AG2003/6931, Transcript of Proceedings [2003] AIRCTrans 3918 (8 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

AG2003/6931

APPLICATION FOR CERTIFICATION OF
GREENFIELDS AGREEMENT

Application under section 170LL of the Act
by Australian Workers' Union and Golding Contractors
Pty Ltd for certification of the Golding Contractors
Pty Ltd Yatala Brewery Expansion Project Agreement 2003

BRISBANE

11.15 AM, THURSDAY, 21 AUGUST 2003

PN1

THE COMMISSIONER: Yes, could we have the appearances, thank you.

PN2

MR B. SWAN: If it please the Commissioner, Swan, initial B. for the Australian Workers Union.

PN3

THE COMMISSIONER: Thanks, Mr Swan.

PN4

MR M. COONAN: If the Commissioner pleases, I seek leave to appear on behalf of Golding Contractors. With me is MR ETHANESA.

PN5

THE COMMISSIONER: Yes, thank you.

PN6

MR J. NOLAN: If it please the Commission, I seek leave to appear as counsel and seek leave to intervene on behalf of the CFMEU in this matter.

PN7

THE COMMISSIONER: Yes, thank you. Mr Swan, your attitude to the appearance of solicitor and counsel with respect to this matter?

PN8

MR SWAN: As far as Mr Coonan's appearance is concerned, Commissioner, no objection. There is, however, an objection to the application for leave to intervene by the CFMEU.

PN9

THE COMMISSIONER: Yes, thank you. Yes, leave to appear is granted for you, Mr Coonan.

PN10

MR COONAN: Thank you, Commissioner.

PN11

THE COMMISSIONER: Yes, Mr Nolan?

PN12

MR NOLAN: Thank you, Commissioner. I took from what was just said that there was no opposition to my appearing but there is opposition to my client seeking leave to intervene. Commissioner, this application for intervention arises because, as my client apprehends it, the agreement that is now sought to be certified is not a proper agreement for certification. I can canvass in a preliminary way the reasons that this submission is advanced and the interest - - -

PN13

MR COONAN: Well, if the Commission pleases, I would raise at this point we object to the appearance of the application for intervention as well. Any application for intervention must be dealt with strictly in accordance with section 43 and Mr Nolan is going to matters beyond section 43. We would submit that the application deals with certification of an agreement. The CFMEU is not proposed to be a party to the agreement and it has no rights to intervention. And, in fact, the Commission cannot grant an intervention under section 43(2). May it please the Commission.

PN14

MR NOLAN: Yes, well, I was coming, perhaps a little more long-winded than Mr Coonan would prefer, to precisely that issue. And can I suggest - say this, Commissioner; that my preparatory remarks were directed to the validity of the agreement that's sought to be registered and those remarks are germane to the application for intervention, because as you will be aware, sir, notwithstanding the apparent restriction in section 43 of the Workplace Relations Act upon an organisation having certain representational rights in agreement proceedings, it has been held by the Commission, namely by Vice President Ross and by Senior Deputy President Williams, that in circumstances where there is an issue about the validity of the agreement itself the restrictions in section 43 don't apply.

PN15

Now, my understanding of the decision of the Full Bench, consequent upon the decision of Vice President Ross to which I've referred, is that whereas the Full Bench did not in the end have to decide that question on the reference from the Minister it certainly did nothing to disturb the decision that Vice President Ross had made of a Full Bench - - -

PN16

THE COMMISSIONER: Well, as a Member of that Bench, Mr Nolan, - - -

PN17

MR NOLAN: Yes.

PN18

THE COMMISSIONER: - - - as you're aware, that Bench was of the view that the matter before us was whether or not we had jurisdiction to deal with the matter, as you say, on the review of the application from the Minister.

PN19

MR NOLAN: Yes. That's right.

PN20

THE COMMISSIONER: Nothing further could be read into that Full Bench decision other than the fact that we believe we did not have jurisdiction to deal with that matter.

PN21

MR NOLAN: Yes.

PN22

THE COMMISSIONER: We did not address the issue of the section 43(2) matter simply because we held that we didn't have jurisdiction with respect to the substantive application.

PN23

MR NOLAN: Well, that's right. Although, of course, that was an issue that was nonetheless sought to be agitated before the Full Bench.

PN24

THE COMMISSIONER: It was canvassed before us. That's correct.

PN25

MR NOLAN: So what can be said about that, of course, is that it said nothing at all - it did nothing to disavow what either Vice President Ross had said or what Senior Deputy President Williams had said.

PN26

THE COMMISSIONER: It can't be said from that either, Mr Nolan, that the Full Bench would - - -

PN27

MR NOLAN: Expressly approve it.

PN28

THE COMMISSIONER: - - - have agreed - we expressed no view at all - - -

PN29

MR NOLAN: That's right.

PN30

THE COMMISSIONER: - - - simply because, as I say, the issue wasn't before us as far as we were concerned - - -

PN31

MR NOLAN: Yes. So - - -

PN32

THE COMMISSIONER: - - - dealing with the primary application.

PN33

MR NOLAN: I'm sorry?

PN34

THE COMMISSIONER: Because we were dealing with the primary application and because we held we didn't have jurisdiction - - -

PN35

MR NOLAN: That's right.

PN36

THE COMMISSIONER: - - - we didn't deal with it. So nothing further can be said other than the fact I'm obviously aware of the decisions of Vice President Ross and Senior Deputy President Williams but they, in no way, of course, bind other single Members of the Commission.

PN37

MR NOLAN: Yes. Can I hand up to you the other two decisions to which I've - or the other decision to which I've referred, that is to say the decision of Senior Deputy President Williams. And can I also hand up to you a couple of other decisions. There's a decision of Senior Deputy President O'Callaghan and I've got copies for the others at the Bar Table. The decision of Senior Deputy President O'Callaghan is in the Pelican Point Complete Scaffold Contracting case.

PN38

And the other decisions to which I will refer presently include a decision of a Full Bench of the Commission in Berry and Others v Patrick Cargo and the Transport Workers Union and, as I indicated, the decision of Senior Deputy President Williams which was one that expressed agreement, as I understand it, with what Vice President Ross had said about the section 43 qualification. And can I also just for completeness - - -

PN39

THE COMMISSIONER: Well, I think, in fairness - in order, I think, Vice President Ross agreed with Senior Deputy President Williams in terms of dealing with the Grocon matter and then SDP Williams then decided to endorse what Vice President Ross said in the Grocon decision as well.

PN40

MR NOLAN: Yes, sorry. I thought I'd - perhaps I didn't make that clear that they seemed to agree with what had been said. Can I also hand up to you an extract from a decision of Carr J in the Federal Court in Woodside Energy v McDonald. This is an application for interlocutory relief and I've taken the liberty of only extracting the bits upon which I will be relying. And that is to say paragraph 15 of the decision. And these are the only relevant passages that deal with this issue. Paragraph 15 which sets out the summary that Carr J makes of this issue of a single business in Greenfield agreement.

PN41

And at the very end at pages - or paragraph 117, it goes between pages 24 and 25, where Carr J held that so far as there was a serious issue to be tried those issues - and he sets them out at paragraph 117 - included this issue whether the certified agreements were valid; that is to say was each of the respective businesses a new business? And so there is at least that much to be said for the arguability of the issue of single business. And that's described back at paragraph 15 in the judge's decision where he says:

PN42

Section 170LL provides, in summary, that if a relevant single business is a new business that the employer ...(reads)... within section 170LL and should not have been so certified. It submits that CBI and the contractor sued an application -

PN43

and he sets out the numbers -

PN44

... did not establish new businesses when they embarked upon the execution of the work ...(reads)... within the meaning of section 170LL and was, at the relevant time, a new business.

PN45

So that's the passage. Later on he says that raises a serious question to be tried on the interlocutory application. So that, in all material respects, raises an issue virtually identical to the issue that we would seek to raise here. And can I say - can I just hand up to you, can I hand up in Court, a copy of an affidavit of Mr Close. I've got two affidavits, one from Mr Close and one from Mr Ravbar, which is in the form of a draft affidavit, because Mr Ravbar is in North Queensland and was able to be interviewed on the phone for the purpose of providing this statement, but in the short time available to us, was unable to execute the affidavit and send it back to us. Now, can I just read to you quickly what Mr Close says in his affidavit.

PN46

MR COONAN: Well, if the Commission pleases, I've been tolerant to some degree, and Mr Nolan still hasn't come to the point about on what basis he has power or you have power, sorry, to grant intervention under the Act. He has attempted to run his case in this matter as to why the agreement shouldn't be certified, in the guise of an application for intervention. If he's not going to do that then I wish to be heard on the basis of the alleged Grocon decision which he - sorry, the decision which he alleges gives him the right to intervene, and submit again that under section 43(2) that he does not have the right to intervene in this matter and you cannot give him the right to intervene.

PN47

In fact, if he keeps persisting with the argument he has, not only does the application not fall under 43(2); it doesn't fall under 43(1) and we're not even here at all. With respect, we are here. There's an application before you and I again make the submission that he should come to the point about his right to intervention. May it please the Commission.

PN48

THE COMMISSIONER: Yes, Mr Nolan, anything further you've got to put with respect to the intervention arguments to perhaps what may be contained within the affidavits or drafts of these people.

PN49

MR NOLAN: Well, with respect, the material in the affidavit really does go to the intervention argument because it makes out a prima facie case that demonstrates the interest that my client has in the proceeding. And if we can make good the contention that the restriction in 43(2) was really one that does not apply in circumstances where the agreement was sought to be approved is not a valid agreement under the Act, well, then it's necessary for us to make good that contention by reference to evidence at least on a prima facie basis at this stage of the proceedings.

PN50

And it would be impossible for us to make that case, even on a preliminary basis, without reference to the kind of evidentiary material that we seek to rely on in the form of the affidavits of Mr Close and Mr Ravbar, because what they do, each of them, is describe the work that is undertaken by this employer and the employer and the AWU in the application to the Commission nail their colours to the mast in the sense that they say that it's a greenfields agreement and they describe the business in the document that I've got as - - -

PN51

THE COMMISSIONER: Sorry. Can I just clarify which document exactly you're referring to?

PN52

MR NOLAN: I'm sorry.

PN53

THE COMMISSIONER: The actual agreement itself or some of the statutory decs.

PN54

MR NOLAN: I have the application under Division 2 for certification of an agreement and that has with it a letter to you or to the Commission from Mr Hart, the industrial relations manager of Golding. I assume this is taken from the file. Then there's - follows that there's form R28 and I understand that to be the declaration and the declaration of Marina Williams, an organiser of the AWU and then after that there is a copy of what's called the Golding Contractors Proprietary Limited Yatala Brewery Expansion Project Agreement. So I think this is the relevant document taken from the Commission's file.

PN55

THE COMMISSIONER: Yes, sorry, I was just trying to clarify just which part of it you were referring to at that stage.

PN56

MR NOLAN: Well, at this moment I'm just referring to the statement of Marina Williams that comes immediately after the from R28 sort of title page as it were, and that says this:

PN57

The title of the agreement the Golding Contractors Proprietary Limited Yatala Brewery Expansion Project.

PN58

And then it says, part 1, about the application:

PN59

This application is made under Division 2 of Part VIB of the Act.

PN60

Part 2, about the business - and then the question is posed, and this is taken from the form, I assume:

PN61

What is the single business or part of the single business covered by the agreement?

PN62

And then the answer is:

PN63

Building construction work involved in the expansion of the existing brewery.

PN64

And then the question is posed:

PN65

Name of business or place of work, that is, the single business covered by this agreement. This agreement covers work to be performed at the Yatala Brewery site, Yatala, Queensland, at which the business is carried out.

PN66

And then it says:

PN67

Does this agreement apply to the whole or only to part of the single business as defined in subsection 170LB(3) of the Act?

PN68

And then the "part" is crossed out so it reads "whole". And then it says:

PN69

If whole, proceed to part 3.

PN70

And then it says - - -

PN71

MR COONAN: Well, if the Commission pleases, I'll take this chance while Mr Nolan is catching his breath. I must insist again he's going into submissions on the merits. He is seeking intervention on the basis of the Grocon decision. He can't get in unless the Grocon decision is right. I submit that we should be heard on the relevance of the Grocon decision, whether it's right and whether it can be distinguished. If we carry the day on that, then Mr Nolan has no right to be here. His submissions - and I've twice asked for this - should be limited as to on what basis the Grocon decision gives him the right to intervene.

PN72

THE COMMISSIONER: Well, Mr Nolan, as I understand, is explaining why he claims the deficiency, if you like, in terms of the proposed agreement, is consistent or otherwise with the decision of Vice President Ross, particularly in Grocon, and perhaps Senior Deputy President Williams, with respect to Shell Geelong, as I understand what he's putting.

PN73

MR COONAN: If the Commission pleases, there are still, I submit, two separate issues here. The first is he is making submissions on facts which presume that the Grocon decision gives him a right of intervention. It is our submission that the Grocon decision does not give him right. It presumes that if the Grocon decision is right, that if there is an error in the way the agreement was made, then 43(2) doesn't apply and something else does or doesn't, which is part of our submissions. That is the point of law and does not need to go into points of fact or arguments or affidavits about this particular site.

PN74

There is an initial point of law: is the Grocon decision right? We submit it's not and if it's not right and/or can be distinguished, then Mr Nolan has no rights. He doesn't get the right to argue whether the agreement has not been made or made properly. The premise of the Grocon decision is if you haven't followed the provisions of Division 2 or Division 3 as the case may be, then it's not a Division 2 application and therefore section 43(2) doesn't apply.

PN75

THE COMMISSIONER: I'm very familiar with it, Mr Coonan.

PN76

MR COONAN: And what we say, well, that point of law, that is a point of law and we wish to be heard on that because if our point carries the day then it doesn't matter what submissions Mr Nolan wants to make about the agreement and the affidavits and so forth. May it please the Commission.

PN77

MR NOLAN: Well, I don't take issue in a general way with what Mr Coonan has said, but of course this agreement is somewhat different to the agreement in Grocon. What I suggest is that the principle that's established by Grocon really applies to this agreement and if the principle is right, that is to say, if the agreement itself is inappropriate, inapt to be certified, well, then it must follow that the approach taken in Grocon must equally apply to my client in this particular case, and I'm seeking to at least raise on a prima facie basis the grounds upon which that suggestion can be made by canvassing the evidence that we've put forward with respect to the activities of the employer, Golding, in this particular case.

PN78

And I don't think there's anything too extraordinary about doing that, and when I get to the decision of the Full Bench in Berry and Others in the Patrick Cargo case, it will become immediately clear why it's appropriate to take the course that I've taken because the Full Bench in that case, as you're probably aware, Commissioner, took the view that the reference to "single business" in the Act has a particular meaning and that meaning didn't extend to the business as it was described by the employer in Patrick Cargo. And the same can be said for the approach taken by Senior Deputy President O'Callaghan in the Pelican Point case because in both cases - - -

PN79

MR COONAN: If the Commission pleases, I've got to object. I mean, you've got to give Mr Nolan 10 out of 10 for trying to get his case onto the record as much as he can before - - -

PN80

THE COMMISSIONER: Well, he's never been renowned for not trying to push his case. Most people - - -

PN81

MR NOLAN: That's right, and in the face of constant interruptions, I must say. If they went away it would allow me to get it done all the quicker.

PN82

MR COONAN: Well, Commissioner - - -

PN83

THE COMMISSIONER: I don't know too many experienced advocates - Mr Coonan, you've been around this place a long time - who really don't try to get their merit argument when they're trying to get intervention.

PN84

MR COONAN: Correct, Commissioner.

PN85

THE COMMISSIONER: I'm not saying it's necessarily a great practice - - -

PN86

MR COONAN: And there are not too many advocates who don't dispute it either, sir. I mean, I come back to the primary proposition: if Grocon is right - if it's right, then 43(2) doesn't apply. If it's right, then I say again, we're not here. Mr Nolan still doesn't get right to intervention because he only gets right to intervention of 43(1) if there's a proceeding before the Commission.

PN87

THE COMMISSIONER: Do you think this issue is going to finish here in two minutes, Mr Coonan?

PN88

MR COONAN: Well, I hope so, Commissioner. I'm doing my best to make my submissions. If the Commission pleases. My - - -

PN89

THE COMMISSIONER: I've always been an optimistic person, but I would have to disagree with you. Mr Nolan, what you might do is take us specifically to the Full Bench decision in Patrick Cargo and particularly to those paragraphs of the decision that you say are relevant to the issue and if appropriate also to the Pelican Point one of SDP O'Callaghan.

PN90

MR NOLAN: Yes, Commissioner. Thank you, Commissioner. The Full Bench case, first Patrick Cargo one, we rely upon the observations made by the Full Bench commencing at paragraph 19, where the Full Bench sets out the definition of single business, and of course you will recall this was a purported certification of a Greenfields agreement that was acceded to by Commissioner Raffaelli and that decision was set aside by the Full Bench. Over the page at paragraph 20 the Full Bench says this:

PN91

That provision, we note, links with Section 170LI in relation to the certification ...(reads)... agreement was to apply was not a new business that the employer proposed to establish.

PN92

In the circumstances, the agreement could not be made under Section 170LL, and the Full Bench granted leave to appeal and upheld the appeal and set aside the certification of the agreement. So that is the Full Bench.

PN93

A decision that is closer to the facts that we would say apply here is this other decision to which I have referred, the decision of Senior Deputy President O'Callaghan, in the Pelican Point case in May this year. And, relevantly, there, the - Senior Deputy President refers at paragraph 15 to that earlier decision to which I have just referred you, the Berry decision, and then he goes on to say at paragraph 16:

PN94

Complete Scaffolding is a scaffolding company which is in the business of working ...(reads)... complexity in terms of overlapping site-specific certified agreements.

PN95

And that of course was a decision made by the Commission in circumstances that were very very closely, similar indeed, to the facts of this case insofar as we have endeavoured to put them before you, and - - -

PN96

THE COMMISSIONER: Can I just take you back to paragraph 19 in particular?

PN97

MR NOLAN: Yes.

PN98

THE COMMISSIONER: As you are aware, the requirement, in part at least with respect to Section 170LL, is - to put it simply - is that there are no employees in existence at the time.

PN99

MR NOLAN: Yes.

PN100

THE COMMISSIONER: So I have some difficulty accepting or understanding the reference to the fact that other employees of the company may be involved. I mean, that would obviously normally be the case, if you were doing a normal LJ agreement; I am not sure how, with LL, that could be so.

PN101

MR NOLAN: Well, it shouldn't, with LL, and I think that is the Commission's - the Senior Deputy President's point. And I think that paragraph there has to be read in conjunction with what he says immediately before, because up at paragraph 16 he says:

PN102

Complete Scaffolding is a scaffolding company which is in the business of working on different projects which may be covered by different industrial arrangements.

PN103

Then he says:

PN104

There is no material before me that Complete Scaffolding is establishing a new ...(reads)... a certified agreement in the specified form if they are to obtain this work at Pelican Point.

PN105

So I think what is said there really harks back to what the Senior Deputy President knows about the existing ongoing business conducted by Complete Scaffolding, and the fact that they were in business, they had employees, they went and did scaffolding work on site, you know, from site to site. And so it made nonsense of the proposition that they had no employees, because they were an existing business tendering for just such work and this just happened to be another site of one of many upon which they traditionally tendered, or traditionally tendered for scaffolding work.

PN106

And that really comes back to the point that we seek to make in the affidavit material that we have given to you, because what we endeavour to show there is that this particular company, Golding Contractors, is one really in the same vein as the Complete Scaffolding, that Golding Contractors conducts these sorts of operations all over the place.

PN107

Golding Contractors has got existing agreements with my client, the CFMEU, and some agreements to which others are also parties, but relevantly, my client. And the work that is performed is really relevantly no different to the work that is performed from site to site, and it is quite artificial to say that the contract work being performed by Goldings down at the Yatala site in any way, shape, or form constitutes a new business, let alone that it is a Greenfields business, and let alone that it can be said plausibly that there are no employees employed by the company.

PN108

There were no employees employed by the company when the agreement was signed, because we know as a matter of fact that there were employees employed to perform exactly the kind of work that we have identified as necessary to be performed as a part of this project down at Yatala doing that sort of work already for Goldings, and it is pretty obvious. To us, it is not an exaggerated suggestion, or an implausible inference at all to say that Goldings must have subscribed to this agreement because they were probably in the same position as Complete Scaffolding were in relation to Pelican Point.

PN109

THE COMMISSIONER: Perhaps before we pursue that any further, Mr Nolan, you might like to then take me to any matters that you wish to raise either out of VP Ross's decision and first instance with respect to Grocon, or SDP Williams in Shell, or others that you say substantiate or go to your argument with respect to intervention section 43.

PN110

MR NOLAN: With the intervention, yes, Commissioner. So far as Vice President Ross's decision goes, well, would of course rely on the whole of the decision, but in particular can I just - I will just try to pick up the particular provisions. I thought I had marked this. Excuse me for a moment. It commences at paragraph 29 of the reasons. The Vice President goes on to say at paragraph 30:

PN111

Section 170LH sets out the requirements must be satisfied for applications to be made. The language of the section is mandatory, and if any requirements are not met, an application cannot be made. One requirement is that the agreement be made in accordance with section 170LJ, LK or LL -

PN112

and of course to interpolate there we say section 170LL is the relevant section here. The Vice President goes on at paragraph 32 to say:

PN113

If an agreement has not been made in accordance with section 170LK which I interpolate the relevant ...(reads)... is to consider the matters set out in sections 170LT and LU.

PN114

And then the Vice President reproduces section 170LH, which I won't read. He says:

PN115

In my view section 170LH clearly envisages that there is no application at all unless the requirements ...(reads)... regard I am conscious of the oft cited passage from Thompson v Gould -

PN116

and then he goes on to say he is not persuaded either that the relevant supplementary explanatory memorandum and so on, compel the adoption of the construction contended for by the company.

PN117

I accept the construction of section 43 contended for by the CFMEU. I now turn to consider whether there is a valid application for certification before me -

PN118

and then he goes into the circumstances of the particular application. So they are the passages upon which we would rely, and we say that they hold - - -

PN119

THE COMMISSIONER: What final paragraph was that through prior to the reference to the particular factual material was it?

PN120

MR NOLAN: Yes, it goes right through to paragraph 43 where he then concludes he accepts the construction of section 43 contended for by the CFMEU, and then he says:

PN121

I now turn to consider whether there is a valid application for certification before me.

PN122

So that is the provision. He picks up that other decision of Senior Deputy President Williams, and I have referred to that Maintenance Resource decision, and rather than read all that out to you, we simply rely on such passages as the Vice President referred to in Senior Deputy President Williams decision. So all that leads us to, Commissioner, is to in a sense back where we started, and that is if what we say ultimately proves to be right about this not being a proper application under section 170LL, well, then it must follow that - it must follow that the standing that we enjoy is that identified by Vice President Ross in the Grocon decision, and those passages of the Grocon decision to which you have been referred.

PN123

Now, understandably there is a - it has to be acknowledged an element of circularity about all of this, because in some senses we cannot get through the door until we have effectively proved our case on one view, but that is why we have sought to put up to you at least on the preliminary basis what we say about the defects in the section 170LL application, because in one way or another, these are issues that will have to be grappled with in a final way before the conclusion can be reached that the agreement is either valid or invalid, and of course flowing from that is the decision about our standing ultimately.

PN124

There is nothing that I can do about that. That is just the product of the way the law in this regard has been teased out as a result of those decisions. So we would call in aid, as I have said to you, those affidavits that we have put before the Court. One being the draft affidavit of - - -

PN125

THE COMMISSIONER: I think before we go to those, I will hear from Mr Coonan with respect to the intervention argument.

PN126

MR NOLAN: Yes. I wasn't - I should say I wasn't going to read them all out.

PN127

THE COMMISSIONER: No.

PN128

MR NOLAN: But can we take them as having being relied on by us as a part of this case that we have developed for intervention.

PN129

MR COONAN: Well, certainly not by me, Commissioner.

PN130

MR NOLAN: I am not suggesting that Mr Coonan should make any concession at all about that. I wouldn't be so bold as to suggest such a thing, but what I do suggest is that if the matter is to he decided on a final basis, the evidentiary material will have to be dealt with on a final basis in some way, shape or form. And I wouldn't like it to be thought that I had made any concession by acquiescence to Mr Coonan that the evidence that we seek to put before you should just be pre-emptively set aside or thrown out on the basis of some kind of rule of thumb, or straw in the wind appreciation of what we say about the standing point.

PN131

So I want to emphasise that, that we would submit very strongly that this whole issue has got to be dealt with on a complete and thorough basis, and it might be - it might be to cut off ones nose to spite ones face if this was to be knocked off on a pre-emptive or threshold basis when the issues that we have canvassed are really the ones that need to be explored fully and finally before a decision can be made. If it please the Commission.

PN132

THE COMMISSIONER: Yes, thank you, Mr Nolan. Yes, Mr Coonan?

PN133

MR COONAN: Thank you, Commissioner. Our argument in relation to the intervention question is a simple one, and it picks up on the admissions made by Mr Nolan himself, not just that there is an element as he calls it "circularity" in the decision - the Grocon decision, but what we say is an element of absurdity or unworkability in the Grocon decision. We submit that the arguments presented by the employers - sorry, on behalf of the employer in the Grocon decision were correct, and should be followed, because if - - -

PN134

THE COMMISSIONER: Do you intend to re-run those submissions?

PN135

MR COONAN: I just do the shorthand thing, Commissioner, and pick and rely on the three points - - -

PN136

THE COMMISSIONER: And then what happens if we, by some miraculous chance, ended up before a Full Bench on this matter for further - all the material then is going to be put to them that is not being put to me. Is that the position?

PN137

MR COONAN: Well, Commissioner, that is - okay, well, rather than do the shorthand way, I will make the formal submissions. The first submission we make is that the supplementary explanatory memorandum makes clear the circumstances in which the section 43.2 is to operate, and, that is the intention has always been that did not need to have, as the Grocon decision indicates, that the specific and exact and numerical and minute detail of the provisions of division 2 and division 3 have to be considered when looking at the reference to an application for certification under section 43(2). The second point is that - primary point is that, on its face, the section cannot mean what the Grocon decision says it means, and it goes - - -

PN138

THE COMMISSIONER: And equally with respect to Shell Geelong?

PN139

MR COONAN: Correct, Commissioner, on this basis: that for the argument to be correct, it means - what happens if the argument is correct is probably a better way to put it, is that we don't have an application under division 2 at all. So we are not here under division 2. Section 43(2) doesn't apply. The Grocon decision then goes on to say that, therefore, you can use section 43(1) but where the decision is wrong is in that point because if you don't have before you an application under division 2, you do not have an application under any other division. Therefore, if the decision is correct, Mr Nolan can't get in under 43(2) because it is not an application under division 2, and he can't get in under 43(1) because it is not a matter or a proceedings - I will go straight to the section - it is not a matter before the Commission.

PN140

If it not a division 2 application, what is it? We certainly haven't made application under 99 or 111 or any other section. The application has been made under division 2. So that is what we say is the primary element of proof that the decision is incorrect because, if it is correct, it creates an absurdity and the principal rule of interpretation is that, in the case of any doubt, the section must be interpreted to avoid an absurdity, and we say that the section can operate - section 43(2) and 43(1) can operate if, as was submitted in the Grocon case, that the reference to an application under Division 2 or 3 of Part VIB which is referred to in section 43(2) means an application on its face, but it's an application made under the rules for a certification.

PN141

THE COMMISSIONER: Do you have any authority or anything further with respect to the explanatory memorandum that supports your contentions?

PN142

MR COONAN: No, Commissioner, other than the extracts provided in the decision of Senior Deputy President Ross, we summarise the company's arguments at paragraph 18 and 19. I was simply relying on those extracts. As we say, in addition to that, there is the maximum interpretation that parliament must have intended something, point number one. Point number two, parliament would not have intended an absurdity, and the only way you can interpret section 43 without creating the absurdity I referred to is to say that, in reference to 43(2), it means an application per se under Division 2 or Division 3 of Part VIB.

PN143

On that basis, we say that the Grocon decision is wrong. What that then leads us to is that, on that basis, the leave to intervene should be rejected because, being an application under division 2, the Commission cannot grant leave to the CFMEU because it is not, as I quote from 43(2)(b):

PN144

...an organisation of employees that is proposed to be bound by the agreement.

PN145

The agreement itself states that the only organisation to be bound is the AWU. On that basis, there is no right of intervention to section 43(2) of the Act. As I say, if I am wrong on the basis of the decision - of the Grocon decision being wrong, then I make the next submission that, well, if that is the case, Mr Nolan has no right to be here under 43(1) either. But, as I say, that is an absurdity.

PN146

THE COMMISSIONER: Why do you say under 43(1) Mr Nolan has no right - - -

PN147

MR COONAN: Potentially because then we aren't here either. There is no application before you.

PN148

THE COMMISSIONER: Yes.

PN149

MR COONAN: One other thing I am reminded of, which is a primary element of the submissions. If Mr Nolan submits that he has a right to be here under 43(1) because of the Grocon decision, he has not yet put any submissions as to why the Commission should grant leave. In both the Grocon and the Shell and Geelong decisions, there were arguments put by the unions as to why they should be heard in respect of current agreements and current enterprise bargaining negotiations in place. There has been no such application.

PN150

THE COMMISSIONER: I think that is what Mr Nolan partially did and was attempting to go along further with the production of the affidavits, wasn't he, and the submissions that he - - -

PN151

MR COONAN: I have to say I haven't had a chance to read the affidavits yet, Commissioner, so - - -

PN152

THE COMMISSIONER: Well, neither have I, but I wouldn't have any doubt what is likely to be in part of them, at least.

PN153

MR COONAN: At this stage - sorry.

PN154

THE COMMISSIONER: I wouldn't have any doubt what one would expect to at least partially be in them, would you?

PN155

MR NOLAN: Well, I can assist Mr Coonan by saying that that is definitely the case, Commissioner.

PN156

MR COONAN: So I only rely primarily, Commissioner, on the primary argument and that is that the Grocon decision is wrong and Mr Nolan - sorry, the application is one under division 2 for the purposes of 43(2) of the Act and leave shouldn't be - in fact, can't be granted to Mr Nolan. Thank you.

PN157

THE COMMISSIONER: Yes, Mr Swan?

PN158

MR SWAN: Commissioner, I would support the submissions that Mr Coonan has made, and I don't with to derogate from them. If Grocon is to be followed in any form, it is apparent that there are at least two stages of inquiry that the Commission - or two approaches that the Commission must undertake with respect to applications for certification of agreement. Those are, firstly, that the Commission must consider whether the requirements of the relevant sections of Division 2 or 3 of Part VIB are satisfied.

PN159

The second stage is that, assuming that those requirements have been met, the Commission must consider the matters set out in section 170LT and LU as an applicant in the proceedings that has filed affidavit material in support of the application, and as the applicant naturally bearing the onus or having carriage of the proceedings, the first stage of the inquiry by the Commission, separate and indistinct from any attempt by my friend, Mr Nolan, to seek intervention, is to determine whether the requirements of Division 2 or Division 3 of the Act have been met - or Part VIB, sorry, have been met.

PN160

Now, if they are, and the Commission is so satisfied, then the question about intervention is immaterial. It is an academic - it is a moot point. If it is not, if the Commission is not satisfied in that circumstance, then there is no agreement within the meaning of section 43. Now, that picks up on both Mr Nolan's argument and also Mr Coonan's argument. We take the concession that there is some circularity to the whole question at its face value. There is depth, however, to that argument. If Mr Nolan is right and it is not an application within the meaning of the Act, and within the meaning of section 43(2), then there is no right to intervention and, as a consequence of that, there is no right to intervention pursuant to section 43(1). We are not here.

PN161

My submission, Commissioner, is that the provisions in section 43 are limited in terms of the right to intervention to the case where an intervener is an organisation of employees that was requested to represent a person mentioned in subsection 170LK(4) but we know that that doesn't apply in this case because of the nature of the certified agreement, or the application for the certification of agreement, and otherwise as mentioned in subparagraph (a), the Commission must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement, and we know that that is not the case either.

PN162

Commissioner, those are the very brief submissions that I wish to make. There are factual elements to this that the Commission may need to query my friend, Mr Coonan, about but it appears that, on the basis of that reasoning and that logic, that there is no right; there is neither the right for Mr Nolan to intervene on behalf of the CFMEU, nor is there the capacity for leave to be granted in the absence of that right, because it simply creates manifest absurdity with respect to the application of section 43 of the Act. And that's clearly a consequence that Parliament could not - and in our submission, did not, intend. Those are our submissions, Commissioner.

PN163

THE COMMISSIONER: Mr Swan, just in terms of your union's representative, Ms William's statutory declaration with respect to this matter, at part 5, in particular point 1.2 - yes.

PN164

MR SWAN: Yes. Look, that appears to be an omission. The answer to that question is, yes, that the Australian Workers' Union is entitled to represent the industrial interests of persons that are to be engaged in relation to work which is subject of the proposed agreement.

PN165

THE COMMISSIONER: Yes. Thank you. Yes, Mr Nolan?

PN166

MR NOLAN: Can I just say a couple of quick things in reply, may it please the Commission? Just to respond to this suggestion by Mr Coonan that there is some superadded absurdity about the process, if the Grocon decision is followed. Can I say that that's not so. It's not at all unusual for tribunals to have before them applications that purport to enliven the tribunal's jurisdiction, and it would be - the true absurdity would be if the Tribunal were to take the view that there was nothing before them prior to determining for itself whether or not the matter before the Tribunal was a proper application and was within the jurisdiction of the Tribunal to deal with. And so there's no real absurdity involved in that at all. That's a process that tribunals strike every day of the week, where they need to determine whether or not they have jurisdiction to deal with a particular matter.

PN167

And in this connection, of course, the primary question answered is not one that goes to those later provisions that need to be satisfied, but the section 170LL question, because the primary basis upon which this agreement is put forward for approval is that it relates to a Greenfield site, as that's defined in the Act, and it's not at all absurd to say that, in given circumstances, there will be a real contest about that, and it's something that you've got to satisfy yourself about as a primary issue before you can go any further and determine whether or not the other requirements that are necessary to be met are, in fact, met. And in that exercise, it's not helpful to say, "Oh, well, that requires you to satisfy yourself to the nth agree about every last comma and full stop".

PN168

The decision of the High Court in Project Blue Sky doesn't suggest that any tribunal should engage in that kind of descent into minutiae, but rather that the substantial matters that go to jurisdiction are satisfactorily made out. And, of course, in this case it is mandatory that section 170LL be complied with. That's a fundamental condition of the jurisdiction to approve an agreement such as this. And, indeed, it's put forward on that basis by the applicants, and it's not at all absurd to say that a proceeding like this could arise prior to those later steps being taken, because you've got to satisfy yourself about jurisdiction in the first place.

PN169

And if you were, somehow or other, wrong-footed, if the application was not one that arose within jurisdiction, you'd be in limbo land. It's a matter for you to decide, and you've got to make your mind up about it. And as I say, there's nothing unusual about that, and it's something that tribunals do every day of the week. So, Commissioner, what we've suggested isn't quite as implausible as Mr Coonan suggests. It has a very practical and real import and impact, and it's not, we suggest, too much to suggest to you, respectfully, that you would only very, very unwillingly, and in the case of a very clear demonstrated case, depart from the decisions of Vice President Ross and Senior Deputy President Williams in those two cases to which I've referred. May it please the Commission.

PN170

THE COMMISSIONER: Thanks, Mr Nolan. Yes, Mr Coonan?

PN171

MR COONAN: Sorry, Commissioner, I wasn't - I was just looking at you. Sorry - well, while I'm on my feet, I'll take the opportunity: I want to make it clear, I'm not acquiescing to the fact that we haven't complied with 170LL. We're just making submissions on that preliminary point in the Grocon decision.

PN172

THE COMMISSIONER: Yes.

PN173

MR COONAN: May it please the Commission.

PN174

THE COMMISSIONER: Yes, thank you. The Commission reserves its decision on the matter. The Commission stands adjourned.

ADJOURNED INDEFINITELY [12.15pm]