account, come to grips with in a way that was more satisfactory than simply accepting an assertion made from the bar table about that matter.
PN83
So that was one of, as we say, a variety of issues where there was simply left hanging, the issue of whether or not these matters were really addressed satisfactorily or not, in the course of the certification. And the one that we have, of course, concentrated upon, because that is the one that was the subject of the most discussion, albeit in circumstances where there was not a great deal of discussion about any of these issues, is this issue of the voluntary overtime clause. That is one where we can see starkly, the issues that were before his Honour - the issues that his Honour had never come to grips with, to determine whether or not that was a satisfactory provision.
PN84
And we have been critical of his Honour's approach to that because we have said that so far as one can examine what his views were about the voluntary additional hours clause, they fell short of what would be required to come to a - to make an assessment of that clause in the overall context of this balancing exercise that was necessarily entailed. And, of course, we still don't know, because there has been insufficient detail supplied with the reasoning.
PN85
We still don't know the extent to which there were other benefits and detriment that were really weighed in the balance. I mean, we are really in the dark about all of that, because the matter proceeded on at the level of such generality, not withstanding the union's expressed concerns and not withstanding, in any event, the Commission's independent duty to apply section 170XA, notwithstanding what was put before it. The Commission, in our submission, has to satisfy itself about that. That that test is met and it may be necessary for the Commission in proceedings like this, to tell people to go away and come back with some more information.
PN86
That is not - that wouldn't be a surprising request to be made, where the information was well short of the mark, because the test has to be applied and the test necessarily involves, as we suggest, the tangible weighing up of benefits and detriments. And the only way anyone looking at the decision could come to grips with whether or not that exercise has been undertaken, is to read the words of the decision.
PN87
And the duty to give reasons, of course, is one that falls upon the Commission and the only way one can answer the question: "Has the test been answered?" is by examining the reasons and by determining whether or not the analysis of the benefits and detriments that we say apply, has been undertaken.
PN88
DEPUTY PRESIDENT BLAIN: Mr Nolan, the Act says that the Commission must be satisfied that the agreement passes the no disadvantage test.
PN89
MR NOLAN: Yes.
PN90
SENIOR DEPUTY PRESIDENT WATSON: It doesn't say how the Commission should reach this view, apart from the requirements in LK and LT and other specific provisions and nor does it say in how much detail the Commission should give its view. Its view is a discretionary judgment. I wonder if you would like to comment on that?
PN91
MR NOLAN: Yes, well, your Honour. I would quarrel with the proposition that it is a discretionary judgment, because it is not a matter of the state of satisfaction of the Commission. I mean, there are certain statutory tests that say, you know, the Tribunal member must be satisfied that something or other has occurred. This doesn't - this isn't one of those tests.
PN92
The Commission is obliged to apply section 170XA. In so doing, it has to be satisfied, it has to not just be satisfied in a general way, but it has to apply section 170XA. In other words, it has to be - it has to find as a positive finding, that the agreement passes the no disadvantage test in accordance with section 170XA, and that is that, subject to those other subsections, an agreement disadvantages employees in relation to their terms and conditions of employment, only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under relevant awards or designated awards.
PN93
So, it doesn't - it is not a test that is pitched at a high level of generality, if you like. It is a test that concentrates the mind to the specific requirements of section 170XA and it can only be said that the state of - the relevant state of satisfaction can be achieved, if you like, if section 170XA has been itself satisfied. And that is, that if the Commission has to be - has to establish that in relation to terms and conditions of employment, the approval or certification will result, on balance, in a reduction - or would not result, on balance, I should say, in a reduction to the overall terms and conditions of employment of those employees under relevant awards.
PN94
So that is a rather more precise and definite state of affairs that might be - might apply in circumstances where, for example, you determine an unfair dismissal case, where you have got to determine whether or not it was fair and reasonable in all of the circumstances that the employee was dismissed.
PN95
This isn't a rule of thumb test. This is a test that directs attention to a balancing exercise that requires you to look at the reduction - any reduction in overall terms and conditions of employment, any increase in overall terms and conditions of employment and engage in a balancing exercise. And it seems to me that you could only engage in a balancing exercise if you have got something that you can put in conceptually on one side of the scale and something conceptually you could put on the other side of the scale and weigh them in the balance.
PN96
MR NOLAN: And so that means in our submission a rather more precise and perhaps onerous test is placed upon the Commission than might be perhaps preferable, but nonetheless that is what the words require. And it seems to us it is impossible to say that you have engaged in a balancing exercise, unless you are really able to identify which is it that - which issues it is that you put on the one side to balance against the issues of the other side. And it requires a much more, perhaps mechanical exercise than might by the other two have been thought.
PN97
DEPUTY PRESIDENT BLAIN: But would you accept that there are a variety of methods by which the Commission could do that and it is not bound to follow any one particular method?
PN98
MR NOLAN: It may not be bound to follow a particular method. Perhaps I could put it this way. There will be some conditions that don't readily translate to the dollars and cents if you like. There might be conditions as to leave or to rest breaks and so on that you can't really translate readily into money amounts. So, that that there is no common currencies between the benefits on the one hand and the detriments on the other. But it seems to me that unless they are identified - unless the benefits and the detriments are identified at least, the member of the public who comes to read the decision is completely at a loss to determine what it is that has motivated the Commission in its thinking that this agreement, on balance, doesn't result in a reduction of the terms and conditions it would otherwise apply under the award.
PN99
And that - even if one can say well a member of the public perhaps couldn't care less about it. It is at least important for the employees who are going to be covered by the agreement, who are themselves depending on the judgement being made by the Commission in accordance in the legal test to be reassured if you like, that the no disadvantage test is being applied to their benefit and their favour. So, there is a strict requirement. And in the absence of some articulation of what it is that are put in the various sides of the scale. One is at a loss to determine quite what was the - what it was that was the thinking of the Commission in coming to the decision that section 170XA had been met.
PN100
Now, as I said earlier, that picture is perhaps completed by the requirement upon the Commission to give reasons for its decision. And there is an unquestionable requirement on the Commission to give reason and in our submission those reasons must articulate what it is that the Commission's doing. And in this particular case those reasons must articulate how it is the Commission is comfortably satisfied that section 170XA has been met. That is not something to be determined by reference to, you know, broad generalisations, but to the precise terms of section 170XA, which require an assessment, whether or not on balance there was a disadvantage to the employee.
PN101
COMMISSIONER LEWIN: Mr Nolan - - -
PN102
DEPUTY PRESIDENT BLAIN: Thank you, thank you Mr Nolan.
PN103
COMMISSIONER LEWIN: Sorry, I beg your pardon. Mr Nolan, I think I understand your argument on this particular point to be that there is no jurisdiction to certify an agreement unless it passes the no disadvantage test.
PN104
MR NOLAN: Yes, perhaps with one exception - - -
PN105
COMMISSIONER LEWIN: Whereas I think perhaps the - yes, sorry.
PN106
MR NOLAN: The exception is the special circumstances exception if you like.
PN107
COMMISSIONER LEWIN: Of public interest.
PN108
MR NOLAN: Yes, where the circumstances of temporary - I forget the exact words, of a temporary crisis of the business.
PN109
COMMISSIONER LEWIN: But that is not addressed in this decision - - -
PN110
MR NOLAN: No, not at all.
PN111
COMMISSIONER LEWIN: - - - so in context, given that it has not been addressed and the conclusion has been reached that the agreement does pass the no disadvantage test.
PN112
MR NOLAN: That is right, that is right.
PN113
COMMISSIONER LEWIN: What you are saying is that that conclusion is wrong - - -
PN114
MR NOLAN: Yes.
PN115
COMMISSIONER LEWIN: - - - and if it is wrong there is no jurisdiction to certify the agreement, is that right?
PN116
MR NOLAN: That is right, that is right.
PN117
COMMISSIONER LEWIN: And that conclusion is appealable by virtue of that lack of jurisdiction that arises if it is jurisdictional error. Is that right?
PN118
MR NOLAN: It's a constructive failure to exercise the jurisdiction and it's an error - sorry.
PN119
COMMISSIONER LEWIN: Yes, and I understand that you say essentially, and not putting it very broadly, is that the Commission can't arrive at the relevant conclusion under section 170LT(2), for the purposes of its satisfaction intuitively - - -
PN120
MR NOLAN: That is right.
PN121
COMMISSIONER LEWIN: - - - it must arrive at that conclusion judicially. That it must apply a judicial process which is described in the legislation of balancing the benefits and detriments of the relevant instruments which are described in the no disadvantage test provisions of 170XA. That is the essence of the appeal isn't it?
PN122
MR NOLAN: That is the argument, yes.
PN123
COMMISSIONER LEWIN: Yes.
PN124
MR NOLAN: That is right. And one is driven back to XA and one has to apply XA, there is no getting out of that.
PN125
COMMISSIONER LEWIN: And you can't do it intuitively.
PN126
MR NOLAN: That is right, that is right.
PN127
COMMISSIONER LEWIN: You have to actually use some sort of judicial process to arrive at the result and I mean not just the process narrowly described affording procedural fairness or natural justice. But also a rational process. An objective process, not a subjective process. Is that right?
PN128
MR NOLAN: That is right. The obligation upon the Commission to of course give reasons gives flesh - puts flesh on the bones if you like that allows us to ascertain whether or not that precise process has been undertaken. And so those reasons will necessarily involve the articulation of whether or not the requirements of 170XA(2) have been met. And one is only able to come to grips with that if one has the benefit of that articulation. And so that is why we say that this is a legal test which is quite precise.
PN129
There may be some parts of it that entail the kind of impression and judgement and so on that might be the kinds of things one comes to expect from experienced members of the Commission. But you know that is a long way from saying it is a broad brush discretionary approach that is sort of at large. That simply requires some kind of broad impression to be created about the - whether or not the thing is fair.
PN130
COMMISSIONER LEWIN: Well, for the purpose of what I put to you, I distinguish between intuition and judgement.
PN131
MR NOLAN: Yes.
PN132
COMMISSIONER LEWIN: The acted judgement is a different thing to an intuitive conclusion.
PN133
MR NOLAN: Yes. And it may be said there is no - section 170XA has no role for intuition if you like. It posits a test and that test has to be applied. The test has to be applied according to law by recourse to judicial reasoning, the kind of reasoning that is expected of a quasi judicial Tribunal. And, of course, if we were in the Federal Court on a prerogative writ application, they are precisely the kinds of considerations that would be brought to bear. Now, can I just say then that I have made reference in paragraph 3.9 and 3.10 to some authorities that I won't refer you to. But that reminds me, in fact, that I haven't handed up the folder of authorities. Could I do that.
PN134
If, as we say, the kinds of considerations that we have identified are necessary for the exercise of the jurisdiction, that is to say they may give rise or their failure to acknowledge them, gives rise to relevant jurisdictional error, then the kinds of considerations that are discussed in some of the cases that I have referred to come into play. So, if the Tribunal has to take the matter into account in the exercise of its jurisdiction, then these sorts of tests which can apply to - it has to be admitted to jurisdictional error as well as non-jurisdictional errors of law in circumstances apply. But we are concentrating here on the jurisdictional errors that go to jurisdiction, including a constructive failure to exercise the jurisdiction.
PN135
And this gives us, in our submission, some guide to what precisely is required to put the flesh on the bones of the kind of judicial reasoning process that I have adverted to in determining this balancing exercise. And in particular, those words of Lindgren J that I have extracted we say are apposite. What does it mean to take into account a relevant consideration? He says the issue is whether the decision maker really genuinely properly and effectively took into account the consideration in question. And there is also reference there to the decision of Allsop J, that a particular matter may be identifiable as having been touched upon by a decision maker but that does not necessarily mean it has been taken into account in the sense referred to in the authorities.
PN136
And another decision of Healy J. All of those serve to illustrate that if a factor is to be taken into account in the exercise of the jurisdiction, it has got to be taken into account in an earnest and effective way. And that gives us some sort of flavour of the kind of exercise that is necessarily involved and expected. If so, if we are right about this being a jurisdictional error, well, then the duty that is cast upon the Tribunal is the kind of duty that - the flavour of which is conveyed by those sorts of descriptions in those cases.
PN137
SENIOR DEPUTY PRESIDENT WATSON: Has the term "satisfaction" and "satisfied" been similarly considered by the Courts?
PN138
MR NOLAN: Look, I have to say I am not sure that it has been. I know that it was something that was mentioned in the Coal and Allied case in passing. But I have to confess that it is not something that I went back and looked at for this case. Because it seemed to me when one looks at section 170LT(2), one is not there really concerned with the, sort of, state of satisfaction of the Commission. It simply says baldly and in unambiguous terms "the agreement must pass the no disadvantage test." And, I mean, that is a completely different kettle of fish from the Commission having to be satisfied about something or another. It is an emphatic and a mandatory requirement. And one could - well - - -
PN139
SENIOR DEPUTY PRESIDENT WATSON: But there is prelude in LT(1) is there not? The Commission must be satisfied of various matters in the section.
PN140
MR NOLAN: Well, that is right. But how does one reconcile that with the emphatic words, "the agreement must pass the no disadvantage test"? I mean, section 170LT(2) will drive the determination. That doesn't serve to - by reason of existence of those prefatory words, the force and emphasis of section 170LT(2) is not diminished. It is in unqualified and bald terms. So, the Commission has got to be satisfied about a number of things but one of the things that it has to do, it has to not just satisfy itself in a broad sense, but it has to have found that the agreement passes the no disadvantage test. Because the pre-condition to satisfaction is that the agreement must pass the no disadvantage test.
PN141
COMMISSIONER LEWIN: So, I think it is the use of the word "requirements" in section 170LT(1) that perhaps will have to be looked at.
PN142
MR NOLAN:
PN143
Unless it is satisfied that the requirements of this section are met.
PN144
Well, that is right. One of the requirements is that the agreement must pass the no disadvantage test. So, there are some things that are absolutely stark and bald and mandatory requirements. There are perhaps other things within LT that might allow for, you know, a matter of judgment. But section 170LT(2) is certainly not one of them. So, what we have endeavoured to do then is to really play to the strongest point, as it were. As Mr Le Miere said, the high water mark of our submission really is this voluntary additional hours clause. But it serves to illustrate all of the things that we have been saying. And we have said that the voluntary additional hours clause is quite defective.
PN145
That even in its own terms, we say, the manner in which my learned Senior Deputy President has endeavoured to come to grips with it, really fails to appreciate what it really entails because, as we have said, it is mis-described as a voluntary overtime or a voluntary additional hours clause. It is really overtime by another name. Compulsory overtime by another name. There is no attempt to come to grips with the full implications of that clause. And what it is that is said to be weighed in the balance to make up for it. Now, you have got a situation where this so-called no disadvantage clause is said to somehow rather completely compensate for the effective eradication of overtime in the agreement.
PN146
Yet, as we suggest here, this no disadvantage clause is most uncertain in its operation. And really amounts to very little by way of any security or assurance to the employee because it doesn't mark out the metes and bounds of the circumstances in which the no disadvantage will operate. It requires the employee, of course, to make a special individual application to the employee to have this exercise undertaken. And all in all, it appears to place an additional considerable detriment on the employee far from providing any benefit or reassurance for the employee. And it doesn't say what occurs. If in fact, there is some sort of disadvantage that is determined to have occurred.
PN147
It doesn't create any legal right of the employee to recover the moneys if there is a discrepancy. All it does is provide, in our submission, a charter of uncertainty and a recipe for further disputation and a completely inchoate means of redress if it can even be dignified with the description of a means of redress. So, it amounts to nothing at all. It amounts to an additional detriment and in one view, an even more egregious detriment than the eradication of overtime itself. And so to the extent that any conscious attempt has been made to engage in the balancing exercise in respect of this particular clause, we say that that has singly failed in the way that the Senior Deputy President has approached the matter.
PN148
Because he has completely misunderstood what really is to be teased out of this no disadvantage clause. He puts the most favourable possible construction on it which is not really one that is supported by the words at all. So, we deal with that in that fourth section of the submissions and I won't read all that out to you. But we say it is a really significant obstacle. And what we say is that what should have happened is that the learned Senior Deputy President should have taken the kind of approach taken in the Just Cuts case where the Full Bench in circumstances where there was an appeal for a refusal to certify, looked at the particular contentious clause in question, and found that it was sufficiently attended by difficulties and additional detriment placed upon the employee to not come up to the mark sofar as allowing the agreement to pass the no disadvantage test.
PN149
We say that, if any, the so-called voluntary additional hours clause is an even more offensive example of the kind of clause that the Full Bench, incidentally a Full Bench on which the Senior Deputy President was a Member, said the things that it said about that Just Cuts agreement. So, we say that there has been a relevant error for the approach involves the kind of jurisdictional error that we say must be and can be easily identified, but has to be identified if it is to be said that the learned Senior Deputy President failed to exercise his jurisdiction or what he did amounted to a constructive failure to exercise his jurisdiction. Now - - -
PN150
DEPUTY PRESIDENT BLAIN: Mr Nolan, the Senior Deputy President did refer to that in paragraph 9 of his decision. Does your submission take note of that and put the point of view that that consideration there is not sufficient?
PN151
MR NOLAN: Well, what we have endeavoured to say, your Honour, is that to the extent to which the Senior Deputy President says in his assessment the agreement on balance passes the no disadvantage test which is the major conclusion in paragraph 9, he has really failed to engage in the kind of process that I have described earlier. In other words, he has failed to look at section 170XA and say, well, what is really required by this? There has got to be a balancing exercise. And, in fact, strictly speaking, it is wrong, with respect, for the Senior Deputy President to say the agreement on balance passes the no disadvantage test.
PN152
What he has to be satisfied is whether the agreement passes the no disadvantage test which itself requires an exercise that entails the balancing of benefits and detriments. So, one has to, first of all, engage in that. The section 170XA process. One has to weigh up the balances, the detriments and benefits. And make an assessment that is articulated, communicated by the decision to the employee, the employer and anyone else who cares to read the decision in a way that indicates that the Commission has satisfied the test required in section 170XA. And we say that that is not what has occurred and it is certainly not what has occurred in paragraph 9, because what was necessary for that conclusion to be reached, even allowing for the criticism we make of the conclusion, just assuming the conclusion said the agreement passes the no disadvantage test, was an exercise that entailed the consideration in a detailed, analytical way of the benefits and detriments of the agreement as compared with the award.
PN153
And that is not what has occurred, in our submission, with respect, in the decision. And in particular when that was endeavoured to be done in relation to the voluntary overtime so-called clause, it was not done in any way, shape or form that was satisfactory, because it imputed to the no disadvantage clause a significance in operation that it just could not bear. And that can't be extracted from the mix, as it were. That is part and parcel of the decision. And if the decision rested fundamentally on the jurisdictional requirement that section 170XA be met, it can't be said that it came up to the mark in that regard.
PN154
COMMISSIONER LEWIN: Well, could I just ask you this. Is it possible that you could establish that there may have been some intermediate errors in the balancing process yet the appeal could fail based on the conclusion that the agreement may pass the no disadvantage test? And whilst there may have been, and I don't suggest there were, but according to your argument there may have been intermediate errors in the type of procedure which you are saying is required for the purpose of arriving at the necessary conclusion under section 170LT(1). But on any analysis, the conclusion was correct, that the agreement passed the no disadvantage test.
PN155
MR NOLAN: Well, that is a possibility. And, of course, that highlights this distinction between jurisdictional and non-jurisdictional errors. So, I have endeavoured to address that in the submissions in reply, because of course the respondents have said that that is a distinction that needs to be made. You can't say that this decision entails a jurisdictional error. Therefore, you fall foul of the decision in Tweed Valley. Now - - -
PN156
COMMISSIONER LEWIN: But the point that I am making you seem to accept. And that is, that if your argument is valid in the sense that there may be a specific procedure to be adopted by the Commission for the purpose of satisfaction as required by section 170LT(1), even if there were intermediate errors in that procedure, there is no jurisdictional error I should say if on an appropriate objective analysis by appellate review, the conclusion is that the agreement would pass the no disadvantage test.
PN157
MR NOLAN: Well, I would agree with 90 per cent of that. I don't know whether I would agree with the proposition that a procedure adopted by the Commission may well give that result, because there may well be procedural defects which notoriously go to jurisdiction that would be thrown up by that. But let's put that aside for a minute. It is possible to envisage substantive errors, if you like, that could arise in the course of the assessment process being undertaken that might well be characterised as errors within jurisdiction. Now, there are a couple of issues that arise about that, that we get to in these written submissions.
PN158
But it seemed to me, and it is one example of that, there might be an issue where there was a question about, you know, how the overtime clause in the award operated. And there might be a decision made by the Commission along the way in the analysis of that as being a relevant matter to take into account, the balancing exercise that itself reveals some error of law. In other words, you know, it might have been said, well, the overtime was to be paid after 3 hours and it was 2 hours or something like that. There might be a relevant error of law involved there. That could be an error of law that could be - - -
PN159
COMMISSIONER LEWIN: That is a substantive error though, not a procedural one, isn't it?
PN160
MR NOLAN: Yes, yes. Well, that is why I always make that distinction between - - -
PN161
COMMISSIONER LEWIN: Yes, but I was talking about procedural. You've given a description of a procedural approach which you say is required by the legislation.
PN162
PN163
MR NOLAN: Yes. Yes, well - - -
PN164
COMMISSIONER LEWIN: But in order for the Commission to be satisfied that section 170LT(1) has been - - -
PN165
MR NOLAN: Well, perhaps we're at cross purposes. I'm not really saying it is a procedural approach I'm saying it is really a substantive approach in the sense that it requires a - - -
PN166
COMMISSIONER LEWIN: Well, you're saying it is both?
PN167
MR NOLAN: A substantive analysis of the legislative requirements. Perhaps I'm making a too fussy distinction between procedure and substance for the purposes of that exercise, but it goes beyond mere procedure. It is a substantive legal requirement.
PN168
COMMISSIONER LEWIN: No, I understand.
PN169
MR NOLAN: Yes.
PN170
COMMISSIONER LEWIN: What you say is if - well, I'm sure I agree with you. But if, in the circumstances, you say that if in the procedural approach of balancing the agreements benefits and detriments against the benefits of the award there is some error, so a misconception, such as to the legal effect of the award that that, of itself, might ground a successful appeal.
PN171
MR NOLAN: Yes, yes. It might.
PN172
COMMISSIONER LEWIN: Whereas what I was really putting to you is that isn't it an absolute requirement for the appeal to succeed that the appellant body be satisfied that the agreement did not pass the disadvantage test, that the ultimate conclusion was wrong?
PN173
MR NOLAN: Yes, but it could - - -
PN174
COMMISSIONER LEWIN: On your argument?
PN175
MR NOLAN: Yes, but that perhaps raises the kinds of distinctions made in the - well, you know, the Bond case comes to mind, for example. But the ultimate conclusion is determined by reason of a chain of reasoning that rests itself upon the jurisdictional building blocks that are required by section 170XA, if you like.
PN176
COMMISSIONER LEWIN: It is a rather important issue for this appeal.
PN177
MR NOLAN: Well, it is.
PN178
COMMISSIONER LEWIN: Let us say, for example, a member gave consideration to a defined number of comparators of benefit and detriment under an agreement, as compared to the benefits of an award.
PN179
MR NOLAN: Yes, yes. The benefits - sorry?
PN180
COMMISSIONER LEWIN: As compared to the benefits of an award.
PN181
MR NOLAN: Yes.
PN182
COMMISSIONER LEWIN: In the course of the balancing made some errors, some calculation error, for example. But at the end of the day, if the matter was properly and arguably brought on appeal, the appeal bench revisited the conclusion that the agreement passed the no disadvantage test and arrived at the same conclusion, but for different reasons, then would the appeal not fail?
PN183
MR NOLAN: Yes. Well the appeal, of course - - -
PN184
COMMISSIONER LEWIN: Because there had been no error of jurisdiction. Because section 179LT(2) had been satisfied. The procedure by and the intermediate steps taken by the decision maker may have contained errors within the exercise undertaken but that ultimately the appeal could only succeed, on your argument, if section 170LT(2) was not satisfied.
PN185
MR NOLAN: Well perhaps I will make a different distinction. I would have thought in those circumstances we would reach a situation where the Full Bench would have to decide whether it undertook the exercise itself as a separate, discrete legal exercise or whether it sent the matter back to a single member of the Commission. That is one thing. There is a separate issue, it seems to me, where this is thinking of an area or an example where there might be a legal error committed by the Commission at first instance. Which whilst having been committed does not amount to a jurisdictional error. In other words, an error - - -
PN186
COMMISSIONER LEWIN: It is an intermediate error.
PN187
MR NOLAN: Yes, well but I understood that to be a little different from the example that you were quoting. In those circumstances I would have thought the Full Bench could simply say, well look, there is no constructive failure to exercise jurisdiction because all the other legal tests have been met. And so that would be the end of the matter, not withstanding the fact that the bench might say, well we might have taken a different view about the issue of overtime in the way it applied with particular cases.
PN188
COMMISSIONER LEWIN: Yes, we are talking at cross purposes.
PN189
MR NOLAN: Perhaps we are, yes.
PN190
COMMISSIONER LEWIN: What I am suggesting to you, which I think is rather critical to this appeal.
PN191
MR NOLAN: Yes.
PN192
COMMISSIONER LEWIN: Is, I am suggesting to you for consideration in arguendo. But the appeal can't succeed unless the Bench is satisfied that the agreement did not pass the no disadvantage test, i.e., there can be no jurisdictional error if the agreement did pass the no disadvantage test regardless of the procedure adopted at first instance or the conclusions reached there.
PN193
MR NOLAN: Yes, well I do not disagree with that. I do not disagree with that.
PN194
COMMISSIONER LEWIN: Thank you. That is the question that I was putting to you.
PN195
MR NOLAN: Sorry. Yes.
PN196
COMMISSIONER LEWIN: I probably didn't put it as clearly at that.
PN197
MR NOLAN: Yes, well I perhaps was concentrating on this other distinction between jurisdictional and non jurisdictional error but it seems to me it would be difficult for the Bench to reach that conclusion unless it had before it all of the sorts of material or the kind of material that I always said was necessary for the Senior Deputy President, and, it engaged in the sort of analysis that I said the Senior Deputy President should have engaged in. But can I turn to the submissions in reply.
PN198
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN199
THE DEPUTY PRESIDENT: Just before you do, Mr Nolan, if I can ask you, are you suggesting that a re-hearing would be necessary in that circumstance?
PN200
MR NOLAN: That is right. A re-hearing or more what is preferable is that the Full Bench would send it back to the original Member or give it to another Member of the Bench to deal with afresh, as it were. It would be particularly difficult in these circumstances for the Bench to re-make the decision that was made at first instance. Not impossible but - - -
PN201
THE DEPUTY PRESIDENT: Does that go a further step, being that the Bench would not be in a position to determine whether or not the agreement had met the no disadvantage test in first instance?
PN202
MR NOLAN: No, my argument is that the Bench is perfectly equipped to make a decision about whether or not the agreement met the no disadvantage test because it has the benefit of the analysis of the Senior Deputy President's reasons contained in the Senior Deputy President's reasons. Really, that question it seems to me comes to what the appropriate course is for the Bench to take after that if that case is made out, if the appeal is made out. In my submission, the Bench is not in a position ideally to make the kind of decision that should have been made at first instance. Simply because all of the issues that should have been ventilated before the Senior Deputy President are not necessarily before the Bench and that there are other issues, indeed, that as I have said, should have been inquired into by the Senior Deputy President and weren't. It should have been the subject of findings and weren't and the Full Bench as presently constituted is not ideally in a position to make a decision about those issues.
PN203
THE DEPUTY PRESIDENT: Thank you, Mr Nolan.
PN204
SENIOR DEPUTY PRESIDENT WATSON: A complication arises in that respect, does it not, Mr Nolan, in that the no disadvantage test is a test applied in a contemporary sense at the time of certification.
PN205
MR NOLAN: Well that is true.
PN206
SENIOR DEPUTY PRESIDENT WATSON: And any later certification would, dependant upon the date of application of any award rate increases, involve a different or award rate?
PN207
MR NOLAN: Well that may well be right but I would have to look at the provision of the Act but perhaps I am wrong about this but it may well be that the date of the application has some relevance for the determination of the Commission. But you might be right about that. It may well be that that could be something that might occur simply by delays in the Commission's listing processes in any event. I mean, there is a time limit on the parties to get an application filed but as I understand it, there is no time limit on the Commission to deal with an application. So, it may well be that the week after the application is filed a National Wage Case comes down and changes the award. I mean, that is just the luck of the draw it seems to me.
PN208
Now, in the supplementary submissions, I first of all endeavour to deal with this question of standing to appeal. It seems to us that the union, having standing in the proceeding before the Senior Deputy President, by reason of its position and section 43, must necessarily be incompetent appellant if the proceeding that was dealt with below was one to which it was a proper intervener, admitted as an intervener and it may be in circumstances where there was an issue its intervention that itself would be, one would think, a likely topic of appeal. But it seems to me, having satisfied the requirements of section 43(2) the organisation is regularly before the Commission at first instance and necessarily, it can be an appellant in the absence of some statutory provision that some how other precludes it being an appellant when the matter comes to be appealed.
PN209
Now, it seems that there is no such provision. It seems that the only possibly objection to the union taking the sort of stand that it is taking, is the one adverted to by Senior Deputy President Lacy in that Robe River decision where he said, oh well, the union should not be approbating and reprobating. But with respect, that seems to be entirely the wrong approach to take. It is certainly not one binding on this Full Bench. Entirely the wrong approach to take to questions of jurisdiction or you can't approbate, reprobate about jurisdiction.
PN210
And equally, the union is in a position legitimately to say, look, if this agreement is a valid agreement, we want to be made a party to it. There are advantages to the union by being made a party to it. But equally, it seems to me it is in a position to say, well, look, there are none the less issues about the certifiability about this agreement but if the Commission decides at the end of the day that it is certifiable, well we will put out hand up, we want to be a party, thank you very much.
PN211
There is nothing at all in section 43 that prevents the union from raising such matters in a certification proceeding. And it seems to me the only thing that might tell against it is those - I'm sorry, that expression of opinion in the Robe River decision talks about approbating and reprobating but as I have indicated, that particular legal doctrine, as much as it is a legal doctrine, really can play no part in an issue of the determination of jurisdiction because in the same way that you can't confer jurisdiction on the Commission expect now perhaps by recourse to section 170LW, but putting that aside, the parties can't confer by agreement jurisdiction on the Commission. Nor can they withhold by agreement.
PN212
COMMISSIONER LEWIN: Except under the defined statutory circumstances.
PN213
MR NOLAN: Yes. That is right. So they are entitled to come along and say, in my submission, we have some real doubts about this. We don't think you can make this agreement. But if you at the end of the day think you can make the agreement, we are entitled to be made a party to it and we want to be, thank you very much. Because that will have some benefits for the union and its members. Now the relevant entree point, if you like, in so far as the standing of it is concerned is, the existence of certificate under section 291A, given to a Member to allow the union to appear in the 170LK process and as an intervener in the certification proceedings. And so that - - -
PN214
SENIOR DEPUTY PRESIDENT WATSON: Unlike the Mervac case, you were involved in, I think, also, that certificate was sought and granted prior to the approval of the agreement by a valid majority of employees, in this particular case.
PN215
MR NOLAN: Yes. Yes, I think that in the Mervac case it was a matter of timing, wasn't it?
PN216
SENIOR DEPUTY PRESIDENT WATSON: Yes, that is right.
PN217
MR NOLAN: They had reached agreement before the certificate had been issued, I think.
PN218
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN219
MR NOLAN: But that was not a - - -
PN220
SENIOR DEPUTY PRESIDENT WATSON: Yes, that is correct and that does not apply in these circumstances of this case.
PN221
MR NOLAN: That was what tripped up the union back then. But that did not apply here, the union was accepted as an intervener, indeed properly so, it may be said. And that being the only brake on, or the only restriction of qualification upon standing, well, one looks to see whether that is satisfied or not satisfied. And that has been satisfied in this case. I mean, apart from that, the ordinary rules, with respect to standing that are set out in the Tweed Valley case, apply. And so there is no additional restriction on a union who has been granted intervention under section 43 becoming an appellant and appearing in appeal proceedings.
PN222
And we say that there is nothing to suggest that there is restrictional qualification upon the union if, all other things being equal, it beats the description of being a person aggrieved, as an appellant; and it must be if it was, we say, as a matter of logic if it was entitled to appear below as an intervener as it is statutory and entitled to do. It might be a different position, of course, if the Mervac case was one such example . But this is not a Mervac case at all.
PN223
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN224
MR NOLAN: So we say that the standing requirement is satisfied. Now, the balance of this submission deals with this question of jurisdictional error.
PN225
THE DEPUTY PRESIDENT: Mr Nolan, in relation to that point.
PN226
MR NOLAN: Yes.
PN227
THE DEPUTY PRESIDENT: Is it your submission that 45(3) would give a basis for an intervener to appear in an appeal?
PN228
MR NOLAN: I am sorry, your Honour, could you just say that again, please?
PN229
THE DEPUTY PRESIDENT: Yes, sorry. Section 45 subsection 3 of the Act.
PN230
MR NOLAN: Yes.
PN231
THE DEPUTY PRESIDENT: Is it your submission that that would give power to support that submission you just made in relation to an intervener?
PN232
MR NOLAN: Yes, 45(3) certainly does it. I am just looking at 45(3)(c) or 45(3)(d) perhaps. But given that the appeal is taken under 45(1)(g), a decision of a Member of the Commission that the Member has jurisdiction or refusal or failure for a Member of the Commission to exercise jurisdiction in the matter arising under this Act. It seems to me that one then looks at (3)(d) and (d) really deals with out situation because it is not one of the other articulated subsections of 45(3). So it is 45(3)(d), your Honour.
PN233
THE DEPUTY PRESIDENT: Is it your submission that (3)(bab) does not apply?
PN234
MR NOLAN: I think (bab) refers to the refusal to certify, does it not, I mean, I might be mistaken.
PN235
SENIOR DEPUTY PRESIDENT WATSON: Yes, I think that is right.
PN236
MR NOLAN: I think it is a refusal to certify, (bab). There is a specific ground in 45(3) that deals with a refusal to certify and so if the Commission were to refuse to certify the agreement, the persons who are set out in (bab) would have standing to appeal. If on the other hand, in this case, there is an allegation about a constructive failure to exercise jurisdiction, that arises under 45(1)(g), well then, 45(3)(d) comes into play and all we have to satisfy is that we are an organisation or person aggrieved by the decision or Act concerned to satisfy that requirement.
PN237
The best place to see that test examined is in the Tweed Valley decision and I have given the reference there tot he Tweed Valley decision. And so, applying those conventional legal standards of person aggrieved, we say the union satisfies the test.
PN238
THE DEPUTY PRESIDENT: Thank you, Mr Nolan.
PN239
MR NOLAN: Now, as I have indicated, section 2 of these submissions really deals with this issue that we already have touched upon, and that is, whether or not what was done by the Senior Deputy President amounts to a jurisdictional error. In other words, was it a, as we have just said, in relation to 45(1)(g), a decision that amounted to a refusal or failure of a Member of the Commission to exercise jurisdiction. The respondent has directed submissions to this issue and we have attempted to meet those in these written submissions.
PN240
The way it has been approached is that a comparison with what occurred in Tweed Valley is a useful exercise to ascertain whether or not the relevant kind of errors occurred here and reference has been made by the respondent to those two New South Wales cases, Walker and Industrial Court in Rothmans and the Industrial Court and I have endeavoured to consider those. And over at paragraph 2.3 after re-stating the section again, I have gone back to this issue about the contrast between impression and judgment on the one hand and what is strictly required by the bounds of the section on the other. And we have sought to contrast the kinds of considerations considered in Walker and Rothman and the position here and the position in Tweed Valley.
PN241
I have set out the section of the previous Act that dealt with the equivalent of the no disadvantage test, section 170NC(1) and NC(2)(b) in section 2.4 of the submissions. And the test there of course was whether the approval or implementation of the agreement would result in a reduction of any entitlements or protections and whether in the context of the terms and conditions of employment considered as a whole, the Commission considers that the reduction is contrary to the public interest. Now, it was said by, in particular, Wilcox and Marsh JJ, and I have set that out there that there was a relevant error in Commissioner Redmond's decision which amounted to a failure to exercise his jurisdiction.
PN242
And it ought to be noted that it was not because the Commissioner had indicated he was completely oblivious to the statutory test at 2.6, I point that out at 76.6. In fact, Commissioner Redmond specifically referred to section 170NC(2), the public interest requirement, along the way of his consideration in the no disadvantage test as it then existed. But clearly, as the decision in Tweed Valley indicated, a lot more was required than the simple recitation of the sections of the Act to which reference had to be made for the test to be satisfied. And we say equally in this case, of course, that analysis of the extent to which the benefits were offset by detriments was that essential requirement to the - of the exercise, that should read, of the jurisdiction.
PN243
Now, we say arguably, in fact, the requirement of the assessment must be made on balance requires more, not less attention, to the specific agreement equivalent award provisions as compared to the 1988 Acts tests, that had what might be regarded as a more global approach and invoke the reduction being contrary - or not contrary to the public interest. But that does not need to be, the whole thing does not turn on that but that is an observation along the way.
PN244
Now, Moore J in Tweed Valley, and I have given you the references here, decided that the statutory test required just that kind of articulated and detailed comparison of the provisions, in this case, the sick leave provisions, and the comparable sick leave provisions in the award, the agreement. And I have given you there the passages where that analysis is undertaken. And so we read his decision as requiring that the satisfaction of the old statutory test meant that a tangible analysis of the benefits of detriments concerned had to be engaged in. And we say that in our case, the voluntary overtime clause in this agreement is a more agreed as an example of detriment than the one that his Honour, Moore J, pointed to in Tweed Valley in the case of the sick leave.
PN245
So, we then turn to this issue of distinction again between jurisdictional error and non-jurisdictional error and we make these observations of when one looks at the decisions in Walker and Rothmans, and in particular the one in Walker, which is the major of those two decisions, one immediately sees the contrast between 170XA which requires a specific and tangible balancing exercise that I have referred to already and the generalised legal test of unfairness applied in the New South Wales unfair contracts cases which are Walker and Rothmans.
PN246
And we say that there is no proper comparison at all with the unfair contracts cases. It is the test required in each case are completely different. One provides as a condition of jurisdiction, that is to say, 170XA, where as the other requires only a broad measure of unfairness has to be met. Now we also note in this connection that there is a distinction that is really not thrown up by anything said in the case itself nor by what is said in Tweed Valley between the approach taken by a superior court to another court which enjoys the status of the Superior Court of Record, albeit with limited jurisdiction such as the New South Wales Industrial Court as it then was known.
PN247
And that involves a significant degree of latitude compared with the approach taken, I am sorry to say to you as Members of the Commission, to Members of the Commission which what ever its other virtues does not enjoy the status of being a Superior Court of Record would. And a good illustration of the distinction, although it is not one that is articulated in this case, is to be found in the discussion by Moore J of this very issue in Tweed Valley.
PN248
One looks at Scheller Js judgment in Walker and Kirby's judgment, although it was a dissenting judgment, still deals with this issue, page 138; compare that with what Moore J says at page 96.2 in Tweed Valley where Moore J points to the more usual case in the Commission exercising its jurisdiction is this issue of the determination of the scope of eligibility rules when one comes to determine an industrial dispute and how the High Court of the case, he mentions ..... case and he talks about the history of this particular provision, 45(1)(g) finding its way into the Act.
PN249
But in that connection the High Court in its supervisory jurisdiction of the Commission identifying jurisdictional error, as being remorseless, one might say in the way it has put itself in the shoes of the Commission to make decisions about the scope of eligibility rules. Which ordinarily one would have thought as a matter where a significant degree of latitude could be allowed to the Commission, compared with the kinds of issues that are discussed in Walker by Scheller and Kirby. In other words, there will be a good deal of latitude given to a Superior Court of Record to make decisions about the metes and bounds of its jurisdiction. Where as with the Commission, there will be a more cut and dried exercise where the appellants court, particularly the High Court has usually had no compunction about standing in the shoes of the decision maker to make decisions that go to jurisdiction.
PN250
COMMISSIONER LEWIN: That might be the prerogative of the High Court though.
PN251
MR NOLAN: Well the Federal Court has been just as ruthless, it has to be said.
PN252
COMMISSIONER LEWIN: On matters delegated, perhaps.
PN253
MR NOLAN: Yes, but I do not know that that is a - - -
PN254
COMMISSIONER LEWIN: Or refer to remitted. I am not quite sure of the terminology.
PN255
MR NOLAN: I don't know that they are all that sensitive about that distinction, Commissioner. But that gives you a good guide to exactly what approach is taken of the metes and bounds of jurisdictional error when committed by the Commission compared to the much more hands off approach taken by the, at least, the majority of the Members of the Court of Appeal to the decisions in Walker and in Rothman. And that is an instructive distinction to keep steadily in mind when one looks to the metes and bounds of the identification of jurisdictional error in a case like this. And so one looks at Walker and that passage in Walker at 155.2 is, in our submission, especially useful because it not only talks about this distinction where it says:
PN256
The majority of the decision, even if erroneous, is not one made without the authority or beyond the authority of the Industrial Court in determining the appeal under section 297(2)(d) of the Act.
PN257
They said they understood the nature of the jurisdiction they had to exercise, it is not enough that the Industrial Court erred in law in making its decision. Or when one comes to see the precise issues involved there, the general legal test of unfairness had to be assessed and the Members of the Court, although they said they were constrained from doing so by reason of the probative clause of the State Act, said that they would have taken a different view about the issue of the compounded treatment of Walker and other employees who were made redundant. And they say however that, "The error of the Industrial Court," - this is over at page 154 at the top of the page:
PN258
...which is relied on is not related to the nature or extent of the jurisdiction of the Commission in not attaching sufficient weight to the claim its argument that the contract was unfair because it permitted him to be dismissed unfairly. The Full Industrial Court in exercising its jurisdiction to reach conclusions about relevant questions of fact and law, made an error, the Court was exercising jurisdiction to hear and determine an appeal...
PN259
and so on and then Scheller J reaches that conclusion that he thought that:
PN260
...the majority did not give sufficient weight to the claim. Its argument that the contract was unfair because it permitted Huspin to conduct itself as it did, that the majority decision, even if erroneous was not one made without authority.
PN261
Well, with respect to his Honour, that hardly even gets up to the mark of identifying the relevant error as a legal error of a Peko Wallsend kind or a jurisdictional error, let alone jurisdictional error. It seems to rather suggest that on an all grounds appeal, the Full Court would have taken a different view of the legal test. Now, we say that that has no work to do with this particular case because this case involves the strict metes and bounds of section 170XA, as I have already said.
PN262
So we say that there is room for a real distinction to be made between the Walker and Huspin type case in that line of territory in the statutory provisions there under consideration. And the issue of section 170XA, and of course overlaying on that of course is this distinction made between the latitude given to a Superior Court of Record and the approach taken to ride herd on a quasi judicial tribunal, if I can put it that way. So, we say that the conclusion from all of this is that having regard to what his Honour did and looking at his reasons, that he approached the matter as a relatively unstructured discretion, which we say, was wrong.
PN263
We say therefore that his conclusions were wrong, that they were affected by an error of law and that error is an error of the kind that attracts appellant review in accordance with the accepted authorities. And it is not a non jurisdictional error of the kind, and I have given an example of the kind of issue that might arise that I think would be regarded as a non jurisdictional error. But this goes to the heart of the application of the legal test which is a mandatory requirement.
PN264
And in those circumstances it is in exactly the same category as the decision of Commissioner Redmond which was the subject of a challenge in the Tweed Valley case and it fails. It is only a purported attempt to exercise the jurisdiction which attempt is carried because it failed to come to grips with the strict requirements of the no disadvantage test. Now, there was one other authority that I came across that I forgot to put in the - - -
PN265
THE DEPUTY PRESIDENT: Mr Nolan, can you just clarify, what specifically was the error in law that you referred to?
PN266
MR NOLAN: The error in law?
PN267
THE DEPUTY PRESIDENT: If you could just clarify that?
PN268
MR NOLAN: Yes. The error in law was the failure to apply section 170XA, which is required to be applied by 170LT(2). And the error of law is that 170XA required an exercise to be undertaken that articulated the basis upon which the reduction in overall terms and conditions of employment had not occurred. And that required a balancing of what can only be concluded as the benefits and detriments of the award as against the agreement. That was a specific legal requirement that has to be followed, thanks to section 170XA, that was not in terms followed by the Senior Deputy President because he had not descended to the level of analysis necessary to allow him to satisfy that statutory requirement.
PN269
It is not something that could be satisfied by recourse to generalise the impressions of fairness and passing impressions of benefit and detriment. It required a tangible and discrete and specific analysis of the agreement of an award and an ascertainment of the benefits and detriments entailed in both.
PN270
THE DEPUTY PRESIDENT: Mr Nolan, in paragraph 9 of the decision of Senior Deputy President Polites, the first sentence he says he has, "...considered all of the matters put."
PN271
MR NOLAN: Yes.
PN272
THE DEPUTY PRESIDENT: And not without a degree of difficulty he has concluded that:
PN273
...the agreement on balance passes the no disadvantage test.
PN274
MR NOLAN: Yes.
PN275
THE DEPUTY PRESIDENT: Is that the specific sentence or part of his decision that you are attacking as being the basis of this legal error that you have identified?
PN276
MR NOLAN: Well that really is the crystallisation of his conclusions and we say that that is not sufficient without proper explanation and elaboration in the same way that any quasi judicial tribunal these days is required to analyse the evidence and make findings of fact about the evidence before it that is relevant to its decision. And also, to pass upon the questions of law that bear on the statutory requirement imposed upon it. It is not sufficient, we say, simply to roll it all up by saying: well, I have had a look at all of this and I am happy to accept the evidence of Bloggs, I have made by decision.
PN277
That is not what these days is regarded as sufficient and indeed, it is an echo, if you like, of the kind of generalised conclusions that Commissioner Redmond made back in the Tweed Valley case that led to the challenge of his decision. Because as I said, it was not as though he did not refer to section 170NC(2). He did.
PN278
So it could not be said that he was not alive to the requirement that section 170N(2) had some part to play. But what he did not do was, he did not go and apply section 170N(2) to the facts as found and likewise in this case my contention is that he saw the hazard, looked at section 170XA and teased out what was really required, the exercise that was necessarily required to satisfy the requirements of the exercise of the jurisdiction. It wasn't enough to do it in a shorthand way by conveying some sort of impression or opinion or intuition to use Commissioner Lewin's term that the thing passed the no disadvantage test, so it might be, I suppose it's you know, what they used to say about art criticism: I don't know much about art, but I know what I like.
PN279
Well here, regardless of the expertise which is unquestionably the requirement that the Commission must, members of the Commission must show, they have got to do more than say: having regard to my expertise in this matter, I am satisfied that everything is all right. There is a statutory obligation on them to articulate why it is that the statutory test has been met.
PN280
SENIOR DEPUTY PRESIDENT WATSON: Thank you Mr Nolan, thank you. That answers my question, yes.
PN281
MR NOLAN: Thanks. That final point of - this question of jurisdictional error, could I just give you a reference to one other decision. This is a decision of the Full Court, Federal Court, and it is Blagojevch it think it is, B-l-a-g-o-j-e-v-c-h v The Australian Industrial Relations Commission, and it is at 2098 IR, page 32, and it is a decision of the Full Court of Moore, Marshall JJ and the Late Lehane J - - -
PN282
MR LE MIERE: You mean 1998?
PN283
MR NOLAN: 2098 IR, sorry.
PN284
SENIOR DEPUTY PRESIDENT WATSON: I seem to recall that decision Mr Nolan.
PN285
MR NOLAN: Oh, so you were there, yes. I remember Cripps on the Court of Appeal in similar circumstances, saying: I was President of the Land And Environment Court then, I think I got a silver in that decision of the Court of Appeal. But the fact of the matter is, this issue of jurisdictional error comes up again of course and I simply refer to this for the purposes of alerting you to that part of the joint judgment of Marshall and Lehane JJ that deals with jurisdictional error, in this decision it is simply paragraphs 39 and 40. So unless there are some other questions, those are the submissions of the appellant.
PN286
SENIOR DEPUTY PRESIDENT WATSON: Just one minute, Mr Nolan, are there any beneficial provisions, more beneficial provisions, in the agreement, in the context of undertaking that balancing exercise?
PN287
MR NOLAN: Well, that seemed to have emerged from the discussion and that are apparent in the face of the reasons it seems to me, and so - - -
PN288
SENIOR DEPUTY PRESIDENT WATSON: I note the statutory declaration does not answer that question, 6.4: any specific reductions or improvements.
PN289
MR NOLAN: Well, we say that there aren't any, but it would be necessary of course, on our argument, for that to be apparent, in the reasons of the Senior Deputy President.
PN290
SENIOR DEPUTY PRESIDENT WATSON: Yes, I note the statutory declaration also referred in the earlier question, the answer to the on balance question 6.3, said it would not result in the reduction and referred to the decision of transcript before Senior Deputy President Lacy. That seems to have identified, as a superior provision, a proposed 24-hour rotational roster, did that appear in the agreement before Senior Deputy President Polites.
PN291
MR NOLAN: I assume it must have but I can't answer that question for, do you know?
PN292
SENIOR DEPUTY PRESIDENT WATSON: But you say it wasn't dealt with by the Senior Deputy President in his balancing act?
PN293
MR NOLAN: It had to be dealt with.
PN294
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN295
MR NOLAN: I mean one can't engage in guess work about this, on my submission, it needs to be articulated.
PN296
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, Mr Nolan.
PN297
COMMISSIONER LEWIN: No, I am sorry, I just wanted to ask one question. When one looks at section 45, Mr Nolan, subparagraph (eaa), ought to attract some comment I would have thought in relation to the appeal. I mean I understand precisely that the appeal is made on the ground that it is competent for the union to do so under subparagraph (g), but what will be advanced against you is that it was not a failure to exercise jurisdiction, or there was no decision to exercise, or not to exercise jurisdiction or no decision that the member had or did not have jurisdiction such as is the subject matter of subparagraph (g) but rather there was a decision to certify the agreement.
PN298
And that therefore, it seems that one of the issues that we will have to address, anticipating what Mr Le Miere will say to us in support of the submissions already contained in the written outline, is that this is a decision to certify an agreement. Now I appreciate your argument, what you say is, I gather that subparagraph (g) should not be read down by that reference, but I think perhaps you might comment upon it because I don't think it is in your written submissions, is it?
PN299
MR NOLAN: No, it is not. I am just reminding myself about 170LU(2)(a) in the Victimisation Provisions.
PN300
COMMISSIONER LEWIN: We have to accept your characterisation for you to rely on subparagraph (g) don't we?
PN301
MR NOLAN: That is right.
PN302
COMMISSIONER LEWIN: To do so we need to look at the appeal provisions of the Act and ask whether or not we would be correct to characterise the decision that way. I understand your argument is that any decision that the agreement passes the no disadvantage test is a jurisdictional conclusion. However, there is a bit of tension in section 45, is there not about this?
PN303
MR NOLAN: Look, I don't think there is in this regard and I will tell you why. If you look at (ba), 45(3)(ba), you see there that in the case of an appeal under paragraph (1)(eea) which is the provision we were looking at - sorry, is that the same one that I have got?
PN304
COMMISSIONER LEWIN: Subparagraph (eaa).
PN305
MR NOLAN: (eaa). Just bear with me for a second. But there is no subparagraph (1)(eea).
PN306
MR LE MIERE: (eaa).
PN307
MR NOLAN: It is (eaa).
PN308
COMMISSIONER LEWIN: (eaa). Yes, that is what I am directing your attention to.
PN309
MR NOLAN: Yes, but I was looking over at paragraph (3), 45(3). This is:
PN310
The appeal under subsection (1) may be instituted - - -
PN311
COMMISSIONER LEWIN: Yes, but that just identifies the party that can institute, does it not?
PN312
MR NOLAN: Yes, (ba). It says, "In the case of an appeal under paragraph (1)(eea)" - I think that must be a misprint.
PN313
SENIOR DEPUTY PRESIDENT WATSON: I expect it is a misprint.
PN314
MR NOLAN: Yes, because if you look at that, if you look at those who could institute the appeal, it gives a specific right to institute an appeal in the employment advocate. But of course (eaa) relates to the Part XA matters, you see. So that if you have got an agreement between parties that says everybody has got to be in the union, this gives a statutory right to the employment advocate to institute an appeal against that decision, so it seems to have a particular job to do, but notwithstanding the apparent typographical error. So I think that answers your - - -
PN315
COMMISSIONER LEWIN: Well, if you are right, and it is a typographical error and I suppose we may have to take the matter up with CCH.
PN316
MR NOLAN: Yes. Well not just CCH, I have got the Commonwealth thing here, it seems to be reproduced, but given that there is no sub-paragraph - - -
PN317
SENIOR DEPUTY PRESIDENT WATSON: Perhaps we might try the Commission version on the internet.
PN318
MR NOLAN: Yes, given that there is no paragraph (1)(eea), and given the subject matter of (eaa), 45 (1)(eaa), it must be intended to - - -
PN319
COMMISSIONER LEWIN: Yes, yes, all right, thank you. I am sorry, I must admit I did not go past the convolution of the (eea) and (eaa), I merely looked at the provision once I could see that it was - - -
PN320
MR NOLAN: I knew there was an answer to that question, I just hadn't thought about it for a while, but I think there's been, I think there have been a couple of appeals of that kind too, haven't there, against agreements that are said to offend the Freedom of Association provisions.
PN321
COMMISSIONER LEWIN: It does not make any sense the way it is published. The proof reader has obviously made a mistake there, because somewhere - - -
PN322
MR NOLAN: The surprising thing is that mistakes like that are as rare as they are, really.
PN323
COMMISSIONER LEWIN: Very well, thank you Mr Nolan.
PN324
MR NOLAN: So yes, may it please the Bench.
PN325
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you Mr Nolan. Mr Le Miere?
PN326
MR LE MIERE: If it please the Full Bench. Briefly, on the question of standing. We submit that the appellant has no standing to bring the appeal because it is not, in terms of section 45(3)(d), an organisation aggrieved by the decision or Act concerned. It is not an organisation aggrieved by the decision or Act concerned because the appellant gave notice that it wished to be bound by the agreement. It gave that notice to the Commission prior to the hearing of the application and maintained that position, did not withdraw its application that it wished to be bound by the agreement. An organisation that wishes to be bound by an agreement, in our submission, cannot be aggrieved by the agreement being certified.
PN327
In that sense, it is analogous to the doctrine of approbating and reprobating. But more directly, it is as simple as, it wishes to be bound by the agreement.
PN328
SENIOR DEPUTY PRESIDENT WATSON: Would you say on the same principle that a party in a dispute notification which objected to a dispute finding but a finding was made nonetheless, but objected on the basis that if a dispute is found the award should be made in these terms rather than these other terms, would have no basis for appeal in respect of the dispute finding?
PN329
MR LE MIERE: No, your Honour, in a case where there is a dispute as to a dispute finding, then the party is entitled to be heard in relation to that, if it's otherwise entitled to be heard. The Commission then seized with the matter then deals with and settles with that dispute and the party is entitled to come and put its submission as to how the matter might be resolved. But this is a quite different matter. This is a situation where prior to the matter coming before the Commission, the party, in this case the appellant, gives notice that it wishes to be a party to the agreement. And that, of course, has statutory consequences that if approved it becomes a party to the agreement and has the rights which flow from that.
PN330
And it is in that sense that it can't approbate and reprobate. It can't on the one hand submit to the Commission that it wishes to be a party to the agreement, that it meets the requirements under section 170M(3)(d) and should be made a party to the agreement and have the rights which are consequential upon being made a party to the agreement, and at the same time seek to say to the Commission that the agreement ought not, indeed cannot be, certified. Indeed, the submission which the appellant made to the Commission and repeats to the Full Bench is that the Commission could not certify the agreement because, as it is put by the appellant, it does not have jurisdiction to do so. Now, that is - - -
PN331
SENIOR DEPUTY PRESIDENT WATSON: So, your submission is, in effect, the organisation is required to make an election to either oppose or seek to be bound as a party to an agreement?
PN332
MR LE MIERE: Yes. And we say that that is consistent with the scheme of the Act in relation to intervention which - and my learned friend has referred to the authorities we cite in the outline which we put forward, we would submit, the proper construction of section 42. I beg your pardon, 43(2). And that is, that you can't intervene both under paragraph (a) and paragraph (b). And if you are a party who wishes to be bound by the agreement, you may intervene under paragraph (b). And that, of course, is for the purpose of satisfying the requirements of section 170M(3)(d). And you cannot both at the same time intervene on that basis and intervene at the same time on the basis that there is no jurisdiction to approve the - certify the agreement.
PN333
And we say that, that scheme in relation to intervention is consistent with the submission we have put to the Full Bench in relation to the appeal or right of appeal or lack of a right of appeal.
PN334
SENIOR DEPUTY PRESIDENT WATSON: It has been found by Senior Deputy President Williams that a party has a general right to intervene as to jurisdiction in respect of matters of these kinds, pursuant to section 42 rather than 43.
PN335
MR LE MIERE: Yes. Absent the parties - - -
PN336
SENIOR DEPUTY PRESIDENT WATSON: To argue the absence of jurisdiction.
PN337
MR LE MIERE: Yes, that is quite a different situation. Our submission is particular to the situation where the party has given notice that it wishes to be bound by the agreement. That is the fact on which the - matter on which we rely in this case. That is the proposition in a nutshell, if it pleases the Full Bench.
PN338
COMMISSIONER LEWIN: Could you just elaborate that a little bit. If it was to be inferred from the way in which the ALHMWU presented itself to the Commission at the hearing for the certification that the nature of what was put was that it wished to be bound by the agreement if the agreement passed the no disadvantage test.
PN339
MR LE MIERE: Yes. Yes, I appreciate that.
PN340
COMMISSIONER LEWIN: But that it was of the view that the agreement did not pass the no disadvantage test, but that was a matter for the Commission, both sitting alone and, in the view of the ALHMWU, potentially on appeal.
PN341
MR LE MIERE: Yes. We accept, Commissioner, that the advocate for the appellant did say that before the Commission. But the position is that the appellant had given notice on 3 April, had given notice in writing, to the Commission - and I assume this is in the file that is before the Members of the Full Bench. On 3 April the now appellant gave notice to the Commission that it requests that under section 170M of the Act it be made a party bound to the agreement. And it seeks to be bound to the agreement in accordance with the provisions of 170M(3)(c) and (d). Now, it did not withdraw, in our submission, from that position before the Senior Deputy President. I appreciate, as the Commissioner has pointed out to me, that it sought to finesse the situation.
PN342
COMMISSIONER LEWIN: Or to make that statement conditional.
PN343
MR LE MIERE: Yes, in a sense, that was the way in which it was put. But in our submission, there is no room for - - -
PN344
COMMISSIONER LEWIN: There is no room for that.
PN345
MR LE MIERE: - - - a conditional statement. You either do or you don't.
PN346
SENIOR DEPUTY PRESIDENT WATSON: The sequence seem to be the union indicated its intention to intervene generally as an organisation meeting the requirements of 43(2)(a) - - -
PN347
MR LE MIERE: Yes.
PN348
SENIOR DEPUTY PRESIDENT WATSON: - - - on 2 April. And on 7 April they then indicated advice of its intent to be bound to the agreement.
PN349
MR LE MIERE: I am sorry, your Honour, when your Honour is referring to the 1st - - -
PN350
SENIOR DEPUTY PRESIDENT WATSON: 1 of April - 2 April is the letter in respect to intervention based on the 291A certificate, and 7 April is the letter - - -
PN351
MR LE MIERE: I have to confess to the Full Bench that I have not seen - am not aware of that letter.
PN352
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN353
MR LE MIERE: I must proceed then on the basis that they did indeed seek to do both. And I think that is consistent with the oral submissions that were put on behalf of the union on 8 April. And that comes back to the position we are putting that you can't do both. And that - - -
PN354
SENIOR DEPUTY PRESIDENT WATSON: Well, which were they doing in the end? They weren't asked to elect - the Senior Deputy President seems to not have resolved the question of intervention.
PN355
MR LE MIERE: No. The Senior Deputy President expressed that he had doubts whether they could do what they were doing but didn't resolve the matter.
PN356
SENIOR DEPUTY PRESIDENT WATSON: Yes. So, we don't know on which basis they were appearing?
PN357
MR LE MIERE: No, because - sorry, your Honour. What the Senior Deputy President, we would beg at the risk of over-glossing what he said, was to the effect that he had to be satisfied that the agreement passed the no disadvantage test. And, in effect, it would be of benefit to him to hear what they had to say in any event. So, he let them make their submissions and say what they had to say. And he proceeded on that basis. But our submission is that it doesn't matter on what basis the Senior Deputy President proceeded. It doesn't matter if, in our submission, erroneously the Senior Deputy President permitted intervention under both paragraph (a) and paragraph (b), more generally.
PN358
Our submission is confined to the proposition that where a party has given notice that they wish to be made a party to an agreement, where they maintain that position before the Commission, and where they seek to do that, then it is not open to them to take a contrary position at the same time. Now, election in a sense is one way that one might address it in practice at the hearing. But it is not a question of election strictly, when one looks at the matter after the event. The point is that they had made the application. They maintained it. So, that the position then and now is that they wished to be bound by the agreement, applied to be a party to, and bound by the agreement. And in our submission whatever else they may have sought to do, they cannot be aggrieved by reason of the agreement not being certified.
PN359
COMMISSIONER LEWIN: Does it follow from that, that it is necessary for an organisation making an election to reach its own conclusion as to whether or not the agreement passes the no disadvantage test in order to be bound or not to be bound?
PN360
MR LE MIERE: In a practical sense, I think that probably follows.
PN361
COMMISSIONER LEWIN: And it can't then proceed on the unspoken assumption that any election to be bound is an election to be bound by an agreement fit for certification?
PN362
MR LE MIERE: I am sorry, Commissioner, I missed the last - - -
PN363
COMMISSIONER LEWIN: It can't proceed on the assumption that any election to be bound is an election to be bound by an agreement fit for certification in accordance with the legislation? It is an election to be bound by the agreement, whether it be fit or not fit for certification?
PN364
MR LE MIERE: I think that that follows from the submissions we make. It is a consequence of the position we put. I turn - - - refill.
PN365
DEPUTY PRESIDENT BLAIN: Mr Le Miere, you are not submitting, are you, that the Act specifically prevents this from happening?
PN366
MR LE MIERE: No. It is not an express provision of the Act, no. No, we say that in the first instance it is a question of whether the appellant is a person aggrieved. Simple in the sense of narrow proposition is that you cannot be aggrieved by the certifying of an agreement where you are applying to the Commission to be made a party to the agreement and if the agreement is certified will have the rights consequential upon that. Now, I make reference to the provisions of section 43 subsection (2) simply to say that the proposition that I put is consistent with the statutory provisions in relation to intervention. But I don't advance that there is express provision in the Act to the effect that we put.
PN367
DEPUTY PRESIDENT BLAIN: Thank you.
PN368
MR LE MIERE: Now, I turn then to what is the substantive part of our written submissions and that is that an appeal doesn't lie in this case and because the grounds of appeal do not disclose any jurisdictional error. Might I start by making reference to the ambit of an appeal under section 45(1)(g). And I do so, of course, on the basis that - I take to be common ground and that is that section 45(1)(g) is the only statutory basis upon which this appeal can be maintained. Now, yes - I am sorry. May I attend to handing up a bundle of each of the cases that we referred to in our outline that I intend or may touch upon.
PN369
Section 45(1)(g) is in a sense a provision which corresponds to or is equivalent to the entitlement to move the High Court under section 75(5) of the Constitution for in effect judicial review of a decision of the Commission which is beyond jurisdiction. The matter referred to helpfully by Wilcox CJ and Marshall J in the Tweed Valley v Ross case. It may be convenient, Members of the Full Bench - you should have a copy of the report of the Tweed Valley Fruit Processors case in volume 137 of the ALR. It should be in the bundle that I handed up. There is an argument in the Tweed Valley case about whether section 45(1)(g) applied to the certifying of an agreement.
PN370
In part - an argument was based upon the fact that the section 45(1)(g) pre-dated the certifying provisions in the Act. That need not trouble us. At page 88 in the joint judgment of the Chief Justice and Marshall J, there is reference to the provision. And in the second last paragraph, at about line 40, there is a paragraph which follows on a matter I referred to in outline of submissions. The paragraph at line 25 is, in effect, talking of the policy of the Act to encourage the certifying of agreements and that is why it is their Honours say that there is a right of appeal against the refusal of the certifying of an agreement but no right of appeal as such against a refusal - I beg your pardon, against a certifying of the agreement. And then their Honours say at line 40:
PN371
Notwithstanding its policy to encourage enterprise flexibility agreements, Parliament would have been aware that it could not prevent challenges to approvals on jurisdictional grounds. And if the Act made no provision for appeals in Part VIB, Division 3, Matters on Jurisdictional Grounds, parties would nevertheless be entitled to move the High Court under section 75(5) of the Constitution. Indeed, they would have no alternative.
PN372
So, the same considerations as motivated the introduction of section 45(1)(g) into the Act in 1988 made it sensible not to exclude Part VIB, Division 3 cases from its application. Now, I take the Full Bench to that proposition as an indication that the ambit of an appeal under section 45(1)(g) is, if one can say, at least no wider than the constitutional review that might be sought under section 75(5) of the Constitution. And that, of course, is the limited jurisdictional review that we refer to in our outline of submissions. And, necessarily of course, very different from the appeals under the other paragraphs of sub-section 45(1). That is, the nature of an appeal under 45(1)(g) is very different from the nature of an appeal pursuant to the other paragraphs at 45(1).
PN373
It is limited to the jurisdictional error that is specified in 45(1)(g) and that the terminology, which is there found, that the member has jurisdiction or refusal or a failure of a member of the Commission to exercise jurisdiction is a terminology that the High Court has often adopted where there is an application for judicial review of some decision which is not amenable - otherwise amenable to an appeal. Now we made reference to the Coal and Allied - the decision, which indicates the nature of the ambit of the review that is permitted.
PN374
The Coal and Allied Decision again - should be in the bundle that we gave to the members of the Full Bench, it is a 2000 decision of the High Court, volume 203 of the CLR and in particular there is a useful description of the ambit of such an appeal in the joint judgement of Gaudron CJ and Lehane J at paragraph 31 on page 208.
PN375
SENIOR DEPUTY PRESIDENT: Sorry, that was in the bundle, was it?
PN376
MR LE MIERE: It should be.
PN377
COMMISSIONER LEWIN: The one that was just handed up in the plastic- - -
PN378
MR LE MIERE: Mr Bull tells me it should be, but I am getting concerned by- - -
PN379
COMMISSIONER LEWIN: I have not got it, no.
PN380
MR LE MIERE: Then I apologise and I don't know if it is a rather meagre effort but can I offer one copy at least to - for the members of the Commission to share. It is a short passage I was going to take the members to and I can read it out without boring you too much.
PN381
COMMISSIONER LEWIN: Which page?
PN382
MR LE MIERE: It is page 208.
PN383
COMMISSIONER LEWIN: 208.
PN384
MR LE MIERE: Paragraph 31 where their Honours are speaking of the nature of jurisdictional error that would permit judicial review, and at paragraph 31 their Honours said:
PN385
There would only have been jurisdictional error on the part of the Full Bench if it ...(reads)... of the opinion which it was to form the Full Bench did none of those things.
PN386
Also their Honours, they are saying if the Full Bench made error but it wasn't an error of that nature and then no judicial review was open. Their Honours went on at paragraph - oh sorry, I see your Honours just put it away, I am slow off the mark.
PN387
SENIOR DEPUTY PRESIDENT WATSON: That's all right.
PN388
MR LE MIERE: They went on in paragraph 32 to say:
PN389
In his reasons for decision Giudice J proceeded on the basis that the Full Bench...(reads)... Accordingly it was not an error in respect of which relief could be granted by way of prohibition or mandamus under section 75(5) of the Constitution.
PN390
So there in illustration the fact that even if, in that case, the Full Bench which was sought to be reviewed, even if it had made an error, it would have been an error within jurisdiction and not one to which it was amenable to judicial review. Now of course taking that down to the level here of section 45, the point is of course that even if, which of course we - say it is not the case, even if - - -
PN391
COMMISSIONER LEWIN: It is a dangerous submission though, Mr Le Miere, in a way is it not? Because it shows the full potential for frailty on the party of this Appeal Bench.
PN392
MR LE MIERE: Yes, if I follow the Commissioner that - if the Full Bench was to make an error and it was an error that was against us, we indeed would be limited in our ability - - -
PN393
COMMISSIONER LEWIN: Then in a way it reinforces your submission that therefore the matter has to be treated with considerable care and the same, I suppose, applies to the appellant.
PN394
MR LE MIERE: Yes. We say the whole scheme of the Act, of course, is that in the passages I have not taken the Full Bench to, referred to in the joint judgement in the Tweed Valley case. Is that the parliament sought to encourage the making of agreements, and that is why there is an appeal against a refusal. But is it an appeal in the usual sense against a refusal, but not an appeal against a certifying of an agreement. Because the parliament intended to leave the matter to the member of the Commission charged with that duty, and if the member decided to certify the agreement, then that was not amenable to appeal.
PN395
SENIOR DEPUTY PRESIDENT WATSON: Provided they acted within jurisdiction.
PN396
MR LE MIERE: They accepted. I think your Honour, the point their Honours were making in the Tweed Valley case, is that if the - whether there was a 45(1)(g) or not, if the Act the member of the Commission was to act outside of jurisdiction, then that could be challenged on judicial review and so recognising that, the parliament were then made a provision in 45 (1)(g). So that instead of the matter going to the High Court to consider judicial review of the members decision it would come to the Full Bench, but it does show the limited nature, and what is meant to be the limited - what is intended by the parliament to be the limited nature of the judicial review of the decision by the member.
PN397
Now, I do want to make some reference to Tweed Valley because that illustrates the - our submission - the nature of an error that may constitute jurisdictional error under 45 (1)(g) and which does not. It is of course at least - for me at least, a level of complication, the Tweed Valley case, in that there were two levels of appeals that were being considered. There had been the original decision by Commissioner Redmond to approve the agreement and then matter had gone before the Full Bench and the Full Bench then had set aside Commissioner Redmond's decision. It was the decision of the Full Bench of course, which was being challenged, of which judicial review was being sought and has been the subject of the decision by the Federal Court and which then - sorry, which then went to appeal to the Full Bench of the Federal Court.
PN398
And whilst the members of the full Federal Court were immediately concerned with whether or not the Full Bench had made jurisdictional error, they inevitably in the course of the matter looked to the question of Commissioner Redmond and whether or not he had made jurisdictional error, because it was that which permitted intervention by the Full Bench. Now the error which - it was found by the Full Bench had been made by Commissioner Redmond, is an error of a very different nature than that which the appellant alleges in this case.
PN399
My learned friend's submissions to the appellant seemed to us, sought to rely the two together and suggest that there was some similarity between the grounds on which they challenge the decision of the Senior Deputy President and based on which it was found in the Tweed Valley case, that it was open to the Full Bench to find error by Commissioner Redmond. The Act, of course, that Commissioner Redmond was concerned with was in different form at that time. The provisions are set out in the judgement - I am sorry to take the members of Full Bench back to the Tweed Valley case, at least I think we have got that in the bundle.
PN400
The important statutory provision is found at page 74 and 75 in the report, setting out section 170NC dealing with the - approving implementation of an agreement, subsection 1: Providing that the Commission must do so and must not do so unless it is satisfied that certain matters are provided for.
PN401
Then over on page 75 is subsection 2 which provides for the purposes of paragraph 1(d):
PN402
An agreement is taken - disadvantages employees in relation to their terms and conditions of employment only if (a) approval of ...(reads)... and (b) in the context of their terms and conditions of employment considered as a whole, the Commission considers that the reduction is contrary to the public interest.
PN403
Paragraph 1(d) of the section of course provides that the agreement does not disadvantage the employees, put in another parlance, passes the no disadvantage test. So the test was different then and in a sense Commissioner Redmond perhaps jumped ahead and he - - -
PN404
COMMISSIONER LEWIN: He is very visionary, Commissioner Redmond.
PN405
MR LE MIERE: He was indeed, applied the test which, had he been applying the present one, he would have made no error.
PN406
COMMISSIONER LEWIN: Yes. It is the case of the consciousness of the Parliament catching up with Commissioner Redmond, is your submission isn't it.
PN407
MR LE MIERE: Indeed, indeed, Commissioner. So what he did was, the Commissioner found that on balance - effect on balance, there was no disadvantage but that of course was not the test. The test was, was there any disadvantage in relation to any benefit, and if there was, it was then required to go on and consider paragraph (b) of the test which involved the consideration of the public interest. Now, he misconstrued the provisions. As a result of that he failed to exercise his jurisdiction at all. He didn't consider whether or not - - -
PN408
COMMISSIONER LEWIN: He didn't make a jurisdictional error - - -
PN409
MR LE MIERE: He made a jurisdictional error.
PN410
COMMISSIONER LEWIN: - - - he failed to exercise the jurisdiction.
PN411
MR LE MIERE: That is right. He simply didn't do, didn't embark upon the task which the Parliament had assigned to him. Now, it is that analysis which has been followed by a number of Full Benches of this Commission in the cases that we referred to in the outline, commencing with the - in paragraph 12 of our outline we refer to: re people leadership and performance agreement. I hope that is in the bundle.
PN412
COMMISSIONER LEWIN: It is.
PN413
MR LE MIERE: And I promise I won't take the Full Bench to all of the cases that we have there referred to, but it is helpful - a submission to go through perhaps that one to - it sets out what in our submission is the proper approach to an appeal under section 45(1)(g) against the certifying of an agreement. Members of the Full Bench should have a copy of the decision, which is print Q4886. The reasons for the decision commenced by saying that:
PN414
On 8 April 1988 Commissioner Deegan gave the decision, recorded in transcript, that she would certify an agreement -
PN415
named - which is then set out. This she did. Jumping a couple of paragraphs:
PN416
On 29 April the union filed a Notice of Appeal under section 44(8)(1)(g) against the Commissioner's decision. Section 45(1)(g) provides for an appeal to the Full Bench with leave of the Full Bench against -
PN417
and then sets out the terms of the paragraph. The Full Bench then noted:
PN418
While the Act provides for an appeal against a decision refusing to certify an agreement -
PN419
section 45(1)(e):
PN420
it does not provide for appeal against a decision to certify an agreement except on the grounds under section 170LU(2)(a) -
PN421
which is not relevant then or now:
PN422
The Commission should have refused to certify the agreement -
PN423
45(1)(e)(aa), an exception that has no relevance to the matter before us. The Full Bench continued:
PN424
The question therefore arises as to whether the present appeal lies, ie whether Commissioner Deegan's decision was one that she had jurisdiction, or was a refusal or failure to exercise jurisdiction in a matter arising under the Act.
PN425
After setting out some further matters, at about point 3 on the page, the Full Bench sets out the grounds of the appeal, where it said:
PN426
The grounds in the AMWUs notice of appeal as amended the hearing read -
PN427
Skip over (1):
PN428
(2) The Commissioner wrongly exercised jurisdiction or alternatively failed to exercise jurisdiction, in that she failed to properly apply the provisions of Division 4 of Part VIB of the Act.
PN429
In relation to ground 2 above, the Commissioner erred by (3.1):
PN430
Finding that the requirements of 170LT(2) had been met, namely that the agreement did not result, on balance, in a reduction in the overall terms and conditions of employment.
PN431
It then set out other matters that we need not touch upon. They then go to, really, two paragraphs from the bottom, about 10 lines, and the passage beginning: our view that no appeal lay, the member said:
PN432
Our view that no appeal lay from Commissioner Deegan's decision to certify an agreement is derived essentially from a consideration of the Full Bench decision in the Tweed Valley case, out on motion for the issue of prerogative writs from this decision.
PN433
and so on. In the Tweed Valley case, the Full Bench decided that it had jurisdiction under section 45(1)(g) to determine an appeal from a decision of Commissioner Redmond to approve the implementation of an enterprise flexibility agreement. The Court refused prerogative relief from the decision of the Full Bench to quash Commissioner Redmond's decision. The Court's conclusion is, we think, encapsulated in the following passage, and the judgment of Wilcox CJ and Marshall J.
PN434
They then set out the passage that we have set out in the outline of submissions and which is oft-cited in this context, and I will leave members of the Full Bench to read it for yourselves. Having thus set out the passage from the Tweed Valley case, the Full Bench continued:
PN435
Did Commissioner Deegan, with respect to the grounds in the Notice of Appeal which were argued ...(reads)... in a reduction in the overall terms and conditions of employment of the employees under relevant awards.
PN436
They then outlined, as it were, the decision of Commissioner Deegan, going through the form of it at the numbered paragraphs that follow, at the last one is paragraph number 14, towards the lower part of the page, where the Commissioner had said - concluded by saying:
PN437
Taking full account of all the documentation filed in relation to the agreement and the submissions of the parties there listed, I am ...(reads)... not disputed, this in itself is not sufficient to resolve an agreement failing to pass the no disadvantage test.
PN438
And so on. At the bottom of the page the members of the Full Bench say:
PN439
In our view Commissioner Deegan's decision demonstrates beyond doubt that she asked herself the right question: would the ...(reads)... relevant awards. Having done so, it follows, in our opinion, that no appeal lies under section 45(1)(g) from her decision.
PN440
So, if the Commissioner asked herself the right question, that is undertook the task which the Act placed upon her, then her decision was not open to appeal under 45(1)(g). It matters not that she arrived at the wrong answer, if she did, no appeal lies against applying the test incorrectly. There is no appeal against getting the wrong answer. It is only a jurisdictional error.
PN441
COMMISSIONER LEWIN: It is not the only descriptor though, is it, of potential jurisdictional error, posing the wrong question?
PN442
MR LE MIERE: No, no, it is not Commissioner and - - -
PN443
COMMISSIONER LEWIN: So that if Commissioner Deegan had said: the question is does the agreement pass the no disadvantage test, and then done nothing, or to say the answer to this question is yes, this matter may have been dealt with differently, having regard to the extensive analysis of the intermediate procedure between asking a question and reaching a conclusion as to the no disadvantage test, which is set out above that part of the appeal decision, which you have just referred to.
PN444
MR LE MIERE: I answer that, this way, Commissioner. First, it is correct that asking the right question, or asking the wrong question, is not the only descriptor of jurisdictional error. I go back to the passage in the joint judgment in the Coal and Allied case I referred to earlier. Now what their Honours there set out was a number of descriptors, the common element of which was that the decision-maker is, in a sense, exercising the jurisdiction which is being conferred upon him or her, is undertaking the task which the statutory provision requires them to undertake.
PN445
Now if they asked the wrong question, is one way of putting it, in relation to Commissioner Redmond and the Tweed Valley case, the Commissioner asked the wrong question because he simply asked whether, on balance, there was any lowering of conditions. By asking that question - - -
PN446
COMMISSIONER LEWIN: Which was against the public interest.
PN447
MR LE MIERE: Yes.
PN448
COMMISSIONER LEWIN: He asked himself a public interest question.
PN449
MR LE MIERE: Well, he failed - no, with respect Commissioner, he failed to go on and consider the public interest.
PN450
COMMISSIONER LEWIN: And deal with the public, was the question. Yes, I'm sorry.
PN451
MR LE MIERE: Yes, that is the problem. He had asked the wrong question.
PN452
COMMISSIONER LEWIN: I beg your pardon, yes.
PN453
MR LE MIERE: Now, one could also - one could use any of the descriptors that the members of the joint judgment in Coal and Allied use in relation to Commissioner Redmond and they all indicate a similar matter, misconceived its role. Commissioner Redmond misconceived his role because he failed to go on and consider the public interest test. He weighed up simply whether there was an overall advantage, or disadvantage, when weighing up all of the terms of the agreement, so he misconceived his role. He misunderstood the nature of his jurisdiction.
PN454
Well he did that because he misconstrued the statutory provisions, like some of the old English cases we used to refer to, Anasminac and so on, where if you misconstrued the provision giving you jurisdiction you may well misconceive the role and go on and do something you shouldn't be doing. Now, Commissioner, if the Commission - a member of the Commission, did nothing more than say correctly recite the test and then say that the Commission was satisfied that the test was passed, it doesn't, as it were, axiomatically follow that there can be no judicial review, but there can only be judicial review, or only can be an appeal under 45(1)(g), if the appellant is able to demonstrate that the Commissioner has, in some way, not undertaken the statutory task, has not considered the right statutory test, has not applied him, or herself, to considering whether or not, on balance, there is a reduction in the overall terms and conditions of employment.
PN455
Now, Commissioner, in saying - in answering the question the way I do, except that it doesn't automatically follow from the fact that the test is recited correctly and then is answered, but there can be no appeal under 45(1)(g). But it would be awfully difficult for an appellant to do so, because the appellant must then demonstrate, from that meagre material, that the Commissioner has misconceived the test, has misconceived his role. Now there may be some, as I say, there may be some basis for doing that, based upon some other material that might be before the Full Bench or the Court.
PN456
COMMISSIONER LEWIN: Or it may arise from the transcript of the proceedings.
PN457
MR LE MIERE: Yes, one can't exclude all possibilities. Well, I give you another example, Commissioner. Perhaps in the context back in the Tweed Valley case, if the Commissioner had correctly, at the beginning of the reasons, recited the statutory provision, but then it appears as the Commissioner went on, in fact applied a different test than that which is set out. Then notwithstanding the fact that he has just set out the test at the beginning, the decision would still be open to appeal under 45(1)(g). But the task is for the appellant to demonstrate that that test has not been properly applied.
PN458
COMMISSIONER LEWIN: They purport to do that by reference to the laundry overtime provisions.
PN459
MR LE MIERE: Well, might I defer that for a moment, or for a few minutes?
PN460
SENIOR DEPUTY PRESIDENT WATSON: Before you go on, Mr Nolan has put in path the three-point turn, effectively that Senior Deputy President Polites has failed to really genuinely, properly, or effectively, address the kind of test required.
PN461
COMMISSIONER LEWIN: What do you have to say in relation to that?
PN462
SENIOR DEPUTY PRESIDENT WATSON: That arises out of the Deloitte Touche decision in respect to taking account of, or take into account.
PN463
MR LE MIERE: Well, say two things about, at least two things about that. First, that the context in which those - the context of those decisions are not an appeal such as 45(1)(g), under the AD(JR) Act, and other similar provisions. For example, the AD(JR) Act provides that a decision may be reviewed on a number of defined grounds and one of them is failure to take into account relevant considerations. Now, in that context, a court has to determine what is meant by failure to take into account relevant considerations. And in other areas of review, sometimes a review is open on the grounds of failure to take into account a relevant consideration.
PN464
The thrust of what is said, in a number of those cases, is that a mere reference to a consideration doesn't mean that it has been taken into account, that real consideration must be given to it. But that doesn't mean, sorry, I will - yes, I was just turning up, for example - I won't ask members of the Full Bench to go to it - but the Elias case that is referred to is one where the discussion of what is meant to take a matter into account, saying it means to evaluate and give due weight to it, having regard to all other relevant factors:
PN465
A matter is not taken into account by merely noticing and erroneously disregarding it as irrelevant.
PN466
So if you refer to a factor and then say it is irrelevant, then you have not taken it into account. If it is a relevant factor and you are obliged to take it into account, then there is an error, and that of course takes one back to the Peko Wallsend case about whether you are obliged to take into account, or whether it is merely a permissible consideration, which may or may not be taken into account by the decision-maker.
PN467
But all of that has no application in this case. Perhaps one should go one step further and also make reference to the proposition that even in cases which are concerned with taking a matter into account, the distinction is drawn between, on the one hand, failing to take a relevant consideration into account and, on the other, the weight which is to be given to a consideration. The former may give rise to appealable error, for example, under the AD(JR) Act. The latter does not. If the decision-maker fails to take into account the relevant consideration then that might be error.
PN468
But if the decision-maker takes it into account but gives less weight to it than another factor, that is not even within the terms of the AD(JR) Act, may that be subject to an appeal. That is simply - that is the very task which has been given to the decision-maker to weigh up one factor against another and make a decision. But, as I say, in going into that, I risk giving some - or elevating the sort of considerations referred to in paragraph 3.10 of Mr Nolan's submission to being matters which are in any way applicable to a 45(1)(g) appeal. As I say, they are not. They don't go to whether or not there has been a constructive failure to exercise jurisdiction and one goes back to the Coal and Allied case and the Tweed Valley case to see the nature of a jurisdictional error. They are not simply failing to take into account relevant considerations.
PN469
Now, I won't take the Full Bench through the other cases that we referred to. There are now - we have referred to one, two, I think at least three or four, perhaps three decisions of Full Benches of this Commission, all following that approach in Tweed Valley. The people leadership approach, if I can phrase it that way, and that is essentially this: that the task for the Full Bench is to inquire whether or not the appellant has demonstrated that the Commission failed to ask itself the right question, failed to undertake the task that is assigned to it by the Act.
PN470
If the Commissioner properly understood his jurisdiction, properly understood what was required of him, then the Full Bench is neither obliged, nor entitled, to inquire whether he got it right. To put it in simple terms, if he got the question right it doesn't matter whether his answer was right or not. If he knew, if the Commissioner properly understood the question but got the wrong answer no appeal lies under 45(1)(g). We say that is playing from the - - -
PN471
COMMISSIONER LEWIN: So that if the appellant has standing, as an aggrieved personal party, the appeal is to be decided as to whether or not the descriptors of jurisdictional error have been successfully made out in relation to Senior Deputy President Polite's decision.
PN472
MR LE MIERE: Yes, Commissioner.
PN473
COMMISSIONER LEWIN: The conclusion is irrelevant. If that is made out, the appeal should be upheld and if it is not made out, it should be dismissed.
PN474
MR LE MIERE: Yes. That's so. Now, we submit that it is clear that the Senior Deputy President did ask himself the right question,apply the right test,approach the task correctly, did not misconstrue his jurisdiction. In putting it that way,of course,we don't assume the burden of establishing that. It is for the appellant to establish that the Senior Deputy President failed to do those things, and the must be able to - the appellant must be able to positively establish that the Senior Deputy President made an error of that sort. Now, I perhaps might touch on - - -
PN475
SENIOR DEPUTY PRESIDENT WATSON: Just before you do, Mr Le Miere, how long would you anticipate - it is just a question of whether we take lunch, or continue on?
PN476
MR LE MIERE: Yes, I think I might be another - reluctant to estimate, but a good half hour I would think.
PN477
SENIOR DEPUTY PRESIDENT WATSON: Yes. Well in that case we might break at this point for lunch Mr Le Miere. We will resume at 2.15.
LUNCHEON ADJOURNMENT [12.p]
RESUMED [2.17pm]
PN478
SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Le Miere?
PN479
MR LE MIERE: Members of the Full Bench. Now, in addition to the error made by the appellant in the approach it takes of the appeal, we submit there are two particular errors in the submissions which have been made that I wish to go to at this time. The first is that contained in paragraph 4.10 of the appellant's written submissions where it submitted that if one element of the no disadvantage test is in error, the application of the whole test which requires an assessment on balance as between the agreement and the award has not been met. And reference is made to the decision in re Just Cuts. Now, Just Cuts, my learned friend took the Full Bench to, or referred to this morning, that is a decision of a Full Bench of this Commission.
PN480
Might I inquire whether Members of the Full Bench have a copy of that decision, perhaps in the bundle, that my friend gave. I see Deputy President Blain nodding. It might be useful to go to that case, number 7 in my friend's bundle. The first thing to note about this decision is that it was an appeal against the decision of Commissioner Larkin refusing to certify an agreement. So of course you get to then the other decision in respect of which there is, if I can call it, a normal right of appeal. With leave, of course, but a normal appeal lies.
PN481
Now, I think relevant to the proposition the appellant puts in paragraph 4.10 of its outline, I take the Full Bench to these parts of the decision at page 4 of the Print. There are a number of points being made. The second last dot point on page 4 was that it was an appeal from a discretionary decision. We submit that is correct and I will perhaps return to that again a little later.
PN482
The principle to be applied in such an appeal are those set out in the following paragraph from House v the King and the well known passage from that High Court judgment is then set out. But then, say, we turn to the contention that the Commissioner made an error in finding that the agreement did not provide for increase in wages during the life of the agreement. And on the following page at about .3 on that page, in effect comes the conclusion, in the first paragraph that is not indented where they say, "We do not think," and said:
PN483
We do not think there is any doubt that in relation to a material matter, Commissioner Larkin mistook the facts.
PN484
Their decision proceeds on the basis that there was not provision in the agreement for an increase in wages during the term of the agreement. Clause 11 provides for an increase of at least 2 per cent in July 2001.
PN485
This mistake may well have influenced the Commissioner's conclusion in relation to the no disadvantage test. In all of the circumstances we must grant leave to appeal and quash the decision. It is unnecessary to consider the other arguments raised by Mr Wilson.
PN486
So, in that context, it was sufficient to satisfy the - they brought the House v the King test to have identified one error made by the Commissioner which may have influenced the decision. But what is important, of course, is that that was an appeal under section 45(1)(e) of the Act, being an appeal against the decision to certify an agreement. And the ordinary appeal principles applied and indeed, the Full Bench said the applicable test is that in any appeal against a discretionary judgment, the House v the King principles.
PN487
What is revealing about it is, is that how different that is from an appeal under section 45(1)(g), where of course appeal does not proceed, and if they call it the House v the King principles, the question is whether or not there is jurisdictional error. So, it is simply to confuse matters to look at decisions such as that which concern a 45(1)(e) appeal against a refusal to certify. The second matter that I want to go to now is the propositions that are put, I think, in 3.8 and 3.2 - perhaps the other way round; 3.2 and 3.8 of the submissions and perhaps repeated, in the sense, amplified in argument by my learned friend, Mr Nolan, this morning.
PN488
And that is, the proposition put by the appellant that the jurisdiction of the Commission to certify the agreement depends upon whether the Commission reached the right conclusion that the agreement passes the no disadvantage test and not on a state of satisfaction in the Commission. Now, with respect, that simply is wrong. The exercise of the Commission's jurisdiction to certify an agreement turns upon the satisfaction of the Commission that the agreement passes the no disadvantage test. It is not a pre-condition of the exercise of the Commission's jurisdiction that the agreement passes the no disadvantage test.
PN489
Now, there are many times the courts have drawn the distinction between different types of jurisdictional fact. One jurisdictional fact is where the existence of a fact or circumstance is a pre-condition to the exercise of jurisdiction. A separate category is where the satisfaction of the Tribunal as to the existence of a fact or circumstance is a pre-condition to the exercise of the jurisdiction. Now, in this case, it is plainly the latter which applies. One goes to section 170LT(1) and that subsection provides:
PN490
If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless it is satisfied that the requirements of this section are met.
PN491
Now, the requirements of the section are then set out in the remaining subsections of that section. And all of them, of course, are couched in terms of, must do this. Subsection (2):
PN492
The agreement must pass the no disadvantage test.
PN493
Subsection (5):
PN494
If the agreement was made in accordance with section 170LJ of Division 3, a majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement.
PN495
Subsection (6):
PN496
The majority must have made the agreement.
PN497
Seven:
PN498
The explanation must have been appropriate -
PN499
and so on. Because each of those subsections are setting out a requirement. The governing provision, that which sets out the pre-condition for the exercise of the jurisdiction to certify an agreement is subsection (1), which says what must occur, that is, the pre-condition for the exercise for the jurisdiction is that the Commission is, "satisfied," that the requirements of the section are met. Put another way, it is not a pre-condition to the exercise of the Commission's jurisdiction to certify an agreement that the agreement does pass the no disadvantage test.
PN500
If that was so, all that the other Full Benches have said in the People Leadership cases and the other cases referring to the outline, and indeed, going back to Tweed Valley case, would all be beside the point if my learned friend be right. And an appeal under 45(1)(g), against the certifying of an agreement, the task for the Full Bench would be to decide for itself whether or not the agreement passes the no disadvantage test. There in effect would be no jurisdictional hurdle to overcome.
PN501
It would be, in effect, a re-hearing by the Full Bench for the Full Bench deciding for itself whether or not the no disadvantage test has been met. Now, that plainly is not the intent of the legislation and indeed, I labour the point, but it is expressly stated in subsection (1) that it is a satisfaction of the Commission which pre-conditions the exercise of the jurisdiction.
PN502
COMMISSIONER LEWIN: Could I just ask you, in that respect, Mr Le Miere, whether or not Energy Developments bears on this subject at all, which is one of the decisions that - in tab 8 of the blue folder, because in that case, I think whilst not necessarily considering the no disadvantage test, the Commission - - -
PN503
MR LE MIERE: Yes. The Commissioner - might I say, the principles are different when one is looking at 170LK. Under 170LK:
PN504
The employer may make the agreement with a valid majority of the persons employed at the time whose employment may be subject to the agreement. The employer must take reasonable steps to ensure...
PN505
and so on. You will see none of those provisions are conditioned by the requirement of the satisfaction of the Commission. That is an illustration of the distinction between the two matters. Under subsection (3):
PN506
At or before the time when the notice is given, the employer must take reasonable steps.
PN507
So that, where one refers to that as being a mandatory test, the question is whether or not those steps were taken. It is not a question of the satisfaction of the Commission whether or not they were taken. Or more to the point, I think, in the context of that case as I recall it, the argument was whether or not reasonable efforts having been made by the employer to take those steps was sufficient. And I think that was the context of the case. Is it sufficient that the employer has taken reasonable steps to do those things. And the decision is, no, because the test that is set out in LK is that those steps must be taken.
PN508
So, it is a different issue but none the less, if one goes to that decision at paragraph 21, I think this is the passage my learned friend has quoted in the written submissions, page 7 of the Print, paragraph 21, it said:
PN509
The requirements of section 170LK are mandatory.
PN510
That is apparent from the language used in the section and its statutory content as a Full Bench of the Commission said in re Mobile Food Vans Enterprise Agreement:
PN511
Section 170LK at subsections (2), (3), (4), (5), (6), (7) and (8) provides a series of steps and requirements designed to protect the interests of employees and provide fairness in the process where an employee seeks to make an agreement with a valid majority of employees.
PN512
Throughout section 170LK, the Parliament in setting out the requirements and various subsections has done so by stating that the obligations placed on the employer must be undertaken. To consider that having regard to the objects of the Act and language used in 170LH and 170LK, there is a statutory intention that:
PN513
Each of the subsections of 170LK must be complied with to ensure that the object states fair and effective agreement making. And failure to meet any one of them will render an application for certification invalid ..... one of the requirements of that Act.
PN514
Now, in 170LT:
PN515
The Commissioner must be satisfied as to each of the requirements set out in that section, which are found in the following subsections.
PN516
And if the Commissioner was not satisfied as to any one of those requirements then that would be sufficient such the Commissioner is not able to certify the agreement. So, in each case, the difference is that under 170LK the carrying out of those steps is the requirement in the section, or put more correctly, the statutory provision is that the agreement may be made if those things have occurred. Not, if the Commission is satisfied that they have occurred or if reasonable steps have been taken to see that they occurred.
PN517
But under 170LT, the Parliament has specifically provided that the agreement - or the Commission must certify the agreement if, and must not certify it unless it is satisfied that the requirements are met. So, the satisfaction of the Commission as to those requirements, which conditions the exercise of the jurisdiction are conferred by 170LT(1).
PN518
DEPUTY PRESIDENT BLAIN: Mr Le Miere, would you agree it must be implicit that the Commission must be satisfied that the provisions of section 170LK have been satisfied?
PN519
MR LE MIERE: Yes. Yes, that would be so. The Commission could not find that they were satisfied unless the Commission was satisfied that they were so.
PN520
DEPUTY PRESIDENT BLAIN: So that is consistent with your submission?
PN521
MR LE MIERE: It is, Deputy President. The distinction in a sense, it makes no difference to the task being undertaken by the Commissioner. For the commissioner, the question whether the steps have been taken or he is satisfied that the steps have been taken, is the same question for the Commissioner. There is no practical difference in the Commissioner answering those two questions. The difference is when one considers whether there is jurisdictional error. The difference is that in the one case, the taking of those steps is a jurisdictional fact. And the other, the jurisdictional fact is the satisfaction of the Commissioner.
PN522
Now, the reason one can readily see why the Parliament chooses in some instances, not just in this legislation but in others, why the Parliament chooses in some instances to make the existence of a set of circumstances of jurisdictional fact and others, the satisfaction of the relevant Tribunal as to the existence of those circumstances, the jurisdictional fact. And it is the latter case, that is, making the satisfaction of the Tribunal as to the existence of circumstances, the jurisdictional fact, is often the case where those circumstances involve an element of subjectivity.
PN523
In this case, where the set of circumstances is a test that on balance there is no disadvantage. That in itself involves a measure of judgment, evaluation, subjectivity. And so, in such a case, one readily sees why the Parliament chooses to make, as it were, the jurisdictional fact, the satisfaction of the Commission as to the meeting of that requirement; that requirement is met.
PN524
COMMISSIONER LEWIN: But my understanding of your submission earlier was that it is possible to fall into jurisdictional error in the process of obtaining a state of satisfaction?
PN525
MR LE MIERE: Yes. If in this sense, Commissioner, if one was satisfied as to the wrong thing, back to the example of Commissioner Redmond. Commissioner Redmond was satisfied but not about the right thing.
PN526
COMMISSIONER LEWIN: Yes, I understand. But we are back to where I think we were just before lunch and that is, that if the appellant is to succeed, they have to show arriving at the requisite level of satisfaction there is an error of the kind which is described as a jurisdictional error.
PN527
MR LE MIERE: Yes. And that goes to it put as we discussed before, Commissioner, there are a number of descriptors that can be used to describe that form of error. But one thing is plain. It is not simply error of law. One illustration that is sometimes put forward is, where an error occurs in relation to the construction of an instrument or a document. Now in this case, for example, if there was an error by the Commissioner in the construction of section 170LT or 170XA, that may well result, that could well result in jurisdictional error because by misconstruing the provisions which tell the Commissioner what it is he is to do, he may there by not exercise the jurisdiction which has been conferred on him.
PN528
COMMISSIONER LEWIN: Or failing to apply himself to the task as defined?
PN529
MR LE MIERE: Yes. But it is perhaps helpful to look at another example. If the Commissioner correctly construes the provisions which tell him what he is to do but in the course of doing that he misconstrues another instrument, for example, a clause of the award or the agreement, that is an error. It may be an error of law but it is not a jurisdictional error.
PN530
COMMISSIONER LEWIN: What if he fails to address himself to the relevant instrument, being the award, at all; there would be a jurisdictional error, would there not?
PN531
MR LE MIERE: Yes, I think if I comprehend what you are putting to me correctly, Commissioner, yes.
PN532
COMMISSIONER LEWIN: Or if there was a law of the Commonwealth that was relevant and the primary decision maker did not address the relevant law of the Commonwealth for the purpose of the no disadvantage test. That would be a jurisdictional error, would it not?
PN533
MR LE MIERE: I hesitate.
PN534
COMMISSIONER LEWIN: Because the no disadvantage test - - -
PN535
MR LE MIERE: It may well be. I am a little bit equivocal about that without having a concrete example.
PN536
COMMISSIONER LEWIN: Well, Long Service Leave Act, for instance.
PN537
MR LE MIERE: I would think that is highly likely, certainly. I mean, there may be instances - - -
PN538
COMMISSIONER LEWIN: If it was a - sorry, just to interrupt you. If it was an agreement in the public sector and there was some legislation of the Commonwealth in relation to its own employees concerning terms and conditions of employment, which may not be readily apparent and they were not taken into account, there would be a jurisdictional error.
PN539
MR LE MIERE: I think that - probably so, Commissioner but to try and explain why I am being equivocal about it, if the - whether or not the law was a relevant law was an issue, then that may well not be a jurisdictional error. If one of the issues before the Commission was an argument about whether a particular law was a relevant law, then we would submit that is probably an error within jurisdiction.
PN540
So, again, it is difficult to answer in the abstract, without coming down to particular instances, but if there was - I think the instances you were intending to throw to me, Commissioner, is if there was a law which was plainly, unarguably a relevant law and which there was no - and the matter had been referred to, but the Commissioner, for some reason that is unknown, has failed to have regard to it, then that would appear, on the face of it, to be a jurisdictional error.
PN541
But not, as I say, if there was an argument about whether it is relevant or not, and he makes an error in deciding that it is not relevant when it is, that would be, in our submission, an error within jurisdiction.
PN542
COMMISSIONER LEWIN: One of the things that occurred to me when I looked at the materials and had a look at the relevant award - I think it is the relevant award.
PN543
MR LE MIERE: It is the 2002 one, Commissioner.
PN544
COMMISSIONER LEWIN: The Security Officers Western Australia Award 2002?
PN545
MR LE MIERE: Yes.
PN546
COMMISSIONER LEWIN: Is that Senior Deputy President Polites seems to have proceeded for the purpose of comparing the terms of the agreement in relation to overtime without specific reference to the terms of the award.
PN547
MR LE MIERE: Well - - -
PN548
COMMISSIONER LEWIN: Namely, clause 16.
PN549
MR LE MIERE: I am sorry, under clause 16 of the Award?
PN550
COMMISSIONER LEWIN: Yes.
PN551
MR LE MIERE: Well, I am not sure that - - -
PN552
COMMISSIONER LEWIN: Was that addressed in the decision, clause 16?
PN553
MR LE MIERE: Well, perhaps might I go back a step and approach it in this way, Commissioner. The way in which the matter proceeded was this. One needs to go back to the history of it, set in context. There was, of course, the earlier application which was considered by Senior Deputy President Lacy. And that is not merely history but, in a sense, form part of this application. Now, I think one Member of the Full Bench may have drawn attention this morning to the statutory declaration accompanying the application for certification and at paragraph 6.3 or section 6.3 it says:
PN554
State whether certification would result, on balance, in a reduction in the overall terms and conditions of employment.
PN555
The answer that is ticked:
PN556
Certification would not result in a reduction in the overall terms and conditions of employment. See -
PN557
and then reference to the earlier decision of Senior Deputy President Lacy and the transcript on 18 February 2003. Now, it is convenient at this point to me to make reference to that transcript. The reasons for decision of Senior Deputy President Lacy in effect say little more than that the agreement failed to pass the test. That there were amendments proposed or offered to the agreement but they had not been considered by the employees so they wouldn't be considered by the Senior Deputy President. And the agreement in its original form fails the test. Now, with reference to the transcript, is that when the Senior Deputy President Lacy delivered judgment on reasons for decision on 18 February - and I don't know whether this is on the bundle of documents given to the Full Bench, but if I might read from just two paragraphs from the transcript as there referred to. They are paragraphs P-N373 and P-N374. The Deputy President said this:
PN558
Mr Clarke -
PN559
who appeared for the company at that time -
PN560
Mr Clarke, you will see from the reasons that although I do not say as much, the insertion of those amended provisions that you proposed would most likely get the agreement over the hurdle, but for the fact that the agreement is, in my view, fundamentally changed by those amendments and would not represent the agreement that was approved by the employees. So, if the matter was taken back to the employees and the employees voted on the agreement with the inclusions in it, the likelihood is that it would scrape over the test.
PN561
And then went on to refer to something which the Deputy President then says:
PN562
... need not be taken into account in the test anyway.
PN563
So, that is why there is a reference in the statutory declaration to the transcript, because Deputy President Lacy had said that the amendments that were proposed would, in the Deputy President's opinion, have passed the test. Now, when the matter came on before Senior Deputy President Polites, reference was made to the proceedings before Deputy President Lacy. And after initial reference - and I read from the transcript. After initial reference to the intervention at paragraph P-N6, Mr Uphill, then appearing for the company, said:
PN564
Your Honour, if I might just touch upon some of the detail of the argument and then perhaps move on to make some submissions in respects to the intervention. The application is for the certification of an agreement pursuant to section 170LK of the legislation. From a perusal of the papers it should be clear that this matter has had a fairly lengthy history, having been the subject of or another agreement of almost identical content was the subject of proceedings before Deputy President Lacy.
PN565
His Honour then interrupts to say:
PN566
Yes, I have read that decision.
PN567
And then Mr Uphill continues:
PN568
Yes, I suspected that you probably had. Since that time, your Honour, the matter has been re-submitted to the employees. The agreement has been modified to take account of the decision of his Honour and this agreement has been approved by a valid majority. And we believe the documentation that has been filed does indicate very clearly that the agreement complies with all the legislative requirements.
PN569
Now, at P-N11 Senior Deputy President says:
PN570
I have read the agreement and I have read the decision and it looks to me as if you have made an attempt to fix it up, as it were, the difficulties pointed to by the Senior Deputy President.
PN571
And then goes on to talk about intervention. So, we have got a scenario where there is a history to the matter. The Senior Deputy President has both read the prior history and read the agreement before the hearing commences. It is not as if it is a blank sheet that we start with. There is argument about intervention and then what happens is that, as we canvass through to this morning, the Senior Deputy President, without formally resolving the difficulty that the Senior Deputy President points to about intervention in his reasons for decision, permits the union to put the matters which they say cause the agreement not to pass the no disadvantage test.
PN572
So the matter proceeds then by way of the union putting up those objections, as it were, identifying every respect that it can point to which causes the agreement not to pass the test. Those are then responded to by the - on behalf of the company. The Senior Deputy President then adjourns proceedings to consider the matter. It stands adjourned for some 20 days during which, presumably, the Senior Deputy President has considered the matters that have been put up in the light of the materials that were before him and the agreement and the award and then comes to a decision.
PN573
Perhaps if I can, before coming to the reasons which I'm going to shortly, go back to a matter which Deputy President Blain raised this morning and that is on what, as it were, matters the Commission may be satisfied on that the test has been passed. Now, of course the Act does not specify on what matters - matters on what materials are to lead to the Commission's state of satisfaction. The other provisions of the Act, of course, talk about the Commission being able to inform itself as it sees fit and not being bound by formal rules of evidence and so on.
PN574
Now, in this case, the materials which the Deputy President had before him of course include the award and the agreement. They include the statutory declaration in support of the application, including a declaration that there is no overall disadvantage. They include the transcript before Deputy President Lacy in which the Deputy President had offered the view that the agreement as amended passed the test. The materials - - -
PN575
SENIOR DEPUTY PRESIDENT WATSON: Was that transcript before Senior Deputy President Polites? It doesn't appear to be on the file, the original file.
PN576
MR LE MIERE: It is referred to in the statutory declaration.
PN577
SENIOR DEPUTY PRESIDENT WATSON: Statutory declaration, yes.
PN578
MR LE MIERE: Whilst I haven't inspected the file I assume it says (c) so one must assume the Senior Deputy President would have had it available to him. It is true that in his reasons for decision he only refers to the decision of Deputy President Lacy but again, in my respectful submission, of course at that stage there is no issue being raised about whether one was talking about the formal reasons for decision or the transcript at the handing down of the decision and so on, and one can't read anything into that. But it is to say what we do know is the statutory declaration referred the Senior Deputy President to the transcript and the Senior Deputy President would have had the transcript available to him.
PN579
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN580
MR LE MIERE: Now, other matters of course, importantly, that were before Senior Deputy President Polites are the submissions that were made by the parties. Now, of course it is correct that in this case the matter proceeded by way of submissions from the bar table. Neither party went on oath, neither party gave evidence on oath, but the matter proceeded by way of submissions, argument, material being put from the bar table and of course it is if not common place, it has often been the case in the Commission that the mini-decision, to the effect the Commission may rely upon material that is put to it from the bar table.
PN581
Now, I'm going to refer - there was one exchange this morning in relation to a matter that was put, in relation to shift rosters and whether that was accepted or not and I will come to that specifically but I want to do that in context. So all of those materials were before the Senior Deputy President and in addition to that was his own knowledge and experience, yes, in this industry. And, again, there is a patch that I will come to where the Senior Deputy President refers to his own knowledge, in effect, of rosters, shift rosters, within the industry.
PN582
Now, that again is a matter he is entitled to have regard to. There is no natural justice problem here because he refers to this matter in the course of the discussion. It is not a matter of him having taken into account something and the party not being given an opportunity to deal with it. So all of that is material which the Senior Deputy President is entitled to have regard to in deciding whether he is satisfied that the requirements of the section, including that the no disadvantage test has been passed, have been met.
PN583
Now, I've just been reminded by Mr Bull that he thought I haven't answered - I forget which member of the bench asked a question about whether the Senior Deputy President addressed the overtime issues and I'm sorry if I haven't. I'm going to come back to overtime so perhaps I will get to it there. Now, one looks to see then what are the errors which the appellant points to in this case, which are the jurisdictional errors that have been made by the Senior Deputy President such as to give rise to an appeal under 45(1)(g). Essentially the appellant argues that the Senior Deputy President was required to, but failed to, undertake an analysis of corresponding provisions of the agreement as opposed to the award and make a statement of those matters taken into account in reaching the conclusion that, on balance, there has been no reduction in the overall terms and conditions of employment.
PN584
The appellant says, in a sense, there is a particular illustration that the Commission failed to properly or adequately analyse the requirements of the voluntary additional hours clause. So we respond to that in this way, that the argument doesn't get off the ground because the Senior Deputy President did undertake an analysis and did undertake the analysis that the appellant says he should have, including an analysis of the additional hours clause. Now, can I take the members of the Full Bench to the Senior Deputy President's reasons for decision. Paragraph 1, the Senior Deputy President refers to the application, in paragraphs 2 and 3 makes reference to matters relevant to intervention and then in paragraph 4 notes that:
PN585
An application to certify a previous agreement made by the employer had been rejected by Senior Deputy President Lacy ...(reads)... and the agreement endorsed.
PN586
Then paragraph 5, what the Senior Deputy President does is to identify all of those respects, or all of those matters, which the now appellant said constituted the reduction in conditions of employment. Paragraph 5 it said:
PN587
Miss Bennett, for the union, argued the agreement still failed to pass the test on the following basis.
PN588
And reference is made to the 10 points that were put forward by the union. So, if I can stop at that point and say that is the totality of the argument that was put forward and is put forward now. There was no other material before the Senior Deputy President to say that in some other way it failed to pass the no disadvantage test, in some other way there was a reduction in conditions of employment. So the Senior Deputy President sets out the totality, as it were, of what is put against the agreement.
PN589
Then the Senior Deputy President deals with the - where the response to those points, in paragraph 6, 7 and 8. In paragraph 9, reaches a conclusion in relation to each of those points and comes to the conclusion that the agreement, on balance, passes the no disadvantage test and then, in paragraph 10 as it were, as a further comfort to that agreement, the Senior Deputy President refers to the no disadvantage clause in the agreement. In paragraph 12, again refers to - a little bit out of order, goes to one of the other points that was made by the union and finds that it is not a disadvantage. In paragraph 13, sets out then the conclusions that each of the requirements are met and then goes on, as it were, to say that the, in effect, formal orders should be made.
PN590
Now, what I want to do now is to briefly go through each of these points that were made by the union to illustrate this, that the Senior Deputy President first considered each of the points, second, analysed them and, third, came to a decision on each of them. And that is as far as the Full Bench, in our respectful submission, can possibly go in considering the matter on a 45(1)(g) appeal. Whether he got it right or not is beside the point.
PN591
SENIOR DEPUTY PRESIDENT WATSON: Did the Senior Deputy President consider at all the position in respect to the afternoon shift loading?
PN592
MR LE MIERE: Yes.
PN593
SENIOR DEPUTY PRESIDENT WATSON: Where did he do that?
PN594
MR LE MIERE: This is the night shift point, the cut off, the - - -
PN595
SENIOR DEPUTY PRESIDENT WATSON: No, the afternoon shift loading. As I understand it there are two deficiencies.
PN596
MR LE MIERE: Yes.
PN597
SENIOR DEPUTY PRESIDENT WATSON: The afternoon shift from 12 to 6, there is no loading in the agreement and the - - -
PN598
MR LE MIERE: Yes, there is a - - -
PN599
SENIOR DEPUTY PRESIDENT WATSON: The night shift loading is reduced from 25 to 15 per cent. Now, he has addressed the fiddling of the rosters proposition in respect to the night shift.
PN600
MR LE MIERE: Yes.
PN601
SENIOR DEPUTY PRESIDENT WATSON: Unless I've missed it, I can't see any place at which he has - - -
PN602
MR LE MIERE: Yes, in paragraph 6.
PN603
SENIOR DEPUTY PRESIDENT WATSON: Six? Yes.
PN604
MR LE MIERE: See, Mr Uphill, for the employer, submitted the roster was true, there was no afternoon shift allowance and the night shift allowance for 15 per cent, it was possible under the award, by structuring the shift rosters, to avoid the payment of the night shift allowance.
PN605
SENIOR DEPUTY PRESIDENT WATSON: That deals with the night shift allowance.
PN606
MR LE MIERE: Yes, well, I suppose, one could also say the same - of course, you can juggle around the rosters in any way to avoid the paying of penalties. But under the agreement, as - - -
PN607
SENIOR DEPUTY PRESIDENT WATSON: Well, only within the context of practical constraints on the business operating its - - -
PN608
MR LE MIERE: Of course, and the illustration was given in relation to the night shift, if you just started 5 minutes earlier, or I suppose 1 minute earlier, it is as - - -
PN609
SENIOR DEPUTY PRESIDENT WATSON: Yes. Well, there is no doubt he specifically addressed that.
PN610
MR LE MIERE: It is as practical as that.
PN611
SENIOR DEPUTY PRESIDENT WATSON: I think the real issue - well, not the real issue, but one of the issues is not that shift it is the afternoon shift, isn't it?
PN612
MR LE MIERE: The other point being made - the other point, Commissioner, is that under the agreement if you work any hours on that shift you get the loading, irrespective of what time it started.
PN613
SENIOR DEPUTY PRESIDENT WATSON: The night shift? Any shift?
PN614
MR LE MIERE: Any shift.
PN615
SENIOR DEPUTY PRESIDENT WATSON: Any shift.
PN616
MR LE MIERE: So see, there is a swings and roundabouts here in that sense that whilst you can - under the award you may get no loading, relative loading, if you start - - -
PN617
SENIOR DEPUTY PRESIDENT WATSON: On an afternoon shift.
PN618
MR LE MIERE: I think that is so, if it starts prior to the time when the loading applies.
PN619
SENIOR DEPUTY PRESIDENT WATSON: I see. So, you're saying that whilst it may not have been explicitly referred to, the same principle applied to afternoon shift as applied to night shift?
PN620
MR LE MIERE: I think that is implicit in the way the Senior Deputy President is dealing with it as one item and - - -
PN621
SENIOR DEPUTY PRESIDENT WATSON: Was that addressed before the Senior Deputy President? As I understand it, Ms Bennett put the proposition in respect to the absence of the afternoon shift provision and the diminished night shift provision. Mr Uphill - - -
PN622
MR LE MIERE: Yes, there was a - - -
PN623
SENIOR DEPUTY PRESIDENT WATSON: Mr Uphill addressed it by reference to the 5 to 6 proposition in respect to the - - -
PN624
MR LE MIERE: I think that was illustrative of the point being made, your Honour, that under the award whether a particular loading applies depends upon the time at which the shift commences and Mr Uphill, in response, is saying that the shifts can be started 5 minutes, 1 minute, earlier to - I think the word might have even been fiddling the roster to avoid the shifts. And Mr Uphill gives the illustration in relation to the night shift but he is dealing with it together. In the transcript I think it is - - -
PN625
SENIOR DEPUTY PRESIDENT WATSON: Well, Ms Bennett seems to address it at paragraph 25 and 26.
PN626
MR LE MIERE: In their initial submissions. Yes, then - - -
PN627
SENIOR DEPUTY PRESIDENT WATSON: In the initial submissions Mr Uphill seems to address it at paragraphs 40, by reference to the night shift, and 41.
PN628
MR LE MIERE: Yes.
PN629
SENIOR DEPUTY PRESIDENT WATSON: Follow it up later, I believe. Ms Bennett later points to the normal pattern of rostering within the industry, paragraph 65 to 69.
PN630
MR LE MIERE: Yes, an interesting - perhaps, whilst you're on that part, your Honour, my learned friend this morning, I think, questioned whether that had been, in a sense, accepted or challenged by the union in that passage, because Ms Bennett accepts what is being put.
PN631
SENIOR DEPUTY PRESIDENT WATSON: There Senior Deputy President expresses a view that he has seen it done.
PN632
MR LE MIERE: Yes, and that was the point I was making to earlier, of the Senior Deputy President's knowledge of the industry and of the rosters in this industry. He refers to it and it is acknowledged by Ms Bennett for the union.
PN633
SENIOR DEPUTY PRESIDENT WATSON: That is, again, specifically in relation to the night shift penalty. So it is not immediately apparent that the day shift position has been addressed at all.
PN634
MR LE MIERE: In my submission, your Honour, the way in which it is dealt with is that they're dealt with together by the - they're raised, as it were, as a lump sum item by the union, responded together by Mr Uphill - at 40, as your Honour indicated, Mr Uphill says that:
PN635
The agreement does not exactly mirror the award provisions.
PN636
Then he deals with - he says:
PN637
But looking at the first matter, dealing with the shift allowance provisions, it is true that there is no night shift penalty. I would also outline the operational practicalities that are possible under the award provisions.
PN638
And that is the award clause. It talks about:
PN639
A night shift allowance of 25 per cent applying where a night shift commences after 6 pm. It is of course possible -
PN640
and we go into the, in a sense, fiddling the award business:
PN641
It has been drawn to my attention the company doesn't want to get into that type of arrangement, believes, in the circumstances, a 15 per cent shift premium ought to apply and that is the basis on which mention of that has been asserted into the agreement.
PN642
SENIOR DEPUTY PRESIDENT WATSON: Well, if the company doesn't get into that sort of arrangement then - - -
PN643
MR LE MIERE: No, it doesn't want to get into it.
PN644
SENIOR DEPUTY PRESIDENT WATSON: Does not want to get into that sort of - - -
PN645
MR LE MIERE: Yes, not that it doesn't get into it, it doesn't want to get into it.
PN646
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN647
MR LE MIERE: The point being that the agreement will obviate the necessity for that.
PN648
SENIOR DEPUTY PRESIDENT WATSON: To fiddle the shifts, yes.
PN649
MR LE MIERE: Mr Uphill goes on:
PN650
I'm also reminded the ability to work 12 hour shifts, including that situation, also leads to the view that the shift penalty structure in the agreement is not inconsistent with that type of arrangement.
PN651
And, of course, if any part of the shift that you work under the agreement is within what the hour is, when the hour when the shift allowance applies, then you get that allowance irrespective of what time the shift commenced. So in that sense, as I say, it is a swings and roundabout provision. Now, that is the context in which it is being addressed by Mr Uphill. The Senior Deputy President acknowledges his knowledge of this situation, in the passages he referred to.
PN652
SENIOR DEPUTY PRESIDENT WATSON: In respect of the night shift. But it seems only to deal with the night shift in the decision. His Honour seems to deal only with the night shift position. It is not immediately apparent that the afternoon shift penalty difference has been addressed at all, either by Mr Uphill in submissions or by His Honour in his decision.
PN653
MR LE MIERE: Well, I repeat again your Honour, that they're being dealt with together by Mr Uphill and the - it is implicit in what Mr Uphill says and the way the Senior Deputy President is dealing with it that he is dealing with them on the same basis and treating it as there is an element of swings and roundabouts under the agreement.
PN654
COMMISSIONER LEWIN: Yes, I just wonder whether or not, even if that is so, the task has been undertaken in the matter that is necessary, having regard for the fact that quite apart from starting before noon, there is no consideration of shifts starting after noon, under the award.
PN655
MR LE MIERE: I'm sorry, Commissioner, I missed that point.
PN656
COMMISSIONER LEWIN: Well, aren't the provisions in relation to work performed during the afternoon, concerning work performed after noon?
PN657
MR LE MIERE: Under the agreement?
PN658
COMMISSIONER LEWIN: Between noon and 6. That is clause 6.2.
PN659
MR LE MIERE: I'm sorry, yes, in the agreement - the award?
PN660
COMMISSIONER LEWIN: There doesn't seem to be any consideration given to that. All the discussion seems to be about the night shift. What falls off the radar is the 15 per cent payable for a shift commencing between noon and 6.
PN661
MR LE MIERE: Yes, and 6.2:
PN662
Afternoon shift means any shift commencing between 12 noon and before 6 pm.
PN663
But the point I've tried to make to the Commission is exactly the same argument applies. You could start the shift at 1 minute to noon.
PN664
COMMISSIONER LEWIN: I appreciate that.
PN665
MR LE MIERE: Hence that - - -
PN666
COMMISSIONER LEWIN: What if it starts at 1 minute past? You can't avoid it then, can you?
PN667
MR LE MIERE: No, but the point that is being made by Mr Uphill and which the Senior Deputy President says he is aware of in the industry and accepts it might be done, is that under the award, if the award provisions were to apply, one doesn't know that the work - that an employee will receive the night shift because it is open to the employer, the Senior Deputy President says, to his knowledge, is applied in the industry. But the shift is simply started a minute earlier and one must reasonably assume - - -
PN668
COMMISSIONER LEWIN: Well, why wouldn't the employer simply, under the agreement, fiddle the shift time, start the night shift at 1 minute to 6 and pay nothing?
PN669
MR LE MIERE: Because under the agreement, you get paid according to the - - -
PN670
COMMISSIONER LEWIN: Time at which you work.
PN671
MR LE MIERE: Paid according to all work done during the rostered working hours.
PN672
COMMISSIONER LEWIN: I see.
PN673
SENIOR DEPUTY PRESIDENT WATSON: You get paid an allowance.
PN674
MR LE MIERE: Yes, so you - - -
PN675
COMMISSIONER LEWIN: I see. But is it just a misconstruction all of this? There is no allowance payable if you want to create an analogy with the afternoon shift. There is no analogy between the logical treatment of the night shift scenario and the afternoon shift scenario. Because if it starts at 1 minute past 12 you get nothing, under the agreement.
PN676
MR LE MIERE: Yes, yes. Until you go to 6 o'clock, that is so. But of course - - -
PN677
COMMISSIONER LEWIN: Yes, but in the way in which the Senior Deputy President addressed the issue, if you're saying that he was under the impression that one would get some sort of an allowance between noon and 6 if the shift started, there is no analogy, is there? The point that I'm making, that there is no analogy between his treatment of people working on night shift, whether they start at 1 minute before 6 or one minute after 6, and the way in which the agreement treats employees working on afternoon shifts.
PN678
MR LE MIERE: Under the award it is the time at which the shift commences which determines any loading which is payable. So, if you simply started at 1 minute earlier then there is no loading payable.
PN679
COMMISSIONER LEWIN: That is right.
PN680
MR LE MIERE: That applies both in respect of the night and the afternoon shift.
PN681
COMMISSIONER LEWIN: I understand that.
PN682
MR LE MIERE: So the point made, just the same argument applies in relation to the afternoon and the night shift.
PN683
COMMISSIONER LEWIN: With one exception, that if you start at 5 minutes to 6 under the agreement you get paid for the hours worked after 6 o'clock, the allowance prescribed by the agreement.
PN684
MR LE MIERE: Yes.
PN685
COMMISSIONER LEWIN: If you start at 5 minutes after 6 you get paid the allowance as prescribed by the agreement.
PN686
MR LE MIERE: Yes, yes.
PN687
COMMISSIONER LEWIN: An employee starting work at 5 minutes past 12 under the agreement gets paid nothing until 6 o'clock.
PN688
MR LE MIERE: Yes.
PN689
COMMISSIONER LEWIN: So, under the agreement, it matters not whether you start at 5 minutes before or 5 minutes after.
PN690
MR LE MIERE: Yes, I'm sorry. That is right, Commissioner, and that - - -
PN691
COMMISSIONER LEWIN: If you are a night shift worker, that is right.
PN692
MR LE MIERE: If I'm understanding you, Commissioner, that - - -
PN693
COMMISSIONER LEWIN: But it does matter, significantly, if you are an afternoon shift worker.
PN694
MR LE MIERE: Under the award, that is right, that - - -
PN695
COMMISSIONER LEWIN: Well, and under the agreement too.
PN696
MR LE MIERE: Well, under the agreement it doesn't matter what time you start it is the hours during which you work that determine whether you get the - - -
PN697
COMMISSIONER LEWIN: Yes, the night shift. So we are talking about a benefit here, not just semantic congruency.
PN698
MR LE MIERE: Yes, perhaps I will go back a step. The other point that is being made by Mr Uphill is in relation to the shifts which apply here and they're 12 hour shifts.
PN699
COMMISSIONER LEWIN: Yes, and I saw that, 6 to 6, 6 till 6?
PN700
MR LE MIERE: So, under the agreement, there is going to be a day or a night shift. They're not the three shifts.
PN701
COMMISSIONER LEWIN: So you say that, on the material before the Senior Deputy President, the detriment, or potential detriment, of the absence of the afternoon shift allowance was not relevant?
PN702
MR LE MIERE: No.
PN703
COMMISSIONER LEWIN: Because all of the shifts would be either day shifts or night shifts.
PN704
MR LE MIERE: We do say that, if it please the Commissioner, and perhaps at harking back to a point we were making earlier, and I don't wish to loose sight of the point that we made earlier and which is fundamental here, and that is it doesn't matter whether the Senior Deputy President was right or wrong on his analysis of these points. It doesn't matter whether the Senior Deputy President was right or wrong on the construction of an award provision, or a construction of the agreement.
PN705
COMMISSIONER LEWIN: Yes, the issue is did he construe it at all?
PN706
MR LE MIERE: Well, we say plainly he - - -
PN707
COMMISSIONER LEWIN: That might raise issues of both natural justice and - - -
PN708
MR LE MIERE: I'm sorry, your Honour?
PN709
COMMISSIONER LEWIN: Might raise issues of both natural justice and jurisdictional error.
PN710
MR LE MIERE: Well, natural - - -
PN711
COMMISSIONER LEWIN: Other jurisdictional error.
PN712
MR LE MIERE: Yes, so far as natural justice is concerned there is not and, in our submission, could not be any argument made about natural justice. There is nothing - so taking the first point, there is no ground of appeal relating to breach of natural justice. Secondly, there could not be one because there is nothing that one can point to that the Senior Deputy President had some regard to some material which he didn't identify before the parties. As to other breaches, we come back - other jurisdictional errors, we come back to the nature of a jurisdictional error which may found an appeal under 45(1)(g) and we come back to the matters that are identified in Tweed Valley and Cole and Allied and all the other cases.
PN713
It doesn't matter if the - when I say it doesn't matter, of course I mean it doesn't give rise to a 45(1)(g) jurisdictional error if the Commissioner made some error in the analysis of the provision, if he got wrong what a benefit was under the agreement, or if he misconstrued the award or a particular award provision so as to not appreciate some disadvantage which, on a correct analysis of the award and construction of the award, would reveal some disadvantage.
PN714
COMMISSIONER LEWIN: Yes. No, the issue I think we were discussing is whether or not it had been addressed at all.
PN715
MR LE MIERE: Yes.
PN716
COMMISSIONER LEWIN: But what you say is that - - -
PN717
MR LE MIERE: Well, he has addressed them, he has turned to them.
PN718
COMMISSIONER LEWIN: Well - - -
PN719
MR LE MIERE: The matters that, with respect, the Full Bench are putting to me is whether he got it right or not.
PN720
COMMISSIONER LEWIN: No, no, I don't think so. I think the questioning has been directed towards establishing whether or not the afternoon shift was actually addressed.
PN721
MR LE MIERE: Well, we submit that he - - -
PN722
COMMISSIONER LEWIN: But you say that it wasn't the - - -
PN723
MR LE MIERE: We say it was addressed - - -
PN724
COMMISSIONER LEWIN: There is no error because it wasn't relevant.
PN725
MR LE MIERE: Well, that is right. That is the point - - -
PN726
COMMISSIONER LEWIN: Because the material before him was about the shifts which would be worked and no others.
PN727
MR LE MIERE: Yes.
PN728
COMMISSIONER LEWIN: Under the circumstances there is no jurisdictional error because it wasn't necessary to address it.
PN729
MR LE MIERE: That is so. Mr Uphill makes that point and the Senior Deputy President appears to accept it. Again, whether he would be right or not in that is another matter. He has gone to each of the points that is raised and, with respect, well, I would be repeating what you are putting to me, Commissioner, but he has dealt with that by having submissions from Mr Uphill about it which, if Mr Uphill's submission was accepted, means that that doesn't have - the afternoon shift point doesn't have any relevance and there is nothing to contradict it. Coming back to the point, in a sense that my learned friend was making this morning, it is not as if - - -
PN730
COMMISSIONER LEWIN: Well, it is accepted, I think.
PN731
MR LE MIERE: Yes.
PN732
COMMISSIONER LEWIN: I think Ms Bennett accepts, at some point during the course of the - - -
PN733
MR LE MIERE: That is at paragraph number 66 through to 69.
PN734
COMMISSIONER LEWIN: Yes, it is 12 hour shifts.
PN735
MR LE MIERE: Yes.
PN736
COMMISSIONER LEWIN: On a 6 to 6 basis.
PN737
MR LE MIERE: That is right. And goes on to talk about additional hours. So, again, the way in which the matter is dealt with by Ms Bennett, is to accept, in essence, what has been put by Mr Uphill and then move on to talk about additional hours. So one, again, can see that on the material before the Senior Deputy President - or perhaps I am going further than I need to say, in saying that in our submission he was right - - -
PN738
SENIOR DEPUTY PRESIDENT WATSON: Well, I think we understand what you are saying at least about the - at least I do anyway, in relation to the afternoon shift allowance. You are saying that the material in relation to the practice of rostering the shifts was such that it didn't attract specific consideration.
PN739
MR LE MIERE: Yes. That is so and, of course, the whole - or an important part of this whole agreement involves, as it were, restructuring of the shifts, which has an advantage to the employees, in two respects at least, it enables them to earn additional income in that they can work additional hours whereas, of course, under the award, shifts are only eight hours. And I can see the - one must accept that the company will organise its business so that when once the eight hours were worked, additional employees would be engaged rather than, for example, giving extra hours to an employee and having to pay them at overtime. Now - - -
PN740
DEPUTY PRESIDENT BLAIN: Mr Le Miere I understand that the agreement provides that shifts can be worked up to, but not exceeding, 12 hours. There could be less.
PN741
MR LE MIERE: Yes, there could be. Although I think Mr Uphill says to the Commissioner in - I think it is around 40: The Shifts being worked - well I suppose the answer to you, Deputy President, yes, theoretically there could be less than 12 hours.
PN742
Now the next matter that was addressed by Ms Bennett at the second dot point in paragraph 5:
PN743
it was possible to work extra hours at ordinary rates by agreement.
PN744
and then at paragraph 7, that is addressed by the Senior Deputy President, in relation to voluntary additional hours, Mr Uphill submitted that:
PN745
where the employer required the hours to be worked, overtime was to be paid. In relation to the -
PN746
and he goes on to the first aid allowance.
PN747
SENIOR DEPUTY PRESIDENT WATSON: What does required mean in that context? An employee could work overtime hours not required by the employer?
PN748
MR LE MIERE: No, the difference is - I think what Mr Uphill was explaining in the course of argument, was that it could be an agreement reached between the employer and the company, to work additional hours. That could be something that could be reached some time in advance, a long standing arrangement that they would, by agreement to work additional hours.
PN749
Now it could be a situation where the company, some - whether it be unforeseen circumstance - something occurs where the company requires an employee to work additional hours on a particular occasion. Now in that circumstance overtime would be paid. That is the point. It is the difference, in essence, between the arrangement whereby the employee simply works - has facility to work the additional hours, and that where the company, because of some particular situation, requires them to be worked.
PN750
One important point, though, perhaps was overlooked, indeed wasn't - I think in fairness, wasn't agreed to by Mr Uphill either, is that the award also has a provision which enables extra hours to be worked by agreement, and that is 15.3.2. So that provides that the ordinary hours - I am sorry -
PN751
permits a change in ordinary working hours by agreement between the employer and the majority of employees on a specific site and it is to allow ordinary ...(reads)... also reach agreement in relation to consequential variations in the payment of ordinary hours, leave and provisions of the award.
PN752
So they can agree that provision, to work up to 12 hours at ordinary rates. So that is a facility which could be made under the agreement - sorry, under the award. And, of course, in a notional sense, there was such an agreement between the employer and the majority of employees at a particular site. It is reflected in the agreement that was made. I am sorry, I do Mr Underhill a disservice. I am told he did refer to it at the transcript, paragraph P-N74.
PN753
SENIOR DEPUTY PRESIDENT WATSON: Page 74?
PN754
MR LE MIERE: Paragraph P-N74.
PN755
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN756
MR LE MIERE: Or P-N75. And so he starts referring to it in 74 and then goes on in 75. So that is a, say, an arrangement that could be made under the award as well as under the agreement.
PN757
COMMISSIONER LEWIN: It is hard to see where that takes us, though, really. Given clause 15 of the award, clause 15.1.
PN758
MR LE MIERE: Yes, perhaps in one sense - I was going to say the easy answer, but the answer I want to give to the Commission, of course, is it is not a matter that the Full Bench needs to grapple with. It is a matter for the Commission, for the Senior Deputy President to do this evaluation. All the Full Bench needs to see is - - -
PN759
SENIOR DEPUTY PRESIDENT WATSON: Well, we might be just agreeing about that. We might just be agreeing about that and it is hard to see where it takes us.
PN760
MR LE MIERE: Yes, it might be so. Now the point I am making is that the Senior Deputy President - and perhaps if I could just tick off the rest of the points, he then deals with - and not for the purpose of saying that the Senior Deputy President got it right, because in our submission that is not an issue. He then deals with the alarm resetting allowance. That is the next point that is raised by the union in paragraph 5 and that was - sorry, I have left one out: the first aid allowance. That was dealt with by an undertaking being given. It seems there had been a typographical error in putting the wrong amount in the agreement by some sense, and that was dealt with by an allowance, by an undertaking being given. So we can skip over that one.
PN761
And then there was no alarm resetting allowance. Well, there was a dispute between the union and the respondent as to whether or not that allowance was now included in the classification - of each of the classifications under the award and the agreement, and Senior Deputy President addressed that in paragraph 9 of the reasons where he says in the last sentence of paragraph 9, 4 lines from the end of the paragraph:
PN762
In relation to the alarm resetting allowance I note the dispute as to whether an amount is now included in the classification structure for this job. I am not prepared on the disputed facts in relation to this matter to reject the agreement.
PN763
SENIOR DEPUTY PRESIDENT WATSON: Is there a valid approach to satisfying oneself? There are disputed facts. They shall not be determined, we will just leave it.
PN764
MR LE MIERE: What he is saying is that he is not satisfied that there is any disadvantage. Now, of course, it is a matter for the Commission to determine whether there is any disadvantage and he is not satisfied that there is.
PN765
SENIOR DEPUTY PRESIDENT WATSON: Is he saying that? Is he saying that he is not prepared on the disputed facts?
PN766
MR LE MIERE: Well,
PN767
I am not prepared on disputed facts, in relation to the matter, to reject the agreement.
PN768
So he is not satisfied that there is a disadvantage.
PN769
SENIOR DEPUTY PRESIDENT WATSON: Well, he hasn't even investigated that issue has he? The disputed facts before him?
PN770
MR LE MIERE: That is right.
PN771
SENIOR DEPUTY PRESIDENT WATSON: Is he not obliged to apply his mind to those disputed facts and reach some level of satisfaction in respect to them?
PN772
MR LE MIERE: Well, he has got the material before him, being the submission that has been made by the respondent and he doesn't reject it. He is not obliged to make a finding that there is an advantage. His inquiry is whether there is a disadvantage and he is not satisfied he has not made a finding that there is a disadvantage. That is a proper approach.
PN773
SENIOR DEPUTY PRESIDENT WATSON: If that approach were applied more broadly a member could say: Well the employer said there was no disadvantage and the union said there was a disadvantage. They had various arguments in support of the disputed factual matters. I am not prepared on the disputed facts to find that I am not satisfied that there is no disadvantage.
PN774
MR LE MIERE: Well, with respect, your Honour, he couldn't do that at a global level. He can't simply say, as I think you are putting to me, your Honour - I apologise if I mistake it - - -
PN775
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN776
MR LE MIERE: - - - that he can't simply say "Well, one says the test is passed and one says it doesn't. I am not satisfied it hasn't been passed." What he is doing - and in our respectful submission, indeed the Senior Deputy President goes into the matter at a level beyond that which he is required to. He is not required to undertake a line by line analysis or evaluation, but he does that. He does that because of the way the matter proceeded before him with the union making submissions and putting up points which were to establish, as where the union sought to establish that there was some lowering reduction of conditions.
PN777
And so the Senior Deputy President's inquiry, as it were, is one informed by the arguments that are being put by the union. His adopting approach of informing himself by the arguments that are put up and then determining whether or not he is satisfied, on balance, taken as a whole, whether there is any reduction in conditions of employment.
PN778
SENIOR DEPUTY PRESIDENT WATSON: But absent any beneficial reason in the agreement, and I understand the wage rates of those in the award at the relevant time, would only require a disadvantage in respect of one matter, to result in an overall disadvantage rule.
PN779
MR LE MIERE: Well, it is not correct that there is no advantage under the agreement. I mean, there are advantages pointed to. For example, one of the matters that we haven't got yet to - the annual leave. There is an - I think the matter is put - If I can find the reference.
PN780
SENIOR DEPUTY PRESIDENT WATSON: My problem is that I have gone to the statutory declaration which discloses nothing.
PN781
MR LE MIERE: Yes.
PN782
SENIOR DEPUTY PRESIDENT WATSON: I have then gone to the decision of Senior Deputy President Lacy which refers to one matter which doesn't, I must say, immediately make sense to me because I don't have sufficient knowledge of the matter. So, on the materials, that seemed to be the extent of the advantage.
PN783
MR LE MIERE: As I understand the form of the statutory declaration, your Honour, the form of it is that you tick whether there is a reduction in the overall conditions of employment and if there is not, you don't answer the next parts of the questions.
PN784
SENIOR DEPUTY PRESIDENT WATSON: No, that is not correct.
PN785
MR LE MIERE: 6.4 says - - -
PN786
SENIOR DEPUTY PRESIDENT WATSON: It is a common misapprehension, but one which I wish parties would learn about quickly.
PN787
To be answered only if there is any reduction.
PN788
"Any" highlighted in the statutory declaration on the file
PN789
reduction in the terms and conditions, but not resulting in a reduction in overall terms.
PN790
MR LE MIERE: Yes, but the point I am making, your Honour, is that in this case the employer said there was not any reduction. It wasn't a case where the employer is saying there are some reductions, but there are some benefits and taken as a whole, there is no overall - on balance there is no reduction. What is being said is that there are no reductions. Now, I stand to be corrected, but that I think is consistent with the way in which the form is then completed.
PN791
SENIOR DEPUTY PRESIDENT WATSON: Mm hm.
PN792
MR LE MIERE: The point I was going to make was the annual leave loading is dealt with in paragraph 8 of the reasons. After the alarm resetting, and then the minimum call out of 3 hours. I might deal with that on in passing. This was the no minimum payment for public holidays. That was dealt with, in a sense, in the course of argument, where it appears the union had simply overlooked that it was - the minimum payment was in a different clause than under the award and that wasn't taken any further.
PN793
Now, in relation to annual leave in paragraph 8, the Senior Deputy President says:
PN794
In respect to annual leave he, that is Mr Uphill, submitted that while there was no 17-and-1-half per cent loading, the annual leave clause provided for payment at the ordinary rate of pay and not of payment for ordinary time worked.
PN795
He submitted that this was a benefit to employees because most employees would get more, even though the additional week for 7 day shift workers was not in the agreement. So the hours are, as I understand the figures under the award, the ordinary worker would be paid an equivalent, in effect 152 hours, because the shift rosters here and the change - instead of being paid, as it were, ordinary time and under the agreement you are paid at the ordinary rate of pay which will include additional payments that are made on average. So that you get more for annual leave payment under the agreement than under the award. That was a point made by Mr Uphill and which they accepted, by the Senior Deputy President.
PN796
So there is an instance where it not only answers the particular point made in relation to annual leave loading, but is in fact, as it were, a specific benefit under the agreement accruing to the employees. Now, I mentioned the minimum payment for public holidays. To say that was simply that the provision was to be found in a different clause in the agreement as dealt with by the Senior Deputy President. The annual licence repayment - in the course of argument Mr Uphill, for the respondent, pointed out that in Western Australia licence renewals were every 3 years and hence that a payment in the second and third years didn't have any application in this instance. And that, again, is all accepted by the Senior Deputy President.
PN797
Overtime meal allowance is another matter that is dealt with and that is dealt with by the Senior Deputy President in 8 where he says - the last sentence:
PN798
He, Mr Uphill, also submitted the overtime allowance was only payable when no notice of overtime was given.
PN799
And, in this instance, because of the workers working 12 hour shifts - of course they are working a 12 hour shift, so had they been working that under the award, because they have got notice of the shift, they don't get the meal allowance anyway. So, that is not applicable. The RDOs, in paragraph 12 of the reasons, the Senior Deputy President says:
PN800
The agreement contains a 38 hour week, and the fact is it does not compel, and the fact that it does not compel RDOs is not, in my view, a disadvantage.
PN801
So, those are all of the factors that were pointed to. The Senior Deputy President addressed each one of them, that were raised by the union, and found that there were no disadvantages. And my submission accepted, expressly at least, that there was one benefit to the employees under the agreement over the award in relation to the leave. It doesn't expressly, I think, refer to the advantage from the 12 hour rosters that accrues, but that is another fact of the matter.
PN802
Now, I have dealt with the ordinary hours and overtime argument in the course of going through these matters. There has, in the course - or in the written submissions, the appellant has put forward a document under cover of the letter of 6 June which sets out some schedules. My learned friend didn't refer to them as I recall, this morning, but they were sent to the Commission - to the Full Bench and I want to make some brief reference to them. It is not apparent what they are.
PN803
The first one is headed: Security Officer level 1, Monday to Sunday, 10 hour shifts. And then they put in various permutations and purport to calculate what a person would receive under the award and what they would receive under the agreement. Now there is no evidence that these represent shifts that are, were or are likely to be worked by employees of the respondent. In the absence of such evidence, they are quite totally meaningless. They are merely theoretical. And it is worse than that, we would say, because they seem to postulate something that doesn't - not only is there no evidence that it exists, but it is hard to envisage how it would.
PN804
It provides as we read it, it talks about a 10 hour shift. Now, under the award, we read it, there are 8 hour shifts. So how somebody would be working a 10 hour shift under the award, one doesn't see. Under the agreement they are 12 hour shifts. So again it is not only theoretical, it is worse than that because it doesn't seem to have any connection with reality at all. Mr Bull drew my attention this morning to a decision of the Full Bench in Boroondara City Council Local Area Workplace Agreement and I hand up three copies.
PN805
SENIOR DEPUTY PRESIDENT WATSON: Yes, sorry Mr Le Miere.
PN806
MR LE MIERE: Before I go to that, Mr Bull reminds me, whilst I said that the schedule talks about a 10 hour shift, it looks as if it, in fact, talks about a 10.85 hour shift, which again appears to be even more theoretical and removed from reality. Now the reason going to the - - -
PN807
SENIOR DEPUTY PRESIDENT WATSON: Now, would that be 12 hours with relevant breaks within it?
PN808
MR LE MIERE: Well, it just says - well it is 10.85. I don't know what it is, your Honour.
PN809
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN810
MR LE MIERE: Not only that, I say it comes without any evidence. There is no evidence that there was such a shift worked by employees of the respondent, that there would be or had been or was likely to be.
PN811
SENIOR DEPUTY PRESIDENT WATSON: Well, if it was in effect 12 hour shifts, there is evidence - - -
PN812
MR LE MIERE: Under the agreement.
PN813
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN814
MR LE MIERE: Yes, but if the award was to apply then they simply wouldn't work 12 hour shifts.
PN815
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN816
MR LE MIERE: It would be uneconomic. They would work - I mean there is one of the points - perhaps I might pause to say, one of the fundamental benefits of the agreement to employees is that they can work a 12 hour shift and that increases their earning capacity. They can work a 12 hour shift. They can work seven 12 hour shifts within a week to give the - so you can work 84 hours over a fortnight, but you can do them 7 in a week to increase your earning capacity over and above what you could under the award. And, secondly, that way, in effect have in a sense, a 7 day on 7 day off sort of working arrangement which gives the employee in his expression, more disposable or perhaps useable leisure time in that way. But under the award - - -
PN817
SENIOR DEPUTY PRESIDENT WATSON: That is a matter of considerable debate in evidence, as well, Mr Le Miere.
PN818
MR LE MIERE: But under the award, of course, because they are 8 hour shifts, workers - the employees will simply be employed to do an 8 hour shift and after that, another employee will be employed. You won't have somebody employed to do 12 hours: 8 hours at ordinary time and 4 hours at overtime, and that is part of the total unreality of this roster here. The point I was going to make, perhaps just very briefly, relating to the Boroondara City Council case which is print R8158, as the decision of the Full Bench. As the decision says in the first paragraph:
PN819
it was an appeal by the union against the decision to certify two agreements
PN820
which are there named. The decision refers to various grounds of appeal until finally, if you get through to page 7 of the print in paragraph 14 we get to the final ground of appeal. It says in paragraph 14:
PN821
The final ground of appeal is that the Commissioner erred in being satisfied pursuant to section 170LT(3) that the agreements passed the no disadvantage test. It was contended that the Commissioner ignored evidence concerning changes to the spread of ordinary hours brought about by terms of the Business Tendering Agreement. Attention was not drawn to any evidence concerning the Crossing Supervisors' Agreement.
PN822
I pause to say, those are the two agreements that were certified. The Full Bench continued:
PN823
The evidence in relation to the business tendering agreement consisted of a statement in cross-examination ...(reads)... in the ground of appeal, based on the alleged failure to properly apply the no disadvantage test.
PN826
Now, the material put up by the appellant on appeal is, of course, a long way short of what was attempted in the Boroondara case. At least in the Boroondara case it was in the form of evidence, not just something - not just a document put up on appeal. But even then, the Full Bench rejected it on the basis that it was merely theoretical. Now, in this case, it is theoretical and, as we say, highly unrealistic and has no practical significance in all the ways put by the Full Bench.
PN827
Many of the individual items one could go through and say are wrong as well. One came to that. I have made reference to the fact that, first of all, the premise that the 10.85 hour shift is worse than theoretical, it is totally unrealistic under the award. Employees simply wouldn't operate a 10.85 hour shift.
PN828
The method of calculation, it would seem, for the 10.85 is simply to take a 76 hour week and divide it by seven to get to that 10.85 and that seems to be the only basis for a 10.85 hour shift. It is said to be that there would be a 25 hour shift loading. Well of course, that comes back again to the point that the Senior Deputy President addressed, not if the shift was commenced 1 minute before 6, which is what could, and therefore would, be done if the award was to apply and there would be no night shift allowance. The overtime, again, this simply assumes overtime. But, once more, that is entirely theoretical and, again, uneconomic and unrealistic to assume that in those circumstances the employee would arrange things in this way.
PN829
There is a meal allowance allowed for, an alarm reset allowance, notwithstanding that the Senior Deputy President found that neither of them would be allowable. In this case a meal allowance, if the 3 hours - if the notice has been given there is no meal allowance and so on. The annual leave loading, once again, this example totally ignores the fact that under the agreement the annual leave loading is worked on the ordinary pay rather than the ordinary rate of pay and will in fact be, for most employees, will be greater under the agreement than under the award. Now I, again, by going through and referring to each individual items I run the risk of giving some legitimacy to this document which it doesn't bear.
PN830
Once again, perhaps the last comment I make is a comment I should make in relation to many of the submissions I've made this afternoon, and that is that by, as it were, arguing the case that the Senior Deputy President was right in each of the findings and conclusions he made, I run the risk of confusing the primary argument that we put to the Full Bench - - -
PN831
SENIOR DEPUTY PRESIDENT WATSON: You don't want us to get to that point.
PN832
MR LE MIERE: I don't want you to get to that point.
PN833
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN834
MR LE MIERE: Because in my submission you're neither obliged nor entitled to get to that point.
PN835
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN836
MR LE MIERE: The question is whether the appellant has demonstrated not that Senior Deputy President made some error in his interpretation of a provision of the award and his interpretation of a provision of the agreement, or some error in his application of the award to a particular situation or a comparison between a particular provision of the award and a particular vision of the agreement. All of those things, if there were any errors, are plainly errors within jurisdiction. What the appellant must demonstrate is that Senior Deputy President misunderstood, misconstrued his jurisdiction, that he applied some different test, some different test than he was required to. Not that he applied the test incorrectly in that he came to a wrong conclusion.
PN837
So we say, in essence, the grounds of appeal themselves simply don't disclose, don't allege, an error that is a jurisdictional error. Other than that, if it please the Full Bench, we rely upon what we've said in the written submissions.
PN838
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN839
DEPUTY PRESIDENT BLAIN: Mr Le Miere, I take it from your submissions in relation to the statutory declaration that there was no disadvantage at all in the agreement compared to the award and I wonder if it is your submission also that the Senior Deputy President, in his decision, took an approach which was consistent with that?
PN840
MR LE MIERE: Yes, your Honour, he did in that he had all that material before him and then he had the argument from the union that effectively said: No, that is not right. There are disadvantages on a line by line basis by looking at these lines, these particular points. That it said amounted disadvantages and the Senior Deputy President addressed each one of them and found that none of them amounted to a disadvantage. So the Senior Deputy President found that there was no reduction in conditions. He also pointed, as we said, one benefit. Expressly to one, that was the increased annual leave.
PN841
SENIOR DEPUTY PRESIDENT WATSON: But there was a disadvantage of no leave loading in respect of that?
PN842
MR LE MIERE: I suppose perhaps it is a matter of semantics.
PN843
SENIOR DEPUTY PRESIDENT WATSON: Well - - -
PN844
MR LE MIERE: You could say that there was a disadvantage in the sense there was no leave loading, but it is out-balanced by the fact that the - - -
PN845
SENIOR DEPUTY PRESIDENT WATSON: But the balancing comes later. The statutory declaration, that is the point I was making, refers to any, in highlighted, reduction in terms and conditions and perhaps those who are representing might be aware of that for any future applications.
PN846
MR LE MIERE: Yes. Yes, well, perhaps I'm sorry to be recalcitrant, as it were, your Honour, but perhaps the way in which it was approached is in the way in which, without other guidance, I would approach and that is it is dealing with the same item, annual leave. It is true that under the agreement you don't get the leave loading but we would say you get something better than that. So that you don't get 17 and-a-half per cent loading but you get something better than that, you get your annual leave calculated on the whole point. So - - -
PN847
SENIOR DEPUTY PRESIDENT WATSON: It bothers me, Mr Le Miere. It leaves it as an exercise of judgment for the employer as to what they're going to balance and that could lead to the Commission not being properly appraised of the various matters they're required to consider.
PN848
MR LE MIERE: Yes, I appreciate the point that you're making, your Honour.
PN849
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN850
DEPUTY PRESIDENT BLAIN: So on reflection, Mr Le Miere, was there, in your submission, any disadvantage or one disadvantage?
PN851
MR LE MIERE: My hesitation is that the answer I wish to give is that there was no disadvantage but I'm mindful that his Honour would appear to take a different view of that same principle - of that same point and it is this, that on the one hand, the award provides for a 17 and-a-half per cent loading. The agreement provides - sorry, I will try and put that a bit differently. The award provides that the leave payment should be calculated at ordinary time plus 17 and-a-half per cent loading. The agreement provides that the annual leave payment should be paid at the ordinary pay. Now, the way I think that his Honour is suggesting to me that that should be approached, or might be approached, is that there is a disadvantage and that you don't get the 17 and-a-half per cent loading but there is a compensating advantage in that you get the calculation based on ordinary pay.
PN852
The way in which I say, without wishing to be recalcitrant about it, suggests that it may be viewed in a different way and that is this. There is only one item and that is what is the annual leave pay that you're to be paid and each of them has a different way of calculating it. And in our submission the way of calculating it under the agreement is more beneficial than the way of calculating it under the award and hence, in my submission, there is no disadvantage.
PN853
So the answer to your question, Deputy President, is that we say there is no disadvantage but, if I could have the alternative, if we were to be wrong in that analysis and if it is to be said that you can divide the payment of annual leave into two notional components and one of them is the loading and the other is the ordinary time payment, you don't get the loading under the agreement, and hence that would be a disadvantage, but you get a compensating benefit. That being the calculation being at the higher rate. So we put it in the former way, but if we're wrong in the alternative, we will put it in the second way and we say either way is covered by the Senior Deputy President's decision.
PN854
DEPUTY PRESIDENT BLAIN: Yes.
PN855
SENIOR DEPUTY PRESIDENT WATSON: Good, thank you.
PN856
COMMISSIONER LEWIN: Thank you. How long were you proposing to be, Mr Nolan? We were just thinking of whether we take a 5 minute break at this point.
PN857
MR NOLAN: Why don't we press on?
PN858
COMMISSIONER LEWIN: Sorry?
PN859
MR NOLAN: Why don't we press on, unless you're particularly anxious to take a break? I don't think I will be very long, but I will be finished by quarter past at the latest.
PN860
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN861
DEPUTY PRESIDENT BLAIN: Yes.
PN862
COMMISSIONER LEWIN: Press on.
PN863
MR NOLAN: Press on.
PN864
SENIOR DEPUTY PRESIDENT WATSON: Mr Nolan.
PN865
MR NOLAN: Can I just perhaps first of all address that last point. I think this really illustrates the vice that we've identified and that is the more there has been discussion about some of these particular terms and provisions, the more evident it is that the test that we say that ought to have been applied, one, that indeed is referred to in that people leadership case, namely the identification of the reductions and the benefits, was not applied. It wasn't applied and that has lead, indeed, to the sort of confusion that, if we may say so, has been evident from some of these contentions about these conditions and the most - or one of them, is this one that has been most recently discussed in relation to the annual leave.
PN866
Now, the award says, and the Commission can look at this at clause 19, and in particular 19.3, that:
PN867
In addition to annual leave an officer must receive a loading of 17.5 per cent calculated ...(reads)... must be entitled to the greater amount.
PN868
And it doesn't say anything about a basic rate at all. It talks about ordinary wage and that is, we would have thought, a relevant difference and it would have been necessary in the determination of the reductions and the benefits to identify with some precision exactly what it was that was reduced and what it was that was said to be the benefit. And that has not been approached in the kind of systematic way that we've suggested is really required by the section and for that very reason, that and a number of other issues have become blurred and confused and I take Mr Le Miere's point about the schedule that the union put forward. It was really an attempt as an exercise to look at different award provisions and it can't rise above mere speculation about combinations of rosters and so on.
PN869
But all that does is serve to point up the basic deficiency in terms of the material before the Commission in the first place and that was that there was nothing that allowed the Commission to come to grips with the test under section 170XA. And you have the situation that your Honour, the presiding judge, has pointed to where the statutory declaration said there was no reduction at all yet his Honour appears to have approached the matter on the basis that there was at least a reduction, certainly in the case of this voluntary hours clause, but of course he hasn't identified any countervailing benefit. All he has done is identified another provision which we have said, on any view, has got to be regarded as detrimental in itself, that hardly compensates for the fact that the employee is required to work additional hours without the benefit of any overtime payment.
PN870
Of course it is not good enough for Mr Le Miere to say, as he said: Well, this will allow the employees to work more hours. Well, presumably if you had a single time rate that applied day in day out, an employee would theoretically be able to work every hour available in the week to be worked, but one would hesitate before one would regard that as a benefit to be waived in the balance in the assessment of the kind and the application of the kind of test that is in contemplation under section 170XA. Now, equally - - -
PN871
COMMISSIONER LEWIN: Mr Nolan, given your submission that the Commission did not or may not have had adequate information before it in relation to one or more particular conditions of employment, what would your view be to this proposition that it is the responsibility of the intervener to put forward that information to inform the Commission of its view?
PN872
MR NOLAN: Yes, yes. Well, of course, it is not information that is peculiar to knowledge of the intervener. The intervener can only do what was done and point to what are apparent deficiencies in the process. It is up to, ultimately, the applicant for approval to satisfy the Commission and, more importantly, it is up to the Commission itself to be satisfied that the statutory test has been met. And that is not a responsibility that can be palmed off, as it were, on to an intervener. It is a statutory test that needs to be satisfied independent of whether an intervener turns up or not, on the approval process. So there is that dilemma or difficulty with this issue of annual leave. The shift penalty is the same issue. One looks at the agreement, the concession is made, there is no afternoon shift.
PN873
Now, to say that, well, that is dealt with by the fact that afternoon shift has been abolished and we've only got day shifts and night shift is no answer to the question that the penalty that ordinarily applied when an employee worked during those afternoon times has been dispensed with. And in fact, when one looks at the clause 21.4.2 and 21.4.3 of the agreement one can take issue with the contention that you get paid if you work any of the hours between 6 am - 6 pm and 4 am because when one looks at the definition of night shift that attracts the 15 per cent penalty shift in 21.4.3 that would seem to suggest that it applies only to a shift which is commencing between 6 o'clock and 4 am in the morning.
PN874
So that if your shift, taking the example of the 1 minute to midnight case, if you commence work at a minute to 6, arguably, you're not entitled to the 15 per cent allowance because it applies to night shift and if that expression has the same meaning as 21.4.2, it only applies to a shift commencing between 1800 hours and 400 hours and so that is just another example of the confusion, the lack of clarity, that has really acted as an impediment to the statutory tests being articulated and applied in any way, shape or form that amounts to them being satisfactory.
PN875
So they're two examples. I've already gone on at some length about the voluntary hours provision and all of these really become matters for speculation in the absence of satisfactory evidence which allows the test to be looked at confidently and the test to tackled in a way that can only be approached on the basis, that is, of proper material. And so all of those matters combine to really under-cut the application of the test in this circumstance and to really underscore what we've put in our submissions.
PN876
And of course, not least of which is the matter to which your Honour, the presiding judge, referred to again at the end of paragraph 9 where his Honour said he wasn't prepared to - or he was in no position to make a decision about a particular issue because of the disputed facts in relation to the matter that was the subject of that issue. So those, we say, are more than sufficient to really drive home the point that we make. Perhaps there are a couple of other issues, briefly. Insofar as the additional hours clause was said to be comparable to clause 15.3.2 in the award we say that that is a submission that ought to be rejected because the two address entirely different issues.
PN877
One is an open-ended requirement to keep working ordinary hours. The other one is simply an adjustment or a re-jigging of the hours within the framework of the rostering provisions available under the award. Now, a couple of other points may be made. I've made the point already about the absence of afternoon shift but could I say that there is no question there of some sort of roundabout making up for the swing of the absence of afternoon shift. It is simply a matter that is not addressed and needs to be addressed to be consistent with - to confirm with the statutory test.
PN878
Likewise, no assistance can be gained by referring to those previous proceedings before Senior Deputy President Lacy. There is simply not enough material to come to any sensible view about the significance of those, in fact the material would all tend to the contrary view. Now, on this other issue, the statutory issue of the state of satisfaction, if you like, of the Commission. It should be noted that the requirement of the Commission to be satisfied in fact was a provision equally of section 170NC under the old - the former Act and curiously, the Full Court in Tweed Valley v Ross didn't pay much attention to that issue of satisfaction, or didn't appear to pay much attention to the satisfaction, as such. What it paid attention to was whether or not the statutory test had been complied with with respect to, what was then, the no disadvantage test.
PN879
But to the extent to which a state of satisfaction somehow or other entails something different regarding the no disadvantage test, one might usefully compare those words in section 170LT(1) with the comparable obligation upon the employment advocate to approve an AWA under section 170VPB(1).
PN880
COMMISSIONER LEWIN: Sorry, you might have to say that again please?
PN881
MR LE MIERE: Sorry. It is not made any easier by my blocked up nose. 170V, for Victor, P, for Peter, B, for Brown, VPB, 170VPB. That is the comparable provision that allows the employment advocate to approve an AWA and that, interestingly, says:
PN882
The employment advocate must approve an AWA for which a file and receipt has been issued if the employment advocate is sure that the AWA passes the no disadvantage test.
PN883
Now, can it sensibly be suggested that whether or not the no disadvantage test has been satisfied is different in the hands of the employment advocate than in the hands of the Commission. Made all the more curious by the fact that if the employment advocate is not sure, of course, he can then refer it to the Commission and the Commission then has to determine whether or not it meets the no disadvantage test.
PN884
So it is possible, I suppose, to postulate that there are three different tests that can apply then, whether or not the no disadvantage test has been met. That can hardly be consistent with the statutory intention to provide some sort of reassurance to employees that there will be a consistent standard, one would have thought, applied in the event that any agreement or AWA is propounded that proposes to depart from the safety net award. That, we would have thought, is sufficient to really deal with that issue and say that this question of subjective satisfaction really is something that doesn't really have any role to play so far as the application of the test in 170XA is concerned.
PN885
COMMISSIONER LEWIN: It might just be a parliamentary expression and an order of confidence.
PN886
MR NOLAN: What, in the employment advocate - - -
PN887
COMMISSIONER LEWIN: In the institutional arrangements for the approval of various instruments.
PN888
MR NOLAN: Well, we know that that couldn't possibly be the case, Commissioner, but it would be a stretch, to use the vernacular, to suggest that there ought to be a different test applied in the different contexts. So - - -
PN889
COMMISSIONER LEWIN: Well, the OEO was a relatively new institution at the time.
PN890
MR NOLAN: Could be expected to have the - - -
PN891
COMMISSIONER: So perhaps there was a sort of a wicket keeper - - -
PN892
MR NOLAN: The kind of baggage, say. Yes, well, one would have thought if that was intended it would have been made clearer in the statute, Commissioner. So, we say that there is nothing in the suggestion that somehow or other there is an additional gloss or some sort of gloss on the test that allows for an additional degree of elasticity or subjectivity in coming to determine whether 170XA has been complied with. Now, it seems that perhaps the other issue is this issue of the union approbating and reprobating, as it were.
PN893
We would reject the submissions that have been made on that score and say that it wouldn't be at all surprising for the union to go along to urge the Commission to make an agreement of a particular kind and become a party to it, even if it wasn't satisfied that the agreement as proffered was all it ought to have been. Because, of course, the flexibility available to the Commission in accepting undertakings of the contest - the approval process would permit the union to go along and say: Well, look, we're not happy about this particular provision.
PN894
And achieve what was achieved in respect to some of the issues in this case, namely, the employer making an undertaking that then has the status of a provision of the agreement and therefore, altering in a significant way, by reason of the undertaking, what was initially in contemplation for certification. And so that degree of flexibility really allows the union to go along and make suggestions, suggestions which may indeed be accepted and put into a form of undertaking.
PN895
Now, if the union goes along with those kinds of suggestions in mind and the suggestions are not taken up, well, it can't be said the union hasn't endeavoured to address legitimate concerns and it can't be said that the union - or it shouldn't be said the union deprived of a right to appeal by reason of its simple participation in the proceedings, with a view to become a part of the agreement if, all other things being equal, the agreement is capable of certification. I think I've really said probably as much as I want to say on the error of law point and, may it please the Commission, perhaps one final comment on the Just Cuts decision.
PN896
True, it is, that Just Cuts was concerned with a refusal to certify the agreement but, of course, the matters discussed on appeal fell into two categories. One, that dealt with the house and the keg sort of issue but the Full Bench went on to say: Well, is the thing, capable of certification? And zeroed in on a specific provision but the Bench itself said was it, or provided a ground for refusal in that mandatory sense because there was no apparent countervailing benefit that made up for the obvious detriment involved in that dispute settlement clause in the agreement. So really Just Cuts deals with two issues and it is the last of those issues, I think at paragraph 19 of the decision, that I was concerned with, not the earlier issues of the nature of the appeal which, admittedly, is quite a different appeal in the circumstances where there has been a refusal to certify. Those are the submissions that I would seek to make in reply, may it please the Commission.
PN897
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Nolan. Mr Le Miere, I wonder if I could ask a question arising out of that, to clarify my own mind? What do you say it is about the agreement which prevents the employer from fiddling rosters, as it were, to avoid payment of the 15 per cent night shift allowance under the agreement?
PN898
MR LE MIERE: Yes, rightly, the arrangement under the agreement is that whether the loading is payable doesn't depend upon the time at which the shift commences, it is during the hours worked.
PN899
SENIOR DEPUTY PRESIDENT WATSON: But it has got - - -
PN900
MR LE MIERE: 21.4.3:
PN901
SENIOR DEPUTY PRESIDENT WATSON: But - - -
PN902
MR LE MIERE:
PN903
All work done during the rostered working hours on any shift shall be paid for at the following rates.
PN904
SENIOR DEPUTY PRESIDENT WATSON: Yes, and then the night shift is time plus 15.
PN905
MR LE MIERE: Yes.
PN906
SENIOR DEPUTY PRESIDENT WATSON: But night shift is defined above as:
PN907
Any shift commencing between 1800 and 0400.
PN908
MR LE MIERE: Yes, but if you work - if you commence beforehand, if you commence at 10 to, under the agreement, the first 10 minutes are not payable, the loading is not payable, but after that they are.
PN909
SENIOR DEPUTY PRESIDENT WATSON: How does that follow? The shift commenced - - -
PN910
MR LE MIERE: Because all work done during the rostered working hours.
PN911
SENIOR DEPUTY PRESIDENT WATSON: Yes, but - - -
PN912
MR LE MIERE: The definition - - -
PN913
SENIOR DEPUTY PRESIDENT WATSON: But by reference to the night shift definition.
PN914
MR LE MIERE: Yes, so the night shift - - -
PN915
SENIOR DEPUTY PRESIDENT WATSON: Which means a shift commencing at a particular time.
PN916
MR LE MIERE: Yes. Well, perhaps it could have been put more felicitously but the night shift identifies it is the time between 1800 and 4 am and so the night shift identifies that period and all work done during that period - - -
PN917
SENIOR DEPUTY PRESIDENT WATSON: But that is - - -
PN918
MR LE MIERE: - - - shall be paid for at the following rates. And that is the way it is intended to be applied.
PN919
SENIOR DEPUTY PRESIDENT WATSON: Well, that is exactly what the award says. Not the exact words, I'm sorry, the effect.
PN920
MR LE MIERE: No.
PN921
SENIOR DEPUTY PRESIDENT WATSON: In respect of work performed during those shifts, as defined by the commencement period. There is no material difference. That is clause 13.4.
PN922
MR LE MIERE: Certainly, it is understood that is the way it was explained that it works and that is the way it is intended to operate. That is the meaning of - that is what the agreement is meant to say.
PN923
SENIOR DEPUTY PRESIDENT WATSON: If it meets the definition, commencing before that time all hours within it are paid at the shift rate. But that seems to apply equally to the allowance - to the agreement, I'm sorry. What is a night shift, a shift commencing before a particular time or between particular times?
PN924
MR LE MIERE: I don't wish to be difficult, your Honour, the wording is slightly different, it is not the same.
PN925
SENIOR DEPUTY PRESIDENT WATSON: The wording is slightly different but I couldn't see it as being of any different effect though.
PN926
MR LE MIERE: Well, it is intended to have a different effect. It was submitted that it does have a different effect. It was submitted to the Senior Deputy President that it is intended to have a different effect and it achieves that effect, and that certainly - - -
PN927
SENIOR DEPUTY PRESIDENT WATSON: Was that issue ever addressed before the Senior Deputy President?
PN928
MR LE MIERE: I thought it was.
PN929
SENIOR DEPUTY PRESIDENT WATSON: That the agreement prevents the employer from fiddling rosters in the same manner?
PN930
MR LE MIERE: On reading at paragraph number 40 and 41 it is not spelt out clearly as I have put it to the Full Bench. Mr Uphill simply says that the company doesn't want to get into that type of arrangement and it believes, in the circumstances, a 15 per cent shift premium ought to apply and that is the basis on which mention of that has been inserted into the agreement. So the intention, I accept, your Honour, Mr Uphill has not spelt it out in the way that it has been explained to me and that I've put it to the Full Bench.
PN931
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN932
MR LE MIERE: But that is the effect, we say, where Mr Uphill is saying that the company doesn't intend to get in - - -
PN933
SENIOR DEPUTY PRESIDENT WATSON: Well, it appears to be the intention but not the effect.
PN934
MR LE MIERE: Well - - -
PN935
SENIOR DEPUTY PRESIDENT WATSON: On the way it is written.
PN936
MR LE MIERE: Well, we would say, with respect, it is the way it is written. I appreciate that construction of agreements can give rise to agreement - to disagreement but in 21.4.3 it is:
PN937
All work done during the rostered working hours on any shift shall be paid for at the following rates.
PN938
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN939
COMMISSIONER LEWIN: On any shift.
PN940
SENIOR DEPUTY PRESIDENT WATSON: On any shift and the night shift is specifically defined.
PN941
MR LE MIERE: Yes, but it is the working hours on any shift. So if the hours fall on a shift then they're to be done at that rate. The - - -
PN942
SENIOR DEPUTY PRESIDENT WATSON: Well, a shift is defined not by reference to the hours but by shifts commencing during hours.
PN943
MR LE MIERE: Yes.
PN944
SENIOR DEPUTY PRESIDENT WATSON: I think that is the problem, Mr Le Miere.
PN945
MR LE MIERE: I accept that it is open to that contrary interpretation but we put it to the Full Bench - - -
PN946
SENIOR DEPUTY PRESIDENT WATSON: It is open to the other interpretation.
PN947
MR LE MIERE: It is open to the interpretation that we've put on it, that is the intended interpretation. If - - -
PN948
SENIOR DEPUTY PRESIDENT WATSON: Perhaps there is a basis for variation of the agreement, to make clear an uncertainty.
PN949
MR LE MIERE: Well, if there was any - if any problem should arise, amongst other things of course, there is the grievance dispute procedure, there is the no disadvantage provision in the agreement, if there should be any problem but, as I say, that is not the way the company intends to apply it.
PN950
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN951
MR LE MIERE: That was the import of Mr Uphill's comment to the Commission that the company doesn't want to get into that business of fiddling the rosters and the intent is, as I put it - - -
PN952
COMMISSIONER LEWIN: Is that how it has been applied?
PN953
MR LE MIERE: I'm sorry, Commissioner?
PN954
COMMISSIONER LEWIN: Is that how it has been applied?
PN955
MR LE MIERE: Since the agreement came into effect?
PN956
COMMISSIONER LEWIN: Mm.
PN957
MR LE MIERE: Can I take a moment? Yes, I'm instructed that is the way it has been applied since the agreement came into effect.
PN958
SENIOR DEPUTY PRESIDENT WATSON: Very well.
PN959
DEPUTY PRESIDENT BLAIN: Mr Le Miere, looking at the decision of the Senior Deputy President at paragraph 6, I wonder what your view would be, to the converse, that it was submitted for the employer that it was possible under the award to structure the shift rosters to avoid the payment of the night shift allowance?
PN960
MR LE MIERE: I'm sorry, Deputy President, could you put that to me again, if it is - - -
PN961
DEPUTY PRESIDENT BLAIN: The issue which has been the subject of some discussion recently has been in relation to the agreement.
PN962
MR LE MIERE: Yes.
PN963
DEPUTY PRESIDENT BLAIN: I'm raising to you paragraph 6, the decision, which relates to the award and makes reference there to the possibility that shift rosters could be structured to avoid payment for the night shift allowance.
PN964
MR LE MIERE: Yes. If I understand you correctly, Deputy President, yes, the Deputy President accepted that the terms of the award are such that can be structured in that way. That the Deputy President accepted that the shift allowances clause in the award is such that it applies only to work done on a shift which commences at the designated time. That is the Deputy President accepted that on its proper construction and application the award is such that, in relation to night shift, if the shift commenced at 5 to 6 work done after 6 o'clock does not attract the night shift rate. And the Deputy President said and made the comment that he was familiar with that arrangement.
PN965
COMMISSIONER LEWIN: Well, I just wonder whether or not that is actually a considerable misconstruction of the instrument. But you say that doesn't matter any way.
PN966
MR LE MIERE: We do say it doesn't matter, Commissioner.
PN967
COMMISSIONER LEWIN: Whether he actually applied himself to the issue because it wasn't the practise that was at stake, it was the term of the award in 13.4 that was at stake.
PN968
MR LE MIERE: Yes, well, it was both, with respect, Commissioner. The practise that was being spoken of, of course, is only effective if the construction of the award, which I've suggested, is correct. And that was put forward - - -
PN969
COMMISSIONER LEWIN: Well, what I'm suggesting to you is he didn't really look at clause 13.4.
PN970
MR LE MIERE: Yes. Well, he suggests - what the Deputy President said was that he, in effect, was familiar with it.
PN971
COMMISSIONER LEWIN: Well, familiar with - - -
PN972
MR LE MIERE: He says in the transcript that, in that passage with the exchange with Ms Bennett - sorry, yes, I think it is with Ms Bennett, at paragraph number 65, 66, 67, 68. So Mr Uphill has made the submission earlier about, if I can use the expression fiddling the roster, and then the Senior Deputy President says to Ms Bennett:
PN973
What do you say about Mr Uphill's submission that by simply fiddling the roster you can avoid the night shift penalty and I mean, I've got to say I have seen it done.
PN974
Now, in my respectful submission, the Senior Deputy President is familiar with this industry and it is apparent that, in our submission, when he says: I have seen it done. It is apparent that he is aware of there both the practise and the application of it to the award.
PN975
He is plainly talking about the fact that the award permits, if they call it that, structuring of the roster so as to avoid the night shift. He doesn't spell it out but he doesn't need to because it has been said by Mr Uphill, Ms Bennett is acknowledging it and it is apparent that the Senior Deputy President himself is aware of the practise and implicitly saying he sees it done. He is accepting that that is the proper construction of the award. Now, he doesn't go through and set out the terms of the award and say what the proper construction is because it is not necessary because the parties all agree, before him, that that is what it is and he is advancing, in effect in his view, that is the proper interpretation of the award, that is the award permits it. And the other parties before him are adopting that as common ground so there is no occasion to visit it and consider it and to set it out.
PN976
COMMISSIONER LEWIN: I think what we are really pursuing with you, Deputy President Blain, I think, raised this with you effectively and that is if you're right about the terms of the agreement in relation to the payment of the afternoon or the night shift, if you're right about the terms of the agreement, construing the terminology there. That may be the application of clause 13.4 too.
PN977
MR LE MIERE: I appreciate that point. We say it is not and that I think the - - -
PN978
COMMISSIONER LEWIN: I guess the question that follows is to what extent was the subject addressed for the purpose of the no disadvantage test?
PN979
MR LE MIERE: Yes. Well, it was addressed to this extent, Commissioner, that Mr Uphill has said it is different, to put my words on it, but the summary of it. Mr Uphill has said to the Senior Deputy President - yes, and Mr Bull reminds me it is repeated in paragraph 6 of the decision where the Senior Deputy President repeats:
PN980
Mr Uphill, for the employer, submitted that while it was true that there was no afternoon shift allowance and the night shift allowance was 15 per cent it was possible under the award, by structuring the shift rosters, to avoid the payment of the night shift allowance.
PN981
So, he has set out - that was the submission made by Mr Uphill. The Senior Deputy President sets that out and he accepts - that is the Senior Deputy President accepts that to be right, in paragraph 9.
PN982
So he does consider it, the submissions made by Mr Uphill. The Senior Deputy President in the course of argument then says, in effect, to Ms Bennett, for the union: Well, what do you say about that? And I must say I've seen it. In a sense that is within his experience and knowledge. Ms Bennett, in effect, agrees with it and the Senior Deputy President in his decision says: Yes, that is right. So, without having set out the terms of the award provision and, as it were, approached it as if there was a contested case about its proper interpretation, he has set out the interpretation or the effect of that, said that it is correct and, indeed, that was common ground before him.
PN983
DEPUTY PRESIDENT BLAIN: Mr Nolan, I just want to come back again to something that was raised earlier on which is the process of standing of the appellant under 45.3(b)(a).
PN984
MR NOLAN: 45.3(b)(a)?
PN985
DEPUTY PRESIDENT BLAIN: Yes.
PN986
MR NOLAN: Sorry, I will just remind myself about that.
PN987
DEPUTY PRESIDENT BLAIN: Is it your submission that that provision is not relevant to, or not applicable, to your application in this matter?
PN988
MR NOLAN: Yes, what I said there was that that was really a matter concerned with the grounds of appeal. If you go back and look at the - it is not EEA it is EAA. There is a misprint there and I think that that has to do with the - perhaps I have confused myself now. I thought the one that we discussed before had to do with the freedom of association provisions in the agreement, so it allowed the - yes, it is only on the ground that under subsection 170LU(2)(A) the Commission should have refused it and if you look at LU(2)(A) I think, yes, that deals with the freedom of association provision. So that is really a separate issue completely. But can I just say something about this paragraph 6, and that is that we would, of course, take issue and I think we made this clear with what has been said about that because there is just no consideration at all given to the deletion of the afternoon shift allowance, none at all.
PN989
It is not even addressed so it can't be said it is addressed by implication
PN990
or in passing or somehow or other indirectly. It is just not addressed and so far as the Senior Deputy President made some comments about how he had seen it done, with the reference to the fiddling of the overtime rosters, well, of course, I think we've all seen it done but that didn't amount to any finding about a practise in the industry or anything else. I mean it was a matter of common sense when you look at the provision. It might be possible to do it theoretically, in relation to the commencement of the shift, but if you want anybody to work during the body of the hours between 6 and 4 in the morning you're going to necessarily have shifts that will have to start after 6 o'clock and so will not be amenable to the kind of manipulation that was the subject of the discussion there.
PN991
So, to the extent that it could be done, it can only be done in a limited number of cases any way, even on a theoretical basis. But of course all that is speculation and it was really something that was the subject of, at best, speculation because Mr Uphill said: Well, it would be possible. He didn't say anyone did - rorted the roster or did it as a matter of practise, he just said it would be possible to fiddle the roster and that is something that needs to be appreciated. But, of course, that said nothing at all about the more significant issue which was the abolition of the 15 per cent that just went out the window without any corresponding benefit and that was a matter that was not addressed at all. May it please the Commission.
PN992
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Nolan. We will reserve our decision in the appeal and now adjourn.
ADJOURNED INDEFINITELY [4.29pm]
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