AG2003/850, Transcript of Proceedings [2003] AIRCTrans 562 (21 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

AG2003/850

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH by
Ebenezer Mining Company Pty Ltd to
terminate the Ebenezer Mining
Certified Agreement

BRISBANE

9.34 AM, WEDNESDAY, 5 FEBRUARY 2003

PN1

THE COMMISSIONER: May I take the appearances, please?

PN2

MR J. LAWSON: If the Commission pleases, John Lawson. I appear for Ebenezer Mining Company Pty Limited, the applicant in this matter and I appear with MR THOR BERDING.

PN3

THE COMMISSIONER: Very well, thank you, Mr Lawson.

PN4

MR A. VICKERS: My name is Vickers for the CFMEU, Commissioner.

PN5

THE COMMISSIONER: Mr Vickers, do you have any application by - any opposition to what I take it is an application for leave?

PN6

MR VICKERS: I've stopped objecting, Commissioner.

PN7

THE COMMISSIONER: Leave is granted, Mr Lawson. Mr Lawson?

PN8

MR LAWSON: I thank Mr Vickers and yourself for the indulgence, Commissioner. Commissioner, the matter before you is an application under section 170MH of the Workplace Relations Act seeking that an agreement be terminated. The Ebenezer Mining Company Pty Limited Ebenezer Certified Agreement 1997 has, Commissioner, only ever applied to the operations of the Ebenezer Coal Handling and Preparation plant. It hasn't applied to the mining operations which were conducted at the Ebenezer Mine at large. The Commission may well know from its own knowledge of the history that for many years a contractor, covered by their own agreements, have carried out the actual mining operations themselves.

PN9

Commissioner, there is an issue I need to draw your attention to. The application states the nominal expiry date for the agreement is 29 April 2000. It's in the first line under application on the document that's filed. There is an issue in relation to that. Clause 1.4 of the agreement states that it commences on 27 April 1997 and continues until 28 April 2000. So the nominal expiry date in accordance with that is probably 28 April and 29 rather than 29 April. However, the certification document - the certification certificate - issued by Commissioner Hodder on 25 November 1997 says, and I quote:

PN10

This agreement shall come into force from 29 August 1997 and shall remain in force until 28 August 2000.

PN11

I just bring that to the Commission's attention for accuracy sake.

PN12

THE COMMISSIONER: 28 August?

PN13

MR LAWSON: In either case either date is past.

PN14

THE COMMISSIONER: Sorry, did you say 28 August or 28 April?

PN15

MR LAWSON: 28 August 2000, the certification document by Commissioner Hodder says.

PN16

THE COMMISSIONER: Right.

PN17

MR LAWSON: I must say I'm not sure which of those two dates is the appropriate one to adopt, but in either case it is well past either of those two dates so in terms of - - -

PN18

THE COMMISSIONER: Thankfully.

PN19

MR LAWSON: - - - an application that says it's reached - it's after its nominal expiry date, it's after it. But for accuracy I just think the Commission may well need to record that so there's no misunderstanding. Commissioner, the primary issues of our case are as stated in the application, paragraphs 1 through 16,which is then signed by Mr Berding who accompanies me here today. The relevant principles to the exercise by the Commission, we say, under 170MH are best extracted from the decision of Munro J in Joy Machinery, the Moss Vale site. I think it's a decision - I didn't bring it in hand-up form and it's well known to this Commission, it having relied upon it as currently constituted in the various BHP Coal setting aside decisions where it acknowledged relied upon it and endorsed it and has been invariably relied upon by the Commission in other setting aside matters.

PN20

I think the principal section to relate to is section 3 of 170MH which states, and I quote:

PN21

If after complying with sub-section 2 the Commission considers that it is not contrary to the public interest to terminate the agreement the Commission must, by order, terminate the agreement.

PN22

So the public interest is really - is almost a reverse onus submission on our view. The Commission just needs to be satisfied that it's not contrary to the public interest. The issues which go to public interest follow in that decision and are generally picked up from paragraphs numbered 27 to 33. Munro J went on to set aside, or to terminate, that certified agreement. Commissioner, one of the distinguishing differences between that decision, a range of other decisions that have been considered by this Commission as constituted currently and otherwise, such as in the series of BHP Coal decisions, both wages and salaries.

PN23

I think one of the distinguishing issues is that in each of those matters there were still employees and notwithstanding the fact that there were still employees who had an interest in the outcome of the matter, the Commission in most of the cases - in each of the ones that I've referred to - notwithstanding that found that it was not contrary to the public interest to set the agreement aside or to terminate the agreement because the issue isn't whether it's in the public interest to set it aside, it's whether it's not contrary to the public interest to set it aside in the case of the mining operation or the operations that this document, the Ebenezer Mining Company Pty Limited certified agreement, applied to.

PN24

There are no employees. There is no mining operation. I can tell the Commission, and Mr Berding is available if the Commission requires sworn evidence to this effect, that at this point in time there is no coal mining or CHPP activity at the mine. There is no ROM stockpile, there is some product stockpile, which continues to be for sale, but the load-out of that was never part of the work covered by this certified agreement. The last mining area has been decommissioned. The CHPP has been decommissioned. When the last mining area was decommissioned it was, in fact, done so for the construction of a land-fill which includes what's known as the Tea Tree Bio Energy facility which is a methane extraction operation for the purpose of generating electricity.

PN25

That's operated, we can tell the Commission, by joint venture between Collex and J.J. Richards and EMCL has no shareholding whatsoever in that joint venture. In more recent times the employees of CHPP were engaged by Henry Walker Eltin who was the mining contractor. As the principal to the contract for the operations we can advise the Commission that they no longer operate CHPP because nobody does. Its entire operation, that is, HWEs, is being demobilised with the progressive removal of all operating equipment and site facilities from the site. For completeness, Commissioner, I should just advise you that there may be some equipment stored on a leased piece of land on the site, some equipment belonging to HWE, simply whilst it waits to demobilise it to other sites which that mining contractor operates on, but not for use at Ebenezer.

PN26

So to all intents and purposes and for all reasons the mine is closed. Intentions of the owners of Ebenezer Mining Company Pty Limited is to dispose of the assets of the operation and to then wind up that legal entity of Ebenezer Mining Company Pty Limited it no longer being required. That's on the basis, Commissioner, that everything is satisfied in terms of its statutory and corporate responsibilities for the winding up of the organisation. There is no time-table associated with the actual winding up, because that simply can't be given. So on the basis, Commissioner, that the certified agreement was intended to apply to the relationship or the terms and conditions of employees originally of the Ebenezer Mining Company, there are none. It is not an employer any more that makes the application.

PN27

Commissioner, there is an issue which we draw to - we drew to the Commission's attention in the application and that is at paragraph 9, which is at the top of the second page of the application itself. Paragraph 9 refers to a decision of Branson J in the Federal Court, which made - which declared that Henry Walker Contracting Pty Ltd was a respondent to be bound by the certified agreement that was seeking to have terminated.

PN28

Interestingly, it doesn't declare that it is a party. Which is - I am not sure of the way in which the Federal Court thought this matter through, but on the assumption that Federal Court Judges think the matter through and use appropriate words, whilst it made - it declared and specifically used the word "respondent" for the purpose of Henry Walker Eltin Contracting, we say it is not a party to the agreement, and it never has been in that strict sense.

PN29

Notwithstanding that the Ebezener Mining Company is a party, it makes the application and it seeks, Commissioner, to have the agreement terminated on the basis firstly, that it is not in the - that it is not contrary to the public interest to do so. But secondly, that it is probably in the public interest, if indeed was a test, to set aside an agreement which has no practical application to any employees subject of which - to that which Mr Vickers might say. They are the submissions of the applicant, unless there is something that the Commission desires.

PN30

THE COMMISSIONER: Thank you, Mr Lawson. Mr Vickers?

PN31

MR VICKERS: Thank you, Commissioner. Commissioner, the CFMEU in fact has a slight technical problem with the application, and we in fact say that the applicant in the matter in fact has no standing to make the application. The reason is a relatively simple reason, based on a simple reading of the legislation by simple minds. The application, of course, comes to the Commission pursuant to section 170MH of the Workplace Relations Act. Subsection 170MH.1 appears to make it clear that after the nominal expiry date of this certified agreement (a) the employer, or two other groups of people, may apply to the Commission to have the agreement terminated.

PN32

Ebezener Mining Company is not the employer. Ebezener Mining Company is confirmed both by the submission to the Commission by Mr Lawson, and in the application to the Commission by Mr Berding at point 8 no longer employs people covered by the terms of the certified agreement. As a consequence, it seems to me, and the CFMEUs submission is therefore, the Ebezener Mining Company not being the employer, as stipulated by the Act, can't apply to the Commission to terminate the agreement.

PN33

The question then arises, I suppose, well, who can because it would seem to me again from Mr Lawson's submission and it confirms my understanding of the circumstances surrounding Henry Walker Eltin that there are no employees of anybody at the Ebezener operation covered by the terms of the certified agreement. So there can be no employer. There is no employer. So there is no employer, in our submission, capable of in fact making the application which is necessary pursuant to section 170MH of the Act.

PN34

It seems that the Act doesn't contemplate a set of circumstances whereby a business or operation ceases to exist, there are therefore no employees, therefore no employer as to how one might go about terminating, pursuant to section 170MH of the Act, a certified agreement. It seems that is just another one of those little anomalies in this wondrous piece of legislation that we continue to struggle to understand. At least this end of the Bar Table. So we say, Commissioner, that it is not an application which the Commission can deal with because the Ebezener Mining Company is not the employer.

PN35

The second point that I would like to make in respect to that, Commissioner, and this is where it all starts to become even more interesting from my perspective, is that indeed as Mr Lawson has taken you to in August 2001; the Federal Court of Australia made a decision. It did not make a decision however that as is stated in para 9 of the application that Henry Walker Eltin was a respondent to this certified agreement. Henry Walker Eltin, of course, was the respondent to the application made by the CFMEU, and the words used by Branson J in the decision are:

PN36

That the respondent, being Henry Walker Eltin, is bound by the terms of the certified agreement.

PN37

So it wasn't made - Henry Walker Eltin was not made a respondent to the agreement. Henry Walker Eltin was not made a party to the agreement. It was simply a declaration at the end of the day by Branson J that Henry Walker Eltin was bound by the terms of the certified agreement.

PN38

THE COMMISSIONER: What was the basis on which his Honour made that declaration?

PN39

MR VICKERS: Her Honour made it - - -

PN40

THE COMMISSIONER: Her Honour, I am sorry.

PN41

MR VICKERS: That the concept, or a concept of one of the many concepts floating around in legal circles about transmission of business.

PN42

THE COMMISSIONER: Right.

PN43

MR VICKERS: That was the basis of the argument that was put. I have a copy of the decision. I am sorry, I have a copy of the orders just to assist the Commission. They are obviously on - and Mr Lawson, I understand, has the full decision if you are bored at night, Commissioner, and are looking for something to do. It is just for information. I don't seek to have it marked, Commissioner, at all.

PN44

THE COMMISSIONER: Yes. Very well.

PN45

MR VICKERS: Because all that comes out of that, Commissioner, is that I think it is consequently arguable on two points that even Henry Walker Eltin cannot make the application which I have submitted Ebenezer Mining Company can't, and that is because (a) they are not the employer and (b) they are not a party in any event. Although section 170MH doesn't use the term party, it uses the term "the employer." It seems to contemplate, or what is contemplated by section 170MH is that such an application, that is to terminate a certified agreement after its nominal expiry date would be made by an employer who was still engaging people at the time under the terms of that certified agreement.

PN46

And there is nothing else around the place. Now, one further point that I think I should make in respect of the Ebezener Mining Company is that it would seem to me again that through the operation of section 170MB of the Act it is no longer bound by the terms of the certified agreement anyway, because of the declaration made by Branson J, and the fact that it no longer employs people. So any obligation or concern that the Ebezener Mining Company may have had about this beast coming back to haunt it some time in the future, seems to me through the operation of 170MB and specifically, Commissioner, at 170MB.1 paragraph E where it said:

PN47

The previous employer ceases to be bound by the certified agreement but to the extent that it relates to the whole or the part of the business.

PN48

The whole of that part of the business of the Ebezener Mining Company was contracted out. Branson J found that as a consequence of that, and a few other things, Henry Walker Eltin was bound by the terms of the Ebezener Mining Company's certified agreement. It seems to me through the operation of the Act, the Ebezener Mining Company is no longer bound by the terms of the agreement.

PN49

It may well be that, if my submission is correct, and I can't find a precedent for it - not that I've look all that hard, but I still can't find one - but it seems to me that all of the applications, certainly that have involved the CFMEU in coal in Queensland and, indeed, the Joy case that Mr Lawson referred to, and I concede that it's a - the significant precedent case in these matters, they are both what is contemplated by 170MH and what's been done pursuant to the 170MH on application by employers has been made by employers who are, if you like, active employers, or at the time, as opposed to someone who was an employer at some time in the distant past.

PN50

So it seems to me that 170MH has a role to play, but it has a role to play while there is, if you like, an active employment relationship in existence, and it may well be, and I am - that all that's happened on this occasion is that the bus has been missed. Maybe it wasn't - isn't all that well signposted. But, frankly, my submission is that the Commission can do nothing with the application because the Ebenezer Mining Company is not an employer and the rest of it is - the rest of the submission has basically been a submission and some views about how someone else might kill of this agreement for ever and a day.

PN51

I'm not even certain the union can because we no longer represent people covered by the agreement. So I think the bus has departed, so I really think the Commission has no work to do because 170MH doesn't permit it to do anything. And that's the extent of my submission. In terms of the public interest argument, or not contrary to the public interest, Mr Lawson has rightly and correctly referred you to Munro's decision and the Commission, as currently constituted, of course, is well versed in that, having had many similar applications, again in the not all that distant past. That's the extent of my submissions, unless you have any questions, Commissioner.

PN52

THE COMMISSIONER: Just one, Mr Vickers. Her Honour's decision upon which you rely, I've not seen it before, but her Honour finds, does she, that in relation to this certified agreement and the arrangements that took place between Ebenezer and Henry Walker Eltin, that section 170MB(2) applied, and it wasn't in your submission as though Henry Walker Eltin were added to the list of respondents, if I can use that description, of the certified agreement, but rather that section 170MB(2) applies in such a way that the agreement transmits to Henry Walker Eltin, and from the date it so transmits, Ebenezer ceases to become a party to that agreement, or ceases to be bound by that agreement.

PN53

MR VICKERS: Yes, and that's not contained in Branson Js decision. I think that's simply a function of the Act.

PN54

THE COMMISSIONER: Yes, but the question was, she specifically finds that - the declaration she made is a declaration that section 170MB(2) of the Act had work to do in this instance.

PN55

MR VICKERS: Yes.

PN56

THE COMMISSIONER: Very well.

PN57

MR VICKERS: I may have misled you there, Commissioner. I don't think it is 170MB. I think it is section 170M, because I think the Ebenezer Mining Company agreement was a division 2 agreement.

PN58

THE COMMISSIONER: Yes, MB(2) - - -

PN59

MR VICKERS: I stand corrected on that.

PN60

THE COMMISSIONER: - - - I think is the appropriate section.

PN61

If an employer is bound by a certified agreement - - -

PN62

MR VICKERS: Sorry, MB(2). Yes.

PN63

THE COMMISSIONER:

PN64

- - - the application for certification of the agreement stated was made under division 2 -

PN65

etcetera.

PN66

MR VICKERS: Yes. MB(2) repeats, to a large extent, MB(1), Commissioner.

PN67

THE COMMISSIONER: Yes.

PN68

MR VICKERS: Yes. I think I may have referred to MB(1) previously, but I am fairly confident it was a division 2 agreement.

PN69

THE COMMISSIONER: Very well, thank you. Mr Lawson?

PN70

MR LAWSON: Commissioner, it is accepted that the implications of her Honour's decision, so far as they relate to section 170MB(2) present a difficulty. I think the difficulty needs to be considered in this context, and I accept the concession by Mr Vickers that, indeed, it may be the case, if you take his argument to its fullest, that the consequence of that argument is that no entity - I'm reluctant to use the word "party" - that no entity exists at this point in time which is capable of making an application under 170MH(1). The natural consequence of that - - -

PN71

THE COMMISSIONER: Is the CFMEU not such an entity?

PN72

MR LAWSON: Yes, it can't make an application either because there's two elements needed to satisfy its position.

PN73

THE COMMISSIONER: I see, is subject, not was subject to.

PN74

MR LAWSON: Yes. One, it has to be bound by, and secondly, it has to have a member whose employment is subject to. Now, it would seem, Commissioner, that the scheme of the Act contemplated terminating certified agreements in the public interest after they have reached their nominal expiry date. The scheme of the Act, I don't believe, contemplated that, where circumstances may change, the Registry should be forever cluttered by certified agreements which have absolutely no value to any employer, employee, union, or anybody else, because that is the consequence of accepting that submission.

PN75

The alternative to that submission - and it would seem that that is not a public interest argument, or that's not an argument that any public interest test can possibly sustain. At the time of making the agreement, there is no doubt, and it is not suggested otherwise, that the Ebenezer Mining Company Pty Ltd was the employer and if the employer is - the term "employer" is read in that context, then it - we say it is reasonable that, at any subsequent time, that's the point in time in which the employer is identified. If you look generally at the provisions of the relevant part of the Workplace Relations Act that relates entirely to certified agreements, their making and the process, it consistently uses the term "employer." It doesn't use the term "parties" in that general context.

PN76

We say that we were the relevant employer identified for the purpose of the legislation, because we were the employer at the time that the agreement was made. We say, therefore, we are qualified and eligible to satisfy section 170MH(1)(A) as the employer. To do otherwise, particularly in a circumstance such as this, highlights an absurdity and whilst Mr Vickers, I think, used the terms of something like, and I don't hold him to this, one of the many things he finds difficult to comprehend in the structure of the current Act, and if I haven't reflected his general views correctly, he should feel free to correct me, it seems it never contemplated the cluttering of the files by documents that simply have no value or which, at some subsequent time, may be elevated to some value by another party going to the Osiris files or elsewhere searching, identifying and purporting to put up an existing document for the purpose of some other argument which doesn't exist, other than for the fact that, on Mr Vickers's argument, you, as the Commissioner, can't do anything to stop it existing.

PN77

We think that, with due respect, is an extension of an argument that is impossible to logically accept. Having said that, Commissioner, we think we conceded in our submissions, and I share Mr Vickers's difficulty, that the essential decisions that we can look to on 170MH have been made by - have been made in circumstances where the employment relationship was continuous, and generally have been made in circumstances by employers where, for whatever their reason, and when one looks at the decisions it is normally in the negotiation process for other agreements, for whatever reasons, they've wanted to set agreements aside.

PN78

I, like him, have not been able to find - perhaps they exist but haven't been able to be found yet - decisions where the relationship is over, but just as I can't find decisions where the relationship was over, it can either be because they've never been made because Mr Vickers' submission has been considered and accepted by those who might make them, but they've certainly never been determined to the best of my knowledge. Perhaps the Commission's resources can go beyond ours, but I can't find them in that sense. Certainly not since the decision of Munro J in the Joy Mining case, anyway. And I really use that as my research start date simply because of the significance that subsequent Commissioners have - subsequent Members of the Commission have attributed to that. Commissioner, I don't know if I can take the issue beyond that.

PN79

I do realise the significance of the 170MB(2). I said that at the outset of it. However, having said that: to follow that logically through, Mr Vickers' argument then is that perhaps in the circumstances, Henry Walker Elton Contracting Pty Ltd cannot make an application either if you take his view because they are no longer the employer. Again, if you take his view, it would seem that that was not the set of circumstances contemplated by the scheme of the Act in creating the circumstances where certified agreements are established, and then creating the circumstances by which they cease to exist. We ask the Commission to accept the submission and set the - sorry, terminate the operation of this particular agreement in the circumstances.

PN80

PN81

THE COMMISSIONER: Mr Lawson, leave aside the section 170MH(1)A argument for a moment. I guess I don't understand is how it is you say that you're still, or that your client is still bound to this certified agreement.

PN82

MR LAWSON: Well, we say so simply by referring back, Commissioner, to the argument that at the time of making the agreement, and for some time afterwards, we were the employer. If we continue to be the employer, section 170 - if we continue to fall within the classification of employer then we say that section 170MB(2) doesn't apply because 170MB(2) refers to parties bound. 170MH refers to the employer and doesn't predicate itself or define the employer - the word "employer" in 170MH(1)A by saying, "The employer bound by the certified agreement." See even the definition in the certified agreement itself which doesn't define employer but defines employee.

PN83

It defines employee as an employee of EMC. Even in that and which I think the natural extension of EMC is the employer for the purpose of the terms and conditions of the certified agreement. Even if 170MB(2) has effect, in terms of the decision of Branson J, it doesn't go to the extent. It simply declares that the respondent being Henry Walker Elton Contracting Pty Ltd, the respondent in that action, as Mr Vickers properly points out is bound by the certified agreement. It doesn't make consequential variations to the certified agreement to replace the words, "Ebenezer Mining Company Pty Ltd", and its ACN or the term, "EMC" which is defined as meaning that company.

PN84

It doesn't consequently go to replace that: that wasn't the effect of the term. It simply said it's bound by it. Now, that may well be an error - - -

PN85

THE COMMISSIONER: The Parliament has made it clear that from that date that Henry Walker Elton became bound then Ebenezer ceases to be bound. I can't read MB(2) in any other way.

PN86

MR LAWSON: I don't - we're not asking you to read section 170MB(2) in any other way. What we're saying to you is that if you take our view of what "employer" means in 170MH(1)A, and what it doesn't mean in 170MH(1)A, you don't need to go to 170MB(2).

PN87

THE COMMISSIONER: But you do. Section 170MB(2)F says, "A reference in this part" - that is Part 6B of Division 6 of the Act in which section 170MH appears:

PN88

A reference in this part to the employer includes a reference to the new employer, and ceases to refer to the previous employer to the extent that the context relates to the whole or part of the business.

PN89

So that's the point Mr Vickers makes I assume is that from that date for this part of the Act in any context that the term "employer" is used, it would refer to Henry Walker Elton and cease to include Ebenezer.

PN90

MR LAWSON: Commissioner, I accept the difficulties that that proposes.

PN91

THE COMMISSIONER: Yes. No, fair enough.

PN92

MR LAWSON: I can't take the issue beyond that. I do understand what is being said.

PN93

THE COMMISSIONER: Yes, okay.

PN94

MR LAWSON: What does concern me, if I just simply make the point, is that if the combination of those two issues or either of those issues independently are correct; then one of the consequential problems that will be faced may well be the need for an employer, prior to taking any action which may trigger a 170MB(2) effect - - -

PN95

THE COMMISSIONER: Event.

PN96

MR LAWSON: - - - having to come to this Commission and apply for an agreement to be terminated, assuming it's past its nominal expiry date for the purpose of 170MH, probably having that resisted.

PN97

THE COMMISSIONER: Well, that's one option.

PN98

MR LAWSON: Probably - - -

PN99

THE COMMISSIONER: The other option might be to change the name of the employer, wherever it appears, to the new employer.

PN100

MR LAWSON: But probably having that resisted for whatever reason. I accept there's a range of options but I just want to explore this option. Probably having that resisted with three probable outcomes: one is that the Commission decides not - the Commission decides that it is not contrary to the public interest and maintain the certified agreement which is the unusual wording of section 170MH(3) or terminating it from a prospective date which was the date the day before the new arrangements might come into place or potentially consigning it to the never-never basket because if the Commission does nothing, then it may well be no one can subsequently make that application, such as in the circumstances that we face here if you take - - -

PN101

THE COMMISSIONER: But - - -

PN102

MR LAWSON: - - - Mr Vickers' argument. That would not seem to be a public interest outcome.

PN103

THE COMMISSIONER: But if - for MB(2) to have effect, there has to be a new employer to whom the business is assigned, transmitted or who succeeds the business. That employer could make the application to - could either negotiate a new agreement which, upon certification, terminates the old one - - -

PN104

MR LAWSON: We accept it could negotiate a new agreement. There's no issue about that. The union and others have all their rights in relation to a new agreement, notwithstanding what occurs to this. But in the circumstances that we face now, if one accepts Mr Vickers' argument - - -

PN105

THE COMMISSIONER: Two arguments.

PN106

MR LAWSON: Well, if we accept the 170 MB argument - - -

PN107

THE COMMISSIONER: Right.

PN108

MR LAWSON: Could we accept the 170 MB(2) and the consequential impact that that makes on 170 MH(1)A in terms of what the employer becomes. If we accept that for the purpose of the argument, then we may still reach the position where an agreement can never be terminated.

PN109

THE COMMISSIONER: Mr Vickers' submission relies on two events.

PN110

MR LAWSON: Yes.

PN111

THE COMMISSIONER: One is - I'll shorten it - a transmission of business to a new employer. The old employer ceases to be bound. The new employer becomes bound. The new employer then - that's one part of his argument because he then argues the old employer doesn't have capacity under 170 MH(1)A to make an application. But then, in this circumstance, that right would fall to the new employer. But what he says about the new employer is - well, in circumstances where the new employer ceases to employ people and then subsequently makes the application, the employer doesn't - I use the term loosely - the employer then doesn't have standing.

PN112

MR LAWSON: Yes.

PN113

THE COMMISSIONER: So they are two - - -

PN114

MR LAWSON: The entity - - -

PN115

THE COMMISSIONER: Not - - -

PN116

MR LAWSON: - - - is no longer the employer.

PN117

THE COMMISSIONER: Correct, and they are two unconnected arguments because if we take the second one, that is, the MH(1)A argument, it could happen with any employer without the transmission of business in the middle of the nominated term of the agreement.

PN118

MR LAWSON: Yes. I'm focusing on after the nominal expiry date.

PN119

THE COMMISSIONER: Yes.

PN120

MR LAWSON: We're probably having an academic discussion that probably doesn't have a lot of outcome - - -

PN121

THE COMMISSIONER: We are, and I mean - - -

PN122

MR LAWSON: - - - on your view.

PN123

THE COMMISSIONER: - - - it may be that your view of - even if your view of section 170 MH(1)A is right, it may be that the employer with standing to make this application is Henry Walker Eltin because they are the employer bound because of the operation of section 170 MB(2).

PN124

MR LAWSON: And the decision of - - -

PN125

THE COMMISSIONER: Yes.

PN126

MR LAWSON: - - - Branson J.

PN127

THE COMMISSIONER: Yes.

PN128

MR LAWSON: I don't think I can take the issue much further, Commissioner.

PN129

THE COMMISSIONER: Very well. Thank you. Well, I'll reserve my decision in this matter. I just want to have a look at whether or not any similar matters to this have been determined in the past and - Mr Vickers, do you have any other views to express in case I'm against you on both counts?

PN130

MR VICKERS: Commissioner, I think there's one further point and that's - it comes subsequent to that part of section 170 MH which has had everybody's attention. It's part (1)A, if I can put it that way. I make the point again about the intent of parliament. You see - because 170 MH(2) gives specific direction to the Commission about what should occur when an application to terminate is made and, again, the practice - my exposure to the practice of the Commission has been that one of the groups which the Commission seeks the views of are the employees who are covered.

PN131

MH(2), it seems to me, Commissioner, adds further weight to the argument that this is a capacity to do something which only applies in an active employment relationship because if that wasn't the case, why would the parliament go to the trouble of directing the Commission to do certain things which are all about, "Go and find out what the people who are employed under this agreement think about the prospect of its termination"? Now, if that wasn't the focus of the attention of the parliament, then it seems to me that that would be a totally unnecessary requirement, yet it is such an essential requirement that it goes into the legislation.

PN132

So it does nothing other, in my submission, than add weight to the argument that I've been putting - and this is one of the two arguments. You're quite correct about that. There have been two legs to the submission I put - to that leg of the submission which is all about the employer, irrespective of whether it's in these circumstances the Ebenezer Mining Company or Henry Walker Eltin Proprietary Limited has to, in fact, be an active employer at the time - and that's my term, active employer - at the time that the application is made. But that's the only further thing that I would add, Commissioner - nothing more than that.

PN133

MR LAWSON: If I just may, for a moment, Commissioner - there are two matters. One arises out of that and one's something I just need to make sure the Commission's aware of - is that 170 MH(1)2 directs the Commission to take such steps as it considers appropriate to obtain the view of persons bound by the agreement about whether it should be terminated. That's probably an issue of the construction of the agreement and it will depend upon the application clause because the application clause of an agreement may simply bind an employer and the union and then have it apply to employees and or members. There may, in fact, not be employees bound by, in terms of the party sense - - -

PN134

THE COMMISSIONER: I think that might be so - - -

PN135

MR LAWSON: - - - by an agreement.

PN136

THE COMMISSIONER: - - - in the terms of the agreement, but the Act specifically - - -

PN137

MR LAWSON: The Act is a different issue - - -

PN138

THE COMMISSIONER: Yes.

PN139

MR LAWSON: - - - in terms of who binds what. But the other issue I simply wanted to bring to your attention and I should have done so before - and it's a procedural matter which may not concern the Commission, but the CEPU is also bound by this agreement. I must say, Commissioner, it wasn't something that I visited at the time because I didn't consider it really was at the time, but on re-reading the document, it is. And I do notice that on the notification of listing of the matter then that organisation hasn't been notified.

PN140

Now, the extent to which that has any bearing on the outcome - to the best of my knowledge, anybody who worked at that place at the particular time of the contract being let was either a member of the CFMEU or a member of nothing. I'm not conscious of whether there are any CEPU people involved. I suspect, but I can't take you any further than that, whether during the period of time of the HWE employer there were any CEPU members involved. But in terms of parties bound by the agreement, and if you do take our view that you're entitled to proceed down the 170 MH A track, that organisation hasn't been consulted.

PN141

THE COMMISSIONER: Very well.

PN142

MR LAWSON: And I think - I would hate to see a decision challenged on the basis of not having told you that.

PN143

THE COMMISSIONER: Very well.

PN144

MR LAWSON: That's all, Commissioner.

PN145

THE COMMISSIONER: Thank you. Well, as I said, I'll reserve my decision in this matter and advise the parties that they should be able to expect it in writing certainly within the next few days. I adjourn the Commission.

ADJOURNED INDEFINITELY [10.24am]