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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 10891
A: 27/4/04
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER CRIBB
BP2004/2216, 2217, 2219, 2221, 2222, 2223,2224, 2225,
2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234,
2235, 2236, 2237, 2238, 2239, 2240, 2241, 2242, 2243,
2244, 2245, 2246, 2247, 2248, 2249, 2250, 2252, 2253,
2255, 2256, 2257, 2259, 2260, 2261, 2262, 2263, 2264,
2265, 2266, 2267, 2268, 2269, 2270, 2271, 2272, 2273,
2274, 2275, 2276, 2277, 2278, 2279, 2280, 2281, 2282,
2283, 2284, 2285, 2286, 2287, 2288, 2289, 2290, 2291,
2292, 2294, 2296, 2297, 2299, 2300, 2301, 2303, 2304,
2305, 2306, 2307, 2308, 2309, 2310, 2311, 2312, 2313,
2314, 2894, 2895, 2896, 2897, 2898, 2899, 2900, 2901,
2902, 2903, 2904, 2905, 2907, 2907, 2908, 3027, 3028,
3029, 3030, 3031, 3032, 3033, 3034, 3035, 3036, 3037,
3038, 3039, 3040, 3041, 3042, 3043, 3044, 3045, 3046,
3047 and 3048
NOTICE OF INITIATION OF
BARGAINING PERIOD
Applications under section 170MI of the Act
for initiation of bargaining period re
Alexandra District Hospital and Others re
initiation of bargaining period
MELBOURNE
9.45 AM, TUESDAY, 20 APRIL 2004
PN1
MS J. MACLEAN: I seek leave to appear on behalf of the employers that are listed on the documents that I will hand to the Commission. There are, as the Commission would appreciate, a large number of employers involved in this matter, so I will just hand to the Commission two documents. One sets out - the larger of the two, sets out the hospitals and health care providers in the general health area, if I can describe it in that way, and the second document sets out the employers providing psychiatric health services on whose behalf I also appear this morning, or seek leave to appear. If the Commission pleases.
PN2
MR P. GARDNER: I seek leave to appear as solicitor on behalf of the Australian Nursing Federation.
PN3
MR D. STEPHENS: I appear on behalf of the Health Services Union of Australia, together with MS K. DUNN.
PN4
THE COMMISSIONER: Thank you. Is there any objection, Mr Gardner, to Ms MacLean, and vice versa?
PN5
MR GARDNER: Not from me.
PN6
MS MACLEAN: Nor from me, Commissioner.
PN7
THE COMMISSIONER: I figured as much. Leave is granted to both of you.
PN8
MS MACLEAN: Thank you, Commissioner.
PN9
THE COMMISSIONER: Ms MacLean?
PN10
MS MACLEAN: Commissioner, thank you for making the time available this morning to deal with this application. It is, as I think you have been informed, an application to correct a potential irregularity in the bargaining period notices that have been initiated or served by the employers. If I might just take you back, Commissioner, to the document that I handed up when I announced my appearance, you will see in the larger of the two, in the general health area there are - I might just provide a copy to my learned friend of both of those notice documents that I handed to you.
PN11
The Commission will see that there is set out in the second column a bargaining period notice number, which is referable, of course, to the number that the Commission has allocated to each of the bargaining periods initiated by those particular employers. There are, as the Commission will see, a number of blanks against various health care providers, and I am instructed that in relation to those, as yet no bargaining periods have been initiated. But we will make sure that that document is accurate to the best of our ability, Commissioner, if you are minded to make any orders in this matter.
PN12
What the bargaining period notices set out, Commissioner, as you will see from your file, where they have been initiated by the employer - and I have a representative copy here, and I don't think they vary all that terribly much, and I am sure that my learned friends have copies of the bargaining period notices at their disposal - the Commission will see that the employer intends to try, firstly, to reach agreement under the divisions described, with an entity described as the Australian Nursing Federation Victorian Branch, and the address of that organisation is there given. And also with the Health Services Union in some cases, also the Victorian Branch of that entity.
PN13
Now, as the Commission would be well aware, the individual state branches of registered organisations under the Workplace Relations Act are not legal entities in and of themselves, and it is with that in mind that we have considered the bargaining period notices and wish to avoid the possibility - and we put it no more highly than that - that there is a potential defect in those notices.
PN14
Now, of course, the Commission has conducted some conciliation in relation to the dispute which has arisen between the parties in relation to the enterprise agreements proposed, and in exercising its powers of conciliation has relied on, as the foundation for its exercise of power, the bargaining periods which have been initiated by the employers.
PN15
And it is our concern, Commissioner, to ensure that you exercise your jurisdictional and appropriate foundation without any potential doubt being cast upon that, particularly at some later time, as seems to often happen in relation to bargaining periods where jurisdictional challenges pop up a long time after those bargaining periods have been initiated and, indeed, when a lot has happened based on those bargaining periods as a foundation for jurisdiction.
PN16
We want to avoid that possibility, Commissioner, and want to ensure that the powers that you exercise, and the steps which are taken by the employers and the Commission are based on a solid foundation, and that no potential challenge at any rate is available. Now, of course, the Commission would be aware that you have the power under section 111(q) - and if I might take you to that, Commissioner - under section 111(1)(q) you can correct, amend or waive any error, defect or irregularity whether in substance or form.
PN17
So here, Commissioner, you have at your disposal a broad range of powers to correct the potential defect or irregularity in the notices to ensure that the organisation required to be described by section 170MI of the Act is properly described as the registered organisation which is the legal entity, which, of course, is the Australian Nursing Federation and the Health Services Union. What I have done, Commissioner, is to prepare a very draft order. There are so many bargaining period numbers - - -
PN18
MR GARDNER: Commissioner, I hesitate to interrupt my learned friend, but can I say to the extent that it is compended, or what has fallen from her is suggested that there is an intention that the registered organisation, namely, the Australian Nursing Federation, was somehow or other intended to be the party named, then we object to material coming from the bar table on that question. It is a very live issue as to what the intent or what the purpose is intended.
PN19
Now, my learned friend hasn't actually said, well, what we meant was this, but she has gone very close to it, and it would be unfair of me not to raise that issue and say that to the extent that it is said without evidence and by assertion from the bar table, it is not accepted by us.
PN20
THE COMMISSIONER: Ms MacLean?
PN21
MS MACLEAN: Commissioner, if I might, just before I hand up the draft order, deal with that point. We don't say that there is any question of intention or otherwise before you. We say that there is a potential defect in the notice which we would ask you to correct under the powers that you have. How that defect or irregularity or misdescription came about is something that we don't propose to say anything about, and you don't need to make any findings in relation to. So, of course, I won't be addressing you at all on that question.
PN22
PN23
MS MACLEAN: If the Commission pleases. As I said, Commissioner, this is a very draft order, but in substance it shows the Commission what the corrections required are. If the Commission is minded to make an order to correct the irregularity - and I might just say in relation to that, the Commission will see from section 111(1)(q) that you have the power to waive the error if you were minded to simply do that in transcript. That may well save an extensive and exhaustive search of the numbers of bargaining periods, and would make a more holistic solution possible.
PN24
If you were minded to make an order, then the Commission will be provided with a schedule which will set out every bargaining period number which has been initiated by an employer, and also the union to which that bargaining period relates. If the Commission would turn to perhaps one of the bargaining periods that have been initiated in relation to this matter, you will see the substance of the amendments required.
PN25
As I indicated earlier, the bargaining period notices follow a fairly formulaic approach. They describe the union as the Australian Nursing Federation Victorian Branch, and then there give its address. The first amendment that is sought, or correction that is sought, is the deletion of the words Victorian Branch. That then properly describes the registered organisation that is the legal entity which ought to have been described in that way in the bargaining notice. The second correction that is required, of course, is to then - - -
PN26
MR GARDNER: Well, again, Commissioner, to the extent that it is said that it ought to have been described in a particular way, we simply repeat what I said before. What is being suggested is that there is a notice, and that it is now said that it ought to have been described in a particular way. Well, what we say about that is, that it is by no means apparent on evidence that it ought to have been described in any way other than the way in which it was described.
PN27
THE COMMISSIONER: But, Mr Gardner, as I understand it, Ms MacLean is arguing that there is a potential defect in what is there now, and the defect is on the basis that it ought to have been X, but is, in fact, as all of us can see, Y. Is that what I understand you to be saying, Ms MacLean?
PN28
MS MACLEAN: That is precisely, exactly, Commissioner, yes.
PN29
THE COMMISSIONER: So it isn't actually about intention at this point, it is about the situation as it is now, that there is potential defect, want it to be X, want it to be different.
PN30
MR GARDNER: All we say is that there is no material before the Commission other than the bargaining notices themselves that speak of Y. To the extent that my learned friend says it ought to be X, then we simply say there is nothing before the Commission other than my learned friend's assertion from the bar table. That is the only point we make.
PN31
THE COMMISSIONER: Right. Where does that take me, Mr Gardner? Sorry, Ms MacLean.
PN32
MR GARDNER: Well, can I come to that perhaps at the appropriate time. All I wanted to do was just raise that issue. I leave it as a sort of standing issue so I don't interrupt my learned friend any more.
PN33
THE COMMISSIONER: Fine. I think both your learned friend and myself understand now, thank you. Ms MacLean?
PN34
MS MACLEAN: I wonder whether Mr Gardner might also want to give consideration to the question that naturally flows from what he has just said, which is, does he accept, or does his client accept that the description in the bargaining period notice as is extant at the moment properly describes the legal entity for whom he appears? That is the natural corollary of the point my learned friend makes. However, I will go on with that to where I was.
PN35
The Commission will see that the next amendment to be made, I think we were up to the address, which is the address of the registered organisation of the Australian Nursing Federation. The next amendment that is required is to delete the words, Victorian Branch, where they appear after the Health Services Union. And there has been a typographical or some other kind of error, where the address of the Health Services Union is described as 106 Victoria Street, Carlton, and we would want that to be changed to 108. 106 to 108 I think is their address, and hopefully the Commission doesn't require evidence of that.
PN36
The corrections that are required, as I indicated earlier, Commissioner, are simply to avoid the possibility of there being a later challenge to any of the steps that might be taken by the Commission or by the employer who initiated the bargaining periods in reliance upon them. And as the Commission will be aware, there are a number of things that can happen once bargaining periods are initiated, and we don't need to go into those today.
PN37
What the employers are keen to do is to ensure that whatever happens in reliance upon those bargaining periods happens with a solid foundation, and that we are not met sometime down the track, as has often happened in this Commission, with a jurisdictional challenge to the validity of the bargaining period when those steps are sought to be taken. Commissioner, if I might just hand for your reference some transcript in a matter before Commissioner Mansfield recently where this issue arose of the appropriate description of the employer in that case. The employer was described by the union in the notice initiating the bargaining period as the TXU Group of Companies, which was not the legal entity who was the employer. That was a number of other limited and proprietary limited companies.
PN38
MR GARDNER: Have you got another transcript?
PN39
MS MACLEAN: Yes, I think we have got another one. I am just seeing if I have got another copy of that, Commissioner. This is the one before Mansfield, 1124. Commissioner, perhaps I will just undertake to my friends to get a copy of that as soon as we can. Perhaps if they could just share that for the moment. Commissioner Mansfield, as I said, was dealing with an application by the employer in that event that the bargaining period, which oddly enough the employer had applied to terminate, wasn't validly initiated in the first place. And the Commissioner said this at paragraph number 1127, about the description of the employer and the effect that that had on the bargaining period:
PN40
Firstly, I acknowledge that the reference to the TXU Group of Companies represents a sloppy approach by the union to the information required in relation to a section 170MI and MJ, and puts them at risk of having the initiation of the bargaining period declared a nullity.
PN41
And, Commissioner, I might interpose there and point out that that is precisely the consequence that the employers are seeking to avoid here, that we want the jurisdictional foundation to be as solid as we can make it. The Commissioner went on to say this:
PN42
However, taking account particularly of the following, the lack of evidence of any significant confusion from TXU in relation to the section 170MI notifications -
PN43
and I will come back to that point in a moment, Commissioner -
PN44
the fact that the notifications found their way without difficulty to the relevant TXU officer, the lack of any early advice from TXU to the unions that their notification may be deficient ...(reads)... should the parties require I will publish my reasons.
PN45
The Commission will see that the Commissioner there took into account a number of factors when coming to his decision, as to whether he ought to in effect waive the potential irregularity, although he wasn't specifically referring to the section which I have taken you to this morning, Commissioner, but he did find that the Commission was required to act without regard to technicalities and legal forms.
PN46
And the factors which the Commission took into account, in my submission, disclose that one of the important questions that arises where there has been a potential misdescription of a party, as we say requires correction here, that the lack of prejudice to that party brought about by the misdescription is something that is important to take into consideration when deciding whether the Commission ought to act to correct the defect.
PN47
Now, here, as I indicated earlier, the Commission has on a number of occasions exercised its powers of conciliation. The parties have been represented by officials of both of the industrial organisations. No one, in my submission, has been under any misapprehension as to what they are all talking about. And what is required here is a simple correction of what we say is the misdescription of the appropriate legal entity.
PN48
The Victorian Branch of the registered organisations is not and cannot be a legal entity under the Act. And we want to make sure that the bargaining period notices, important as they are to found jurisdiction and a number of other steps which can be taken under the Act, describe the legal entity with respect to whom those steps can be taken. And we ask the Commission to do no more than that.
PN49
THE COMMISSIONER: Ms MacLean, in terms of the TXU transcript that you have handed up, what was the difficulty with respect to the MI notice?
PN50
MS MACLEAN: The TXU Group of Companies, Commissioner, is not a legal entity, is not a registered company, it doesn't exist, in a similar way to, as a matter of law under the Workplace Relations Act, the Australian Nursing Federation Victorian Branch doesn't exist, with no disrespect to anyone here from the Victorian Branch this morning. It is, unfortunately, a consequence of the way that the law relating to registered organisations has developed since a decision of the High Court in a case called Williams v Hursey, that federally registered organisations are the juristic entity, and the Victorian branches and other state branches simply don't exist for that particular question.
PN51
The TXU Group of Companies similarly was comprised of a number of companies who were the actual employers of the employees concerned, but the TXU Group of Companies in and of itself wasn't a legal entity, and the Commission decided that that did not, as you can see from his decision, invalidate the bargaining period.
PN52
Now, what we are trying to avoid here, Commissioner, is the potential - and as I said earlier, I put it no higher than that - the potential that at some stage down the track, if some action is taken under those bargaining periods or the Commission is, of course, exercising conciliation right now under those bargaining periods, then we want to make sure that we are not met at some later time with a challenge along similar lines to that which Commissioner Mansfield had to deal with, and which the Commission has dealt with over the years, often arising at a very late stage.
PN53
We want to try and avoid that possibility. The Act gives you a range of powers, Commissioner, to correct or waive defects or irregularities. They can be in either form or substance. It is not a question at all, in my submission, as to why the branch is so described in the bargaining period notice. The simple fact of the matter is that the employers are asking the Commission to correct what they apprehend to be a potential defect in that notice, and wish to ensure that that defect is removed.
PN54
You can either waive that defect or irregularity, should you find that such a defect exists, or you can make a correction order and correct the document. You don't need to rely on a section 111(1)(p), which gives you a specific power of amendment, because, as the Commission will see, that requires a document in the proceeding that could also be relied upon, and you could allow the amendment of the documents.
PN55
But it seems simpler to us, Commissioner, that an order is issued simply to correct each of the bargaining period notices in the manner which we have set out in our draft order. If the Commission pleases, unless there are any other matters which perhaps I can deal with now or perhaps in reply, those are the submissions.
PN56
THE COMMISSIONER: Ms MacLean, you have been very careful to indicate that the draft order which is exhibit A1 is designed to allow the Commission to correct a potential defect, and you have also made it very clear that you wish the Commission and the other parties to have a solid basis on which each of the parties can do whatever needs to happen moving forward in these matters.
PN57
MS MACLEAN: Yes.
PN58
THE COMMISSIONER: Is it a fair understanding from my perspective that in essence it is acknowledged that the BPs that are the subject of this morning's proceeding are not correct?
PN59
MS MACLEAN: Commissioner, in answer to your question I would say this. The union is not correctly described. The legal entity which is the Australian Nursing Federation and the Health Services Union is not the registered organisation. Now, it may well be that upon a full hearing and taking into account the matters that Commissioner Mansfield alluded to in his decision, the Commission decides that that is not fatal to the bargaining period notice.
PN60
Whether it is or it isn't, I wouldn't be in a position at this stage to make a call about. What we are trying - what I would say though in relation to the question that you have asked me, is that they are not as accurate as they could be, and they do give rise to a potential for a jurisdictional challenge to their validity. Whether that challenge was ultimately successful and the Commission decided that there was prejudice, substantial non-compliance with the Act, given that what is involved is a misdescription of a similar nature to Commissioner Mansfield, we would hope that the Commission would take a similarly pragmatic approach.
PN61
But the potential for the Commission to adopt a requirement that the strict requirements of the Act be complied with, and that one of those requirements was that the appropriate legal entity was described in the notice, that certainly arises, and we want to avoid that possibility. We don't say that the notices are invalid on their face, certainly not. But what arises when one looks at the notices is the potential for them to be challenged.
PN62
And the power of the Commission to correct them to avoid the possibility for that challenge is open, and we would ask the Commission to exercise it so that this - it is really getting the notices and the documents back on the rails so that there is no hanging out in the ether a potential for a jurisdictional challenge here, and the people can get on with the main game, so to speak. If the Commission pleases.
PN63
THE COMMISSIONER: Thank you, Ms MacLean. Mr Gardner?
PN64
MR GARDNER: Thank you, Commissioner. The Australian Nursing Federation, the registered organisation for whom I appear, opposes the application. We say, first, that the Commission doesn't have power under section 111(1)(q), secondly, we say that if you did have power you wouldn't or shouldn't, in our submission, exercise that power as a matter of discretion, and thirdly, we make application under section 111(1)(g)(iii) for you to dismiss the application on the grounds of public interest set out in that paragraph of the Act.
PN65
Turning first to the question of power under section 111(1)(q), it might be recalled that the provision is conventionally, or was conventionally a slip rule sort of provision whereby the Commission could rectify its slips. But certainly it is not a means or a mechanism that permits the Commission to rectify a jurisdictional problem. The question that fell from the Commission to my learned friend about whether there was a concession that there was a defect in the notice, is of some significance.
PN66
Section 111(1)(q) proceeds on the basis that there is an error or a defect or an irregularity, and that the Commission must, or the Commission can then rectify it. In the absence of a concession by my learned friend that there is, in fact, an error, defect or irregularity, then it is our submission that section 111(1)(q) has no application. Alternatively, the Commission would need to find the existence of a defect or irregularity.
PN67
What is sought in this application is to, in effect, amend or vary a notice by order of the Commission required to be given under the Act. And I will come to the provisions, but it is a notice that is necessary to identify a party proposed to be subject to a certified agreement. Can I invite the Commission to turn to section 111(1)(a). That section is relatively new, it came in under the Workplace Relations Act, and it makes it clear that the powers in section 111(1) are exercisable subject to the Act.
PN68
And the decision of the High Court in Citicorp [1989] HCA 41; (1989) 167 CLR 513, of which I have got a copy I can provide to the Commission, that decision dealt with the question of whether or not the power in 111(1)(g) could be exercisable before a dispute had been found. And the Commission will recall that this decision, in fact, has been remedied or dealt with by section 111(1)(aa), whereby you need to find the dispute before 111(1)(g) applies.
PN69
But can I direct the Commission's attention at 519 to what the High Court says about the subject to the Act reference, albeit that at stage it was slightly differently formulated, but the words are the same, and at point 2 on the page there is a reference there to the only feature attending 111 which might be different from the old Conciliation and Arbitration Act is expressed to be subject to the Act. That is the same words we are using here. That subjection serves to indicate that the powers conferred by section 111(1) may not be exercised contrary to any prohibition, limitation or qualification found in the Act, however, for the reasons given. And then they go on to indicate that there was no such issue.
PN70
What we submit here is that the powers under section 111(1)(q) are not exercisable by the Commission in this context because there exists a limitation or qualification under the Act. And we will come to that in a minute. Section 111(1) operates by virtue of section 111 subsection (2), and that provision makes it clear that a reference to an industrial dispute includes any other proceeding brought before the Commission, but it also speaks of contrary intention in the section.
PN71
And, of course, a contrary intention, or unless the context otherwise requires, which is the language of the subsection (2), the provision doesn't apply to the proceeding. Has the Commission got 111 subsection (2) there?
PN72
THE COMMISSIONER: Yes.
PN73
MR GARDNER: Unless the context otherwise requires, a reference in this section to industrial dispute includes a reference to any other proceeding before the Commission. I think it can be acknowledged that this is another proceeding before the Commission. Turning then to the question of the limitation or the prohibition we say arises under the Act, I invite the Commission to turn to section 170MI(2). And it is that provision that involves the making or the giving of a notice for the initiation of a bargaining period.
PN74
It provides that the bargaining period is initiated by the initiating party giving written notice to each other negotiating party, see subsection (3), and to the Commission stating that the initiating party intends to try to make an agreement with the other negotiating parties under division 2 or 3, and to have an agreement, and so on. There is a requirement in that section to give notice to the other negotiating party and to indicate who the other negotiating parties are with whom it is proposed to make an agreement.
PN75
So there are two aspects of it. One is notice being given to the other negotiating party. The second aspect of it is the identification of the other negotiating parties. Section 170MI(3) makes it clear that negotiating parties in the case of an employer is an organisation or organisations. But if the initiating party is an employer who intends to try to make an agreement under section 170LK, it can be the employees at the time whose employment will be subject to the agreement. And LK, of course, falls under division 2 of the Act, of the enterprise bargaining part of the Act.
PN76
It is submitted that the scheme of the Act operates in such a way as to render it inappropriate or prevent the application of 111(1)(q) because of the significance attaching to the giving of notice under section 170MI. It is not a matter, in our submission, of the Commission or a party coming along subsequently and simply amending or varying or changing a notice. The giving of notice under 170MI is a critical step and it is a formal step in the scheme of the Act.
PN77
Can I underline the significance of it by referring the Commission to section 170MK. That section provides that the bargaining period itself begins seven days after the notice has been given. Clearly what the Act contemplates is something - the notice is of real significance under the Act. The notice has to be given to the persons provided in 170MI(2) or (3). The next significant matter to which I draw attention is, that under 170ML protected action is permitted as a consequence, subject to various steps being taken, under the terms of a bargaining period, that is, the attenuation of rights under contracts of employment and the like, are permitted by the Act, but the starting point again is the existence and creation of a bargaining period by the giving of a bargaining notice.
PN78
Section 127 orders don't apply to protected action. That is another issue arising as a consequence of the giving of a bargaining notice. Under section 170MW it is possible to have a bargaining period terminated, thereby providing a gateway to arbitration without continuing to have negotiations, an arbitration under 170MX. So it is submitted that the giving of a bargaining notice has a very significant impact on the rights of organisations or employees, if that is in respect of whom the notice is given.
PN79
Section 170N, for example, provides that there can be no arbitration at all by the Commission in respect of matters at issue between the bargaining parties. So in our submission what can be drawn from that material is that section 111(1)(q) is not a provision that is available to be used in this context because it is always subject to the Act, and in our submission a notice under section 170MI is not the kind of document or instrument to which section 111(1)(q) is directed.
PN80
It is submitted that the foundation of the giving of a notice under section 170MI involves the identification of a party with whom the initiating party intends to try to make an agreement. That is quite clear from the terms of section 170MI. Now, as has been suggested by my learned friend, there is no capacity in a branch of the registered organisation to be a party with whom an agreement is made, either under section 170LJ or under section 170LO.
PN81
The significance of the identity of a party in an organisation is illustrated in a decision of the Full Court of the Federal Court in respect of the then Royal Australian Nursing Federation Tasmanian Branch, and if I might provide the Commission with a copy of that. It is (1986) 15 IR 406, a Full Court of the Federal Court consisting of Evatt, Northrop and Gray JJ, and at the beginning of the reasons for judgment there is a reference to the fact that it is a hearing of an appeal brought by the appellant in the name Royal Australian Nursing Federation Tasmanian Branch.
PN82
And at about point 8 on the page in the last sentence of the second last paragraph it is made clear that the Court heard counsel, who claimed to appear for the appellant in his capacity at amicus because of the difficulty that arises, and the Court makes clear. Over the page at 407 in the first full paragraph there is a reference to it being trite law only against a person. And then there is quoted an extract from Williams v Hursey, to which my learned friend alluded, and there is a reference there to Fullagar Js judgment:
PN83
It is plain that the Hobart Branch has no corporate character, no separate legal existence as a juristic person. Since a plaintiff cannot sue anything except a person or persons, the only way of justifying the naming of it as a defendant is to say that it is a convenient name for all the natural or individual persons enrolled in the Hobart Branch.
PN84
And then the Court goes on later in that matter to effectively strike out a conviction recorded against Royal Australian Nursing Federation Tasmanian Branch, given that it simply didn't exist. But I do draw attention over the page at 409, the first full paragraph starting:
PN85
It follows therefore that in law the appellant is not a juristic person. Counsel for the respondent contended that on its true construction the name RANF Tasmanian Branch should be construed as meaning the RANF, being an organisation. They contended that the words Tasmanian Branch were otiose and should be ignored. They condemned it further that the whole proceedings at the hearing on the information were conducted on that basis. The Court says, in our opinion the latter contention cannot be accepted.
PN86
They refer to then the next paragraph:
PN87
We reject the first contention also.
PN88
And so on. Now, given the reference to Williams v Hursey, we will provide the Commission with just an extract from that decision of the High Court, or some extracts, I should say. Relevantly to what we say is at page - I can refer to the headnote for convenience, but page 45, the Commission conceded that Dixon CJ agrees with the judgment of Fullagar. And at the bottom of page 53 Fullagar J refers to the Hobart Branch, and it is that passage that the Federal Court referred to, going over to the top of page 54.
PN89
And then the following two pages His Honour sets out his reasoning. The next page is at page 86 where Kitto J indicates that he agrees with Fullagar, so it is three members of the High Court. And then I have provided the judgment of - extracts from Taylor and Menzies JJ, who really are of the same view. The real significance, quite apart from the fact that the Royal Australian Nursing Federation Tasmanian Branch, or in this case the Australian Nursing Federation Victorian Branch, isn't a legal person, is the observations of the Court in this case:
PN90
That a reference to the Australian Nursing Federation Victorian Branch, transposing the language from Williams v Hursey, is a reference to the members of that branch.
PN91
Commissioner, it is our submission that what that does is that it means that the notice given under section 170MI(2) of the Act was directed to, it appears, on the authority of the High Court, the employees at the time whose employment will be subject to the agreement, who were members of the Victorian Branch. Can I direct the Commission's attention to section 170MI(3)(c), where the initiating party is an employer who intends to try and make an agreement under section 170LK, then the negotiating party is the employees at the time.
PN92
So what we have is, on its face, the giving of a notice of a bargaining period that is given to the employees at the time whose employment will be subject to the agreement, who are members of the Victorian Branch of the ANF and, it appears, who are members of the Victorian Branch of the Health Services Union of Australia. That is, we say, clear on the material. And what is now sought to be done is to somehow or other transform that notice given under the Act to a notice to the registered organisation, which is, of course, an entirely different notice, entirely different negotiating party with entirely different consequences.
PN93
Now, of course, there are questions about the effectiveness of the giving of a notice to a branch for the purpose of giving notice to its members, and there is no evidence which we have about the employer giving notice separately to non members. But, of course, it is open to it to do exactly that. On the face of the bargaining periods the employer indicates that it wants to give - reach an agreement under either division 2 or division 3. Of course, giving notice to employees means that it can reach an agreement under section 170LK under division 2.
PN94
So in our submission the notice that the Commission has is a notice that can operate subject to its terms. And it is not one of those cases where it is simply impossible for it to have any effect or it is the misspelling of a name or something like that. On the authority of the High Court it is identifying a class of persons who, under 170MI(3), are persons to whom a notice of initiation of bargaining period might have been attempted to be given.
PN95
I have combined in effect two submissions there. One is that, it is a submission in relation to the way in which a contrary intention or a prohibition or limitation can be derived from the Act, and 170MI, to say that 111(1)(q) doesn't apply, and the second part of the submission is to say, well, look, here is a notice and a notice that is capable of having effect and meaning. And that is relevant also to the question of discretion.
PN96
I might also illustrate the limitation inherent in the Act, as we put it, by posing the question, well, what is the effect of an amendment or an order of the kind sought by the applicant? It is not apparent what the date of the effect of the - I withdraw that. What is sought is a retrospective date of effect of the order, being from 25 March 2004. It is not immediately apparent to me, Commissioner, what the significance of 25 March 2004 is, but for present purposes we ask rhetorically, well, the Commission having made the order, what then follows from that?
PN97
No notice can be said to have been given on 25 March or thereafter simply by the Commission making an order. The other submission we make is, this is not - the notice itself is not an instrument that is amenable to amendment or variation in a retrospective way, which is now sought. Can I provide the Commission with a decision of the High Court in CFMEU ex parte W.J. Deane and Sons, which was a decision concerning the existence of an industrial dispute, and whether the making of a demand and a log of claims was effective at the time it was made, and if subsequent ratification of the demand for a log of claims can render the demand valid and effective at the time it was made.
PN98
It is submitted that by parity of reasoning this is the sort of instrument that is a notice initiating a bargaining period that is not capable, is not amenable of retrospective variation or change. Can I invite the Commission - the headnote to the case sets out the essential proposition for which the case stands, but can I ask the Commission to go to page 545 of the report, and going to the first full paragraph, and then at about point 4 of the page, beginning:
PN99
Central to the proposition is the retrospective or retroactive effect of the ratification. The act done is put in the same position as if it had been authorised antecedently ...(reads)...here what is in question is not merely the validity of the notice to quit, but the existence of the jurisdiction of the Commission.
PN100
And so on. It is submitted that were the Commission to make this order, there is not only serious doubt but, in our submission, it is clear that it would be ineffective because the giving of a notice under section 170MI(2) necessarily involves the identification at that time of the relevant negotiating parties, and consequences then flow, including the beginning of a bargaining period seven days later.
PN101
If somehow or other it is going to be contended or suggested that having a retrospective change to this notice then somehow or other means that there is also a retrospective commencement of a bargaining period seven days later, it is our submission that it actually becomes bizarre. Now, it might be - we don't concede this - it might be that such a notice would or could have effect from a particular date, such an order could have effect from a particular date.
PN102
But certainly in our submission there is no prospect and no possibility of it, such an order, having effect in a retrospective way, and we say that the argument advanced by the High Court, or the position outlined by the High Court has equal application to this case. And we also say that it underscores our argument as to why 170MI should be seen as constituting a prohibition or limitation on the application of 111(1)(q) in any event, simply because of the extraordinary difficulties that then arise.
PN103
I should indicate to the Commission that the decision of the High Court in W.J. Deane was considered in a similar context by Deputy President MacBean in print Q0009, of which I don't have more than one copy. I simply draw the Commission's attention to the fact that Senior Deputy President MacBean in that decision did a number of things. He drew attention to the significance for organisations, not just branches, of bargaining periods, and held that you cannot validate subsequently an invalid attempt to initiate a bargaining period. Mind you, that was a contention advanced by the State of Victoria in that case.
PN104
And he also refused to use section 111(1)(q), saying that a rules failure by the CPSU in that case was not a technicality of the type contemplated under section 111(1)(q). That went on appeal. I am sorry, Commissioner.
PN105
THE COMMISSIONER: That is all right. Can you just give me the print number again?
PN106
MR GARDNER: Yes. It is Q0009.
PN107
MS MACLEAN: Commissioner, perhaps if I can be of assistance. I have got some copies of that decision here. I might hand one up.
PN108
THE COMMISSIONER: I appreciate that, thank you.
PN109
MR GARDNER: That decision went on appeal, and it appears to have been dealt with on a different basis on appeal by the Commission, and there was argument about whether the notice was valid because particulars hadn't been provided, and on the question of authorisation. But on appeal the Full Bench did say one thing, and that is print Q1866. I don't provide it to the Commission. But they did say:
PN110
We agree with Mr Kenzie's submission that section 170MI(2) makes it clear that it is the giving of the written notice which initiates the bargaining period.
PN111
And that is consistent with what we say about the Act.
PN112
THE COMMISSIONER: Do you have a page reference for that, Mr Gardner, or am I being difficult?
PN113
MR GARDNER: One of these awful computer printout ones, Commissioner.
PN114
THE COMMISSIONER: That will do. I am flexible.
PN115
MR GARDNER: Page 9 of 20 pages on mine. It is one of those decisions that doesn't have paragraph numbers. If I can pass to the Commission my copy.
PN116
THE COMMISSIONER: Ms MacLean, would you like to have the reference for that?
PN117
MS MACLEAN: Yes, Commissioner, that would be of assistance.
PN118
THE COMMISSIONER: Okay. Maybe to Ms MacLean first. My copy of Q1866 has got 18 pages, hence my question.
PN119
MS MACLEAN: I will hand this up to you, Commissioner, so that you can have a look.
PN120
THE COMMISSIONER: Would you like it back then?
PN121
MS MACLEAN: No, I won't.
PN122
MR GARDNER: Commissioner, the tenor of some of what fell from my learned friend was that somehow or other this was a minor issue just fixing up a little bit of a slip, mistake, whatever, and it was in that context that she relied on the transcript of the proceedings before, I think it was Commissioner Mansfield. We just say that this is no - and we don't propose to be nitpicking about this, but there is a substantial issue here about the giving of notice to one class of negotiating party, and then coming to the Commission subsequently and saying, well, what was in the document actually we meant, or was an error, or no, we don't concede it is an error, but there is a possibility that it is an error, and we mean something else.
PN123
The impact on an organisation is significant because, first of all, the organisation in this case hasn't been given notice and wasn't given notice by the notifiers. But entirely different consequences flow within an organisation from a notice that is directed to its members as against a notice that might be directed to the organisation proper, as against a notice that somehow or other is sent to a branch.
PN124
Can I refer the Commission as well to the rules which, in our submission, reinforce the provisions under the Act and the need for proper notice to be given. Section 48 of the Act, of course, provides that rules can be made not inconsistent with the Act, and, of course, you can't do under the rules that which is not permitted by the rules themselves. Rule 58 of the Commission rules deals with the giving of notice of bargaining period, and rule 58(1)A reinforces the need for the giving of notice to the other negotiating party of the bargaining notice.
PN125
Rule 72 of the Commission rules distinguishes clearly between organisations and branches. So it is submitted that there is nothing in the rules that provides a basis to avoid the need under the Act to give notice to who it is that is proposed to be the negotiating parties. In terms of the history of the giving of notice, the Commission will recall that I identified under section 170MI(2) the need to give notice to the negotiating party and to identify who the negotiating parties are proposed to be.
PN126
Can I just provide to the Commission the documents in relation to this. The first document is the notice of 11 February 2004, or a letter of 11 February 2004, attaching copies of bargaining periods, the second document will be a letter of 29 March 2004, attaching notices of bargaining periods, and the third document will be a letter of 31 March 2004, attaching notices of bargaining periods in the mental health area.
PN127
THE COMMISSIONER: Mr Gardner, do you have copies for Ms MacLean? Before you go to them, Mr Gardner, I just want to wait until Ms MacLean has them as well. And then I would like to ask as to whether you wish them marked as exhibits.
PN128
MR GARDNER: I think that will probably be convenient, Commissioner.
PN129
THE COMMISSIONER: Right. Ms MacLean, is there any objection to them being marked as exhibits?
PN130
PN131
THE COMMISSIONER: Now, while we are doing these things, Ms MacLean, should we have marked the documents that you tendered at the beginning of your submissions, which were the bargaining period notices for both the general area and mental health?
[11.00am]
PN132
MS MACLEAN: That would be appropriate, Commissioner, yes, so that we all know what we are talking about.
PN133
THE COMMISSIONER: Is there any objection, Mr Gardner?
PN134
PN135
MS MACLEAN: Thank you, Commissioner.
PN136
THE COMMISSIONER: Thank you, Mr Gardner?
PN137
MR GARDNER: Commissioner, attached to each of those letters is a summary list of the employers concerned, and at the back of each is one only of the notices and, as I understand it, each of the notices was in common form, but they differed slightly as between, I think, R3, the attachment to R3 is slightly different. Could the Commission just go to the attachment to R3, and I think the difference is that there, there is an identification of the Australian Nursing Federation Victorian Branch and its Health Services Union, whereas I think in the attachments to R1 and 2 it is Health Services Union Victorian Branch. Yes, I think that is the difference.
PN138
The point we make in relation to this material is that it has been provided variously to Mr Burrows of the Australian Nursing Federation, and then to Mr Burrows and Ms Fitzpatrick, and then the third one to Ms Fitzpatrick, who is described as the State Secretary of the Australian Nursing Federation. No notice was given in any of the cases to the federal organisation. It was suggested by my learned friend, by reference again to the material in transcript, somehow or other the ANF has acquiesced in bargaining periods of the kind given, and on that basis, as a matter of discretion, the Commission should simply allow them to be altered.
PN139
Of course, the ANF was represented in conciliation proceedings, as I am instructed, by officials from the Victorian Branch, as a courtesy to the Commission, and in an attempt to as well try and reach an agreement. Immediately the issue was raised the ANF reserved its position. And we make it clear immediately that in terms of prejudice the ANF, in whatever guise now, the ANF will be more than willing to continue to participate in conciliation proceedings that have been under way, regardless of disposition of this matter.
PN140
So we say that as a matter of discretion the Commission should weigh the question of prejudice heavily. So that were the Commission to dismiss this application to make an order under 111(1)(q), there is no prejudice to the employer on account of somehow or other the ANF saying, well, we are not even going to meet, confer, discuss and so on. And that is simply not the case. We say that is a very significant factor that should weigh in the Commission's discretion as to whether or not to grant the application.
PN141
THE COMMISSIONER: Mr Gardner, is there some inherent, like, is there an inherent lack of logic in what you have just told me?
PN142
MR GARDNER: The preparedness for the ANF to meet and confer and discuss under the good offices of the Commission to try and reach an agreement is something that we are content to do. An agreement does not require a bargaining period.
PN143
THE COMMISSIONER: But what would be the vehicle?
PN144
MR GARDNER: The good offices of the Commission.
PN145
THE COMMISSIONER: Pursuant to what part of the Act?
PN146
MR GARDNER: It may be that a section 99 can be notified to fix the problem.
PN147
THE COMMISSIONER: You understand that from the Commission's perspective there would need to be a vehicle?
PN148
MR GARDNER: I understand that, Commissioner, yes, subject to reserving its rights, of course. These are conciliation proceedings we are talking about, and the ANF would do, for example, a section 99. The Commission might be moved of its own motion to identify a section 99 dispute. It is submitted that there are means by which the Commission can continue the discussions, and which the parties can continue the discussions without this application being granted.
PN149
We say all that subject to our submission that clearly that there isn't power in any event, and our 111(1)(g). But turning just to the discretion issue, we say that our willingness to continue to confer is highly relevant to the exercise of discretion, were you persuaded that you had power, and were you persuaded not to dismiss the matter under 111(1)(g). We are not here to avoid discussions and conciliation.
PN150
Speaking of discretion, it is also submitted that a powerful factor weighing in favour of you dismissing the application is the uncertainty that would follow were the application granted. As we say, it is by no means apparent what effect, if any, this order would have even if you had power. It is not at all clear when a bargaining period, as I have said, would begin, whether it was seven days after 25 March, when the correction is said to have effect, or from the date of the order, or some other time. It is just not clear.
PN151
THE COMMISSIONER: So you don't have a submission to make regarding if the Commission acceded to, or decided pursuant to section 111(1)(g) to amend or correct the bargaining period notices? I have heard your submissions regarding the retrospectivity that is sought by the employer, but putting that to one side, do your clients have a fixed view about when the date of effect might be, or do you think it is a range of those options that you outlined earlier?
PN152
MR GARDNER: Well, the most coherent answer to that question, Commissioner, is that if the notices were altered in some way and they were then served again, or for the first time, I should say, on the registered organisation, then the bargaining period would begin seven days later. We see no way in which there can be some retrospective fixing up of a notice for the sorts of reasons that I explained in relation to W.J. Deane, and so on.
PN153
THE COMMISSIONER: Yes. But it is more if there was an alteration - this is absolutely hypothetical - but as of tomorrow, do you think that the seven days pursuant to 170MI(2), I think, needs to apply?
PN154
MR GARDNER: MK, is it?
PN155
THE COMMISSIONER: MK, sorry. Let me be specific. Yes, I beg your pardon, thank you, MK, then applies?
PN156
MR GARDNER: Well, it begins seven days after the day on which the notice was given. And if the notice were given, I just think - I don't want to be difficult, Commissioner, but it just - - -
PN157
THE COMMISSIONER: No, you are not. I am asking a question.
PN158
MR GARDNER: I just think there is this fundamental problem that were it somehow or other amended, then notice of it needs to be given. And that is the whole point of the operation of MI(2) and MK. I mean, that is just the way the scheme of the Act works. Commissioner, in terms of discretion, it is not terribly difficult for these employers to get it right.
PN159
In terms of your discretion we would submit that where you have got, as here, not just some mere procedural issue, but a matter having substantive impact substantially affecting the rights of potentially the organisation and employees, then as a matter of discretion, given the relative ease with which the matter can be remedied, then you should be inclined to dismiss the application and say, well, look, there is a means to fix it, it is a matter of simply getting down, getting a typewriter and getting it right.
PN160
Another observation we make about the question of discretion, Commissioner, is that an application seeking the indulgence of the Commission such as in this case, needs to approach the Commission with candour. And can I provide the Commission with a copy of a bulletin from the Victorian Hospitals Industrial Association, bulletin number 805. It is a bulletin to public sector employers dated 13 April 2004. And in the second paragraph there is a reference to:
PN161
Advice from senior counsel has just been received that the notices potentially contain a minor technical deficiency that, in the opinion of senior counsel, warrants a re-issuing of the notices in short.
PN162
And so on. Commissioner, it is submitted that when a party comes before the Commission and seeks what in effect is an indulgence of the Commission, it has got an obligation for some candour, and in these circumstances it appears from this that there is an opinion of senior counsel that suggests that the notices need to be re-issued. Now, in circumstances where that be the case, it is submitted that the Commission, as a matter of discretion, should again dismiss the application.
PN163
THE COMMISSIONER: With respect to this bulletin, are you wishing to tender it?
PN164
MR GARDNER: Yes.
PN165
THE COMMISSIONER: Is there any objection, Ms MacLean?
PN166
MS MACLEAN: No, Commissioner, we don't object to that, no.
PN167
PN168
MR GARDNER: Commissioner, can I also draw your attention to the third last paragraph, where a re-drafted notice has been requested to be returned to the VHIA as a matter of urgency. Again, Commissioner, we say that here, about a week ago notice with request, an urgent request for a re-drafted notice has been issued, and yet here we are seeking what on any view - or in our submission and in the view of senior counsel is a problematic exercise. Again we say as a matter of discretion the Commission should dismiss the application.
PN169
It is submitted that it is undesirable to create the uncertainty that we submit follows from the making of such an order. And the Commission should be very slow to do it in circumstances where these are not naive industrial participants, and it is not as though they don't act with expert advice and industrial nous. But what they have given notice about is notice that to all intents and purposes looks like a notice for the purposes of a section 170LK agreement with employees, that is, the members of the branches.
PN170
Now, absent something very significant like a new notice, we say the Commission should not just go by a stroke of a pen, purporting to amend or change that of which notice has already been given. The rules relating to service make it clear, just as we have pointed out, another basis upon which as a matter of discretion the Commission should dismiss the application. The differences in this case between that before Commissioner Mansfield are significant. First of all, he was dealing with what a challenge to a validity of a bargaining notice.
PN171
Here what is sought rather is the exercise of the Commission's discretion for what is said to be an amendment or a correction. Further, we are not now dealing with the identity of an employer, rather we are dealing with the well known and very significant difference between an organisation and employees who might be subject to an agreement. And here we are dealing with a situation where there is genuine confusion as to who - now there is confusion as to whom the negotiating parties really are, whereas it seems in the proceedings before Commissioner Mansfield there was no confusion.
PN172
The next thing we say in relation to the question of discretion is also this issue of the lack of really a direct response to the Commission's question by my learned friend as to whether there was, in fact, an error or an irregularity or the like. It was not a question that was frankly and directly answered as, in our submission, it should have been if the indulgence of the Commission is sought, as in this case.
PN173
I next turn to the question of section 111(1)(g). And we submit that if the Commission is satisfied that the application under 111(1)(q) constitutes a procedural, and hence section 111(1)(q) can apply, so then too can section 111(1)(g) apply. We say section 111(1)(q) cannot apply because it is only available subject to the Act. We say that there is no restraint or constraint on 111(1)(g) applying. We make the application under 111(1)(g)(iii), but the application for the order under 111(1)(q) be dismissed, or that the Commission refrain from further hearing that application. And the reasons for that application are the same as those already advanced in respect of discretion and in respect of our submission that the Commission doesn't have the power sought.
PN174
THE COMMISSIONER: Mr Gardner, on your characterisation of what the Commission is being asked to do, and that is to exercise its discretion pursuant to 111(1)(q), hypothetically, if the Commission decided not to exercise its discretion, wouldn't that be the end of it? Why would the Commission have to do anything with respect to 111(1)(g)?
PN175
MR GARDNER: If the Commission decided simply to dismiss the application, there would be no need to take the next step in terms of the 111(1)(g), save that there is - what section 111(1)(g)(iii) does is, that it introduces the statutory question of the public interest, that is, it is not desirable or in the public interest that the Commission hear the matter. So we raise it in that way. We say it is not in the public interest for the Commission to continue to hear the matter, and the Commission should dismiss the matter in the public interest for the sorts of reasons, or for the reasons we have indicated, and not least, of course, the very fundamental reason that we say that 111(1)(q) is not available to be used.
PN176
But you are quite right. If the Commission simply said, well, I dismiss the application in the circumstances, I don't then need to deal with the application under section 111(1)(g). It is true that would be the end of the matter. I should draw the Commission's attention to section 170LA(3) which appears in Part VIB of the Act, relating to certified agreements.
PN177
THE COMMISSIONER: Sorry, Mr Gardner, could you give me that reference again?
PN178
MR GARDNER: Yes. It is section 170LB.
PN179
THE COMMISSIONER: B for Betty?
PN180
MR GARDNER: I withdraw that. 170LA, A for Adam. In performing its functions under this part the Commission may not act under 111(1)(g)(i), (ii) or (iii). I draw the Commission's attention to it in fairness. But, of course, in this application the Commission is not exercising or performing a function under Part VI in certifying agreement or any of the functions there. The function the Commission is performing in this proceeding is considering an application under Part VI to amend a document.
PN181
In relation to the question of whether an order is necessary, it is submitted that were the Commission against us entirely, then the Commission must issue an order. We submit that it would be entirely unsatisfactory for the Commission, as my learned friend suggested, to simply in transcript say, well, I am going to waive these irregularities and proceed. The significance of a notice under the Act, and section 170MI speaks of giving written notice to other negotiating parties, it is submitted it would be entirely unsatisfactory for such a seminal and foundational document in the proceedings simply to be the subject of an observation on transcript without formal orders in each and every case, given their significance.
PN182
Commissioner, there is one matter you raised, the issue of whether, or the Commission's jurisdiction in respect of the continuation of discussions. I can indicate that - and I am not sure whether the Commission has these files - but there are bargaining periods that have been notified by my client, and I am instructed that if the Commission had concerns about the need for a basis to continue the conciliation proceedings, then those bargaining periods that have been notified by my client could be used as an appropriate vehicle to ensure the continuation of those discussions.
PN183
As I am instructed, the parties, the employer parties are the same as the employer parties that have been before the Commission in conciliation proceedings and before the Commission at the moment.
PN184
THE COMMISSIONER: But that would have to be on the basis that that is what is sought of the Commission. I don't think the Commission can unilaterally, once it gets the bargaining period notice, necessarily call it on. Isn't it normal that the initiating party has to request - - -
PN185
MR GARDNER: Well, we say two things. One is that the Commission, in our view, could call it on, but if there is any doubt about that, then my client will upon request.
PN186
THE COMMISSIONER: This is a hypothetical conversation at this point in time, but I would need the latter route in order to - - -
PN187
MR GARDNER: Well, my client is prepared to do that. And we say in those circumstances that is, again, a powerful consideration leading the Commission to simply dismiss the present application before it, and grant the section 111(1)(g) application, and let the applicants for the notice get their house in order. If there are no other matters, those are our submissions.
PN188
THE COMMISSIONER: Thank you, Mr Gardner.
[11.30am]
PN189
MR STEPHENS: Thank you, Commissioner. You have my promise that I shall be brief.
PN190
THE COMMISSIONER: Mr Stephens, that is not why we are here this morning, to be brief.
PN191
MR STEPHENS: We have got one minute before we go into conciliation.
PN192
THE COMMISSIONER: Yes. But you know how flexible our timings have been over the last few weeks.
PN193
MR STEPHENS: Commissioner, if I could just follow up with that last point that was the subject of the discussion in relation to the HSUAs preparedness to continue in discussions. It is our position that we will regardless seek to continue to pursue negotiations with the employers, indeed, with or without the auspices of the Commission. With respect to the auspices of the Commission, we believe that there is the capacity for the Commission to act under its own volition, but in relation to other matters I need to provide submissions under advisement. So I cannot take it any further than that.
PN194
But I make that point simply, Commissioner, to re-affirm our seriousness in wanting to conclude an agreement. In relation to the application before the Commission today, I guess my instructions are very, very tight, in that we see this application, at least on the face of it, as at least appearing somewhat unusual, to the extent that we are unfamiliar with and unaware of any similar situation previously occurring. And as I indicated at the outset, our submissions will be brief, and to that extent, other than, I guess, to reserve what rights we may have, we are probably not in a position to assist the Commission any further than what have the submissions already been put.
PN195
And I guess in essence it is our view that the Act is the Act, and the application is before the Commission, and to that extent it is a matter for the Commission to determine. They are our submissions and, indeed, Commissioner, they were my instructions. If the Commission pleases.
PN196
THE COMMISSIONER: Thank you, Mr Stephens. Ms MacLean?
PN197
MS MACLEAN: Commissioner, I am mindful that you do have some conciliation programmed this morning, and as you have indicated, and in exchange with my learned friend, that conciliation process has been continuing for some weeks. And one wonders as to the confusion, prejudice and other matters that my friend has alluded to in his submissions to you this morning how that has, in fact, been undertaken at all, given that like a bolt out of the blue his client now realises that an LK agreement is proposed here by the employers or, in fact, an agreement with the ANF is not proposed at all.
PN198
He put it to you that there was genuine confusion on the part of his client at any rate as to whom the negotiating parties really are. Now, that, in my submission, is an astonishing thing to fall from the counsel for the registered organisation, given that that organisation, through its properly elected and properly authorised, one imagines, branch officials have been negotiating under the auspices of the Commission on some 13 occasions - and the Commission will well be more aware of that than I am - in relation to psychiatric and general nursing areas.
PN199
There is no practical effect, in my submission, on the way that the negotiations have been undertaken, nor the manner of agreement that has been sought to be reached from the making of this order. All the order will do is make it clear to all of the parties, where clearly some confusion has now arisen, that an agreement is sought to be reached with the registered organisation. Now, if my learned friend's point about the requirement to give notice in section 170MI is right, then his submission made that the notices can stand on their face as valid to support the making of an LK agreement, just also be wrong.
PN200
Because what is required in section 170MI(3) is notice to be given to the employees, not some convenient entity that might comprise those employees, but to the employees. Now, if the provision requires notice to be given to the organisation, that is, to the registered organisation, then the notice must also be given to the employees as prescribed in the Act, that is, the employees individually. And that, of course, as the Commission will well be aware, is not cured by the description of the Victorian Branch.
PN201
And it would be beyond credibility to suggest, as my learned friend seems to, that the officials of the Victorian Branch have sat in conciliation after conciliation under the auspices of this Commission representing the individual employees with an attempt to progress a 170LK agreement. The submission has been made, Commissioner, that there will be a substantive impact flowing from the making of this order. In my submission that is just wrong.
PN202
All that will happen in the making of this order is that the notices will be corrected to disclose the appropriate legal entity with whom an agreement is sought to be made. There will be no change at all as far as the practical situation occurring right now is concerned. The parties who have been participating in extensive conciliation both under the auspices of this Commission and elsewhere will remain the same, the topics that they will be discussing will remain the same.
PN203
No evidence has been put to you, Commissioner, that there is any prejudice to the federal office of the ANF, and one could only wonder what that prejudice might be, given that it was suggested. What we seek to do is to correct the notice that has been given so that the notice is beyond the type of challenge that you heard foreshadowed this morning with references to the legal status of the Victorian Branch and the Tasmanian Branch back to the days of Williams v Hursey, and beyond.
PN204
As I indicated to you in submissions, Commissioner, that is precisely the challenge that we seek to avoid by coming to the Commission, which is the most convenient method by which this potential invalidity can be corrected. There is an error in the bargaining period notice. I made that clear in my submissions this morning. Whether that error is fatal to the validity of the bargaining period notice is a matter of argument and decision by the Commission.
PN205
What the application before you today seeks to avoid is that argument getting off the ground, by fixing the notice without, as I have already submitted, any prejudice to any person. There is no confusion here in the minds of my learned friend's clients as to who they are dealing with, what they are talking about and what sort of agreement they are trying to reach. And if there was, one would have expected that such evidence would have been given by those confused members of the Victorian Branch who are no doubt here this morning.
PN206
Commissioner, if I can just take you very briefly to the submission that was made about your power to deal with this application. My learned friend rightly took you to the opening words of section 111(1), which say "subject to this Act." That means, of course, where there are words of limitation, prohibition, then the Commission cannot exercise the more general powers set out in that particular section.
PN207
My learned friend, very late in his submissions, and I note that he said as a matter of fairness, took you to section 170LA(2) and (3). Those, Commissioner, in my submission are precisely the sort of words that you would need to find in section 170MI to prevent you using your powers under section 111(1)(q). The Commission will see that the particular functions of the Commission under section 170LA are said to not include any reference to the public interest. And then in section 170LA(3), and this is the important and operative provision in my submission:
PN208
In performing its functions under this part the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (i) (ii) or (iii).
PN209
The Commission will see no such limitation or prohibition in relation to the exercise of the powers under 111(1)(q). And, of course, as Senior Deputy President MacBean appeared to accept in the CPSU v State of Victoria decision to which my learned friend has already referred, the Senior Deputy President accepted, or appeared to accept that the powers under section 111(1)(q) were available but, of course, they were not available to cure a defect in the following by the union of its own rules.
PN210
And such is self evident, in my submission, that the Commission can only cure defects in documents and notices given under the Act, or proceedings initiated under its rules. And the Commission could have no power to cure a lack of authority brought about by non compliance with a union's rules, or an employer's articles of association, for that matter.
PN211
As I have submitted, Commissioner, what the employer is seeking to do is to bring about clarity in relation to the notice, and put it beyond doubt that an agreement is sought to be reached with the ANF, which, of course, is the only body jurisdictionally with whom such an agreement could be reached. The reference to the CFMEU ex parte Deane, doesn't take the matter any further in my submission. It is, again, a question of authority.
PN212
There is no question here that the Commission needs to grapple with needing to deal with authority to serve notices, whether rules have been complied with, matters of that kind. What there is here is the same situation that Commissioner Mansfield was dealing with, which is a misdescription of the legal entity with whom an agreement is sought to be made. And despite the extensive submissions you have heard this morning from my learned friend, this case is about no more than that.
PN213
The submission was also made that the ANF had participated in conciliation over some consideration period of time, as I have indicated, as a courtesy to the Commission and with an attempt to try and reach agreement. And one can only pose the rhetorical question in relation to that, well, who with? The parties are not in any doubt, in my submission, and the Commission will be more aware of this than me, as to what it is that they have been trying to reach agreement about, and who the parties to that agreement would properly be.
PN214
And there is no practical consequence, in my submission, if the Commission makes the order we propose, that nothing will change on the ground as far as the negotiations and the processes of the Commission. There was then suggested that there could be some reliance on the bargaining periods which have allegedly been initiated by the ANF. There is no evidence before you, Commissioner, as to what they are, what the terms of them are, and they are certainly not matters before the Commission as a vehicle at this point, as you pointed out, for any conciliation or other actions of the Commission to take place.
PN215
There was then some suggestion based on this bulletin, which I think has been marked as an exhibit. Commissioner, the bulletin was marked?
PN216
THE COMMISSIONER: Yes, it was.
PN217
MR GARDNER: R4.
PN218
MS MACLEAN: Thank you. Exhibit R4, the Commission will see that that is dated on 13 April. It says to you no more or no less than what I have said to you this morning, that is, that the notices contain potentially a minor technical deficiency. Now, the fact that the Commission will see from the organisations on whose behalf I appear this morning, that there are an extensive number of employers in this industry in respect of whom bargaining periods have been initiated.
PN219
The fact that an application has been made to this Commission to cure a defect in the notices which has been identified properly as a potential minor deficiency, given that the Act makes available that process, there is no warrant for the making of any suggestion that there is a lack of candour on my part or on those for whom I appear. What has been done is to simply avail the parties of the procedure that is set out in the Act, and an application has been made under those procedures.
PN220
So that takes the matter, in my submission, no further. The submission was also made that it would be entirely unsatisfactory to simply waive the defect that has been identified. Given what has fallen from my learned friend this morning, we would agree with that submission. This is not a matter now that the ANF have shown their colours in relation to this, that the Commission can safely leave hanging.
PN221
It is appropriate, in my submission, given the sort of matters that you now have a sense of in relation to the jurisdictional issues that may arise, and the unsatisfactory nature of leaving this issue unresolved, it is appropriate in my submission that you reach a decision as to whether you ought to make an order or not. And if you are minded to make an order, then that is something that we will have prepared, and as also have the subject of negotiations between the parties, if necessary.
PN222
As to the operative date of that order, the order is to correct an error in the description of the name in the notice. Absent any submission to you as to prejudice, confusion or validly based lack of knowledge by the ANF as to the terms of the notices and their intent and effect, then there is no basis in my submission for the notices to be corrected on any other date but the dates that they were dated.
PN223
No one here is under any misapprehension as to what the notices meant. There have been extensive provisions in the Commission based on those notices and others. The appropriate people have been there. There has been no evidence from the ANF that they were unaware at the federal level, unaware of these notices, and that they did not - that they acted on them in any other way to their prejudice. This is a technical misdescription only, and there is nothing before you, Commissioner, that could satisfy you that there was any prejudice, real or apprehended, to the ANF.
PN224
THE COMMISSIONER: The effect of the application that you are seeking today is that an organisation is going to be named, potentially named on the bargaining period notice that has not been named to date?
PN225
MS MACLEAN: That is right.
PN226
THE COMMISSIONER: That organisation would need to be, would not one think, would need to be served with that notice. So therefore wouldn't 170MK apply?
PN227
MS MACLEAN: It depends on how - - -
PN228
THE COMMISSIONER: Or are they supposed to absorb it out of the ether?
PN229
MS MACLEAN: I don't think there is any suggestion of that, Commissioner. I haven't heard any evidence from the Federal Secretary of the ANF that that person was unaware of the matters going on in the State of Victoria. That would be quite a surprise, or unaware of the notices, indeed.
PN230
THE COMMISSIONER: But, Ms MacLean, the notice was served on the Victorian Branch, they got the notice.
PN231
MS MACLEAN: Yes, they did.
PN232
THE COMMISSIONER: You are seeking that the notices be amended so that the notice provides for the federal branch.
PN233
MS MACLEAN: We would certainly give them a copy of the amended notice, Commissioner, and your order.
PN234
THE COMMISSIONER: Yes. But doesn't that trigger 170MK, because they haven't got the notice, they weren't served with the notice first time round?
PN235
MS MACLEAN: That is true. And it depends on then what one gives - what construction one gives to the day on which the notice was given. The notice as amended, we seek that the notice be amended from the date upon which it was given. And the Commission would then - the effect of section 170MK would be that the notice was given in its amended form on the date that it was given to the Victorian Branch.
PN236
THE COMMISSIONER: If the Commission was not persuaded by your arguments regarding retrospectivity, and decided, hypothetically, that they would, however, amend the notice, the order and, hypothetically speaking, the order and the amended notice would have, say, tomorrow's date?
PN237
MS MACLEAN: Yes. And the bargaining period would begin seven days hence from that date. That is, of course, as a matter for discretion if you are concerned about retrospectivity, that is a course open.
PN238
THE COMMISSIONER: The Commission generally is.
PN239
MS MACLEAN: Of course, I understand that. But might I put this to you, Commissioner. When a document is being amended in a technical rather than substantive way, we are not seeking to involve parties that aren't already involved. Certainly it is true that the requirements of the Act require the organisation to be given the notice of the bargaining period. And that is why we are here, to ensure that that is done.
PN240
The difficulty that then arises is, whether one ought to do that prospectively, or the defect can be cured retrospectively. We say that it is appropriate, given that it is a minor misdescription, that the defect is cured retrospectively. If the Commission, of course, is concerned about that, then you have open to you the ability to make a prospective order.
PN241
There is no doubt about that, and you can do that if you have - if you are not supportive of the submissions that I have made to you in respect of retrospectivity, then you feel that it is appropriate to make the amendments sought, they can be made on a prospective basis, so that it is seven days hence the bargaining period notices are tidied up in that form.
PN242
I understand the Commission's concern about retrospectivity. The provisions of section 170MK cause a - well, elevate the Commission's normal concern, and I concede that. What we seek, Commissioner, of course, is to have this matter tidied up before too much further time passes, naturally enough, given events are now moving at an unfortunately more furious pace than they have been.
PN243
The only other point that my learned friend made that I should deal with is, that the submission was made that there would be uncertainty created by making the order. No detail, of course, was advanced to support that submission, and one wonders what that could be. In my submission the only uncertainty that flows around this matter is that which is brought about by not making the order.
PN244
There is, as you have heard this morning, great learning on the status of branches which we don't want the ANF to put in its back pocket until these bargaining periods are sought to be relied upon. We want to make sure that the Commission's jurisdiction is properly based. My learned friend also indicated that there have been bargaining periods initiated by the ANF themselves. They are not before the Commission. We don't know, or the Commission doesn't know what the terms of those are.
PN245
We simply seek to have the bargaining periods initiated by the employers put on a proper footing, and that is the reason that the application has been made. If the Commission pleases.
PN246
THE COMMISSIONER: Thank you, Ms MacLean. Mr Gardner?
PN247
MR GARDNER: Commissioner, there is just one new matter that was raised by my learned friend. I wonder if I might just have one minute?
PN248
THE COMMISSIONER: Was there?
PN249
MR GARDNER: There is one new matter raised by my learned friend.
PN250
THE COMMISSIONER: Yes, I heard you, and I said, was there?
PN251
MR GARDNER: Yes. The new matter in our submission was this question of the employer somehow or other giving a copy, now serving a copy of the amended notice and the Commission's order on the federal organisation as a process. It is submitted that that in effect is a concession as to the very sort of uncertainty and difficulty about which we alert the Commission, and about which we say is a problem with the whole exercise.
PN252
THE COMMISSIONER: Right, thank you. As I indicated to the parties in conference yesterday, the Commission, with respect to this proceeding this morning, is going to reserve its decision. But obviously in issuing a formal written decision I am mindful of, I think Ms MacLean's phrasing was that things are proceeding at a furious pace. The Commission shall be mindful of that in terms of the timing of the issuing of the written reasons for decision. I shall reserve my decision in this matter therefore, and the Commission stands adjourned.
ADJOURNED INDEFINITELY [12noon]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 DRAFT ORDER PN23
EXHIBIT #R1 LETTER FROM VHIA TO ANF DATED 11/02/2004 PN131
EXHIBIT #R2 LETTER FROM VHIA TO ANF DATED 23/03/2004 PN131
EXHIBIT #R3 LETTER FROM VHIA TO ANF DATED 31/03/2004 PN131
EXHIBIT #A2 LIST IN GENERAL AREA PN135
EXHIBIT #A3 LIST IN MENTAL HEALTH AREA PN135
EXHIBIT #R4 BULLETIN 805 FROM VHIA PN168
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